## IN THE SUPREME COURT O F TEX AS

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### I N R E 

### M IC H A E L 

### N

. B L A IR 

### , R E L A T O R

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O N P E T I T I O N F O R W R I T O F M A N D A M U S

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 J U S T I C E B O Y D , joined as to Part I V by J U S T I C E W I L L E T T and J U S T I C E L E H R M A N N , concur ring in the decision. I cannot join J ustice Hec ht’s construction of section 103.154(a) of the Tim Cole Act beca use I do not ag ree that it is “a linguistically rea sonable alternative” ; even if it does achieve a “just and

rea sonable result,” the lang uag e the L eg islature chose to use in section 103.154(a ) simply will not support it. Ante at ___. But I ag ree that this petition for mandamus must be d en i ed , albeit for a differ ent rea son: the petitioner failed to comply with the Act’s mandatory proce dural require ments. I there fore concur

in the judgme nt deny ing the petition. I. Background Michae l B lair was arr ested in 1993 and char g ed with the abduction and murder of a seveny ear -old g irl. Bla ir was out on parole at the time, following his convictions in 1988 for burg lary of

a habitation and sexual molestation of a child. After his 1993 arr est, the State revoke d Bla ir’s parole and require d him to serve out the rema inder of the sentenc es fo r h i s 1 9 8 8 convictions. Although Bla ir claimed innocenc e, a jury convicted him of capital murder in September 1994. The trial courtimposed a death sentenc e, and Bla ir was place d on death row, wher e he also continued to serve his

concur rent sentenc es for the 1988 convictions. The appellate courts aff irmed Bla ir ’s murder conviction and death sentenc e, but he continued to seek habea s corpus relief throug hout the ensuing y ear s. I n 2002, while still on d ea t h ro w, Bla ir completed his concur rent sentenc es for the 1988 convictions. I n 2003, while Bla ir continued his eff orts to es t ab lish his innocenc e on the murder conviction, he voluntarily disclosed in interviews and letters that he was a serial child molester. I n these confe ssions, Bla ir provided detailed descr iptions of numerous sexual assaults of children and identified sever al of his victims. The district attorney then char g ed Bla ir with four counts of sexually molesting two of the children he identified. I n 2004, Bla ir pleade d g uilty to these char g es and was g iven four life sentenc es, three of them to run consec utively

. Thus, even if succe ssful in his eff orts to prove hi s i n n o ce n ce of capital murder and avoid the death penalty , he would likely rema in in prison for the r est of his life. Ultimately , DNA tests established that cer tain hairs and fibers that wer e cruc ial evidenc e in the murder case could not be associate d with e ither Bla ir or the murder victim. On J une 25, 2008, the Court of Criminal Appea ls (CCA) issued an o rd er gra n t i n g Bla ir’s petition for writ of habea s corpus, setting aside the murder conviction and sentenc e, and finding that Bla ir had “esta blished by clea r and convincing evidenc e that no rea sonable juror would have convicted him in light of newly discovere d evidenc e.” See E x parte Blair , Nos. AP–75954 and AP–75955, 2008 WL 2514174, at *1 (Tex. Crim. App. J une 25, 2008) (per curiam) (not desig nated for publ ication). The trial court then gra nted t he district attorne y ’s motion to dis miss the charg es and, on J uly 28, 2008, Bla ir was 2ser ving for 2004 con victi ons onl y ser ving for m

urd er & 2004 con victi ons ser ving for m urd er onl y ser ving for m

urd er and 1988 con victi ons transfe rre d from death row t o an o t h er corr ectional unit, wher e he continues to serve his four life sentenc es. The following t i m e l i ne summarizes the convictions for which Bla ir serve d in prison during the re levant per iods:

On J uly 10, 2009, Bla ir filed an application with the Comptroller’s judi ci ar y section reque sting compensa tion under the Texas Wrongf ul I mprisonment Act, now known as the Tim Cole Act. See T E X . C I V . P R A C . & R E M . C O D E §§ 103.001–.154. I n his application, Bla ir acknow ledg ed that he was not entitled to compensa tion “for any part of a sentenc e . . . during which [he] was also

s er v i n g a concur

rent sentence for another crime.” Id. § 103.001(b). Yet he soug ht compensa tio n from the date he was first arr ested on the murder char g e in 1993 until 2004, when he beg an serving the life sentenc es for sexually molesting children. At the then-a pplicable statutory rate of $100,000 per y ear , Bla ir reque sted pay ment of just over $1 million. 1 Bla ir’s application contained incorre c t s o c ia l secur ity information, so he later filed additional documentation providing corr ect information. After rec eiving the additional docum entation, the Comptroller ag ree d to trea t the application as if Bla ir had submitt ed it on Aug ust 4, 2009, even though he had actua lly filed i t near ly a m o n t h ear lier. On S eptember 18, 2009, the forty -fifth day 1993 2002 2004 2008 Lif e

A l t h o u g h B l a i r a c k n o w l e d g e d t h a t t h e 2 0 0 7 v e r s i o n o f t h e A c t g o v e r n e d h i s r e q u e s t , h e a l s o r e q u e s t e d l i f e t i m e 1 a n n u i t y p a y m e n t s i n a n a m o u n t e q u a l t o t h e l u m p - s u m p a y m e n t , r e l y i n g o n r e c e n t l y e n a c t e d ( b u t n o t y e t e f f e c t i v e ) 2 0 0 9 a m e n d m e n t s . S e e A c t s o f M a y 2 7 , 2 0 0 9 , 8 1 s t L e g . , R

. S

. , c h

. 1 8 0 , § § 2 , 1 4 ( b ) , 2 0 0 9 T e x . G e n . L a w s 5 2 3 , 5 2 6

. 3afte r Aug ust 4, the Comptroll er issued a deter mination deny ing Bla ir’s application on the g rounds that (1) the CCA’s order did not establish that Bla ir obtained habea s relief based on actua l innocenc e, and (2) the application did “not nega te whether a c oncurr ent sentenc e wa s serve d, either in prison or on par ole, for a

nother c rime or c rimes.” After rec eiving the Comptroller’s denial, Bla ir’s counsel obtained from the Texas Depa rtment of Criminal J ustice (TDCJ) a corr ecte d cer tificate of Bla ir’s time se rved in pr ison a nd discovere d, appar ently for the first t ime, that the State had revoke d Bla ir’s parole on the 1988 convictions and t hus Bla ir had serve d those sentenc es concur rently with the death sentenc e from 1993 until 2002. On September 22, 2009, Bla ir’s counsel sent an em ai l t o the Comptroller, “for mally ” reque sting an extensio n of the ten-da y deadline to submit an application to cure . The fo l l o wi n g day , the Comptroller denied that reque st, noting that the statute did not g ive th e Comptroller authority

to gr ant such a

n extension. On September

28, 2009, the tenth day

afte r t he C omptroller’s denial of Blair’s application for compensa tion, Bla ir filed a document entitled “Motion for Reconsider at i o n o f Denial of Compensation for Wrong ful I ncar cer ation and S ubmission of Newly Discover ed Evidenc e” a nd a document entitled “Objec tion to Denial of Ex tension of Time for Curing of Record.” I n his motion for rec onsideration, Bla ir challeng ed the Comptroller’s denial of his application for compensa tion. Responding to the first g round for denial, Bla ir arg ued that the CCA’s order did establish on its fac e that Bla ir was actua lly innocent of murder. Responding to the second g round, Bla ir at t ac h ed the TDCJ ’s amende d time cre dit cer tificate and acknow ledg ed that, due to the parole revoc ation, Bla ir had concur

rently serve d prison sentenc es for the 1988 convictions until 2002, and thus mig ht only 4be entitled to compensa tion for wrong ful imprisonment from 2002 until 2004. But Bla ir arg ued that

he was n ev er t h eless entitled to “substantially more” than that beca use the State had revoke d his parole only

beca use of the w rong ful arr est on the murder char g e. Shortly afte r Bla ir filed his motion for rec onsidera t i o n, the Texas Boa rd of Pardons and Paroles (at the urg ing of Bla ir’s counsel) issued an order resc inding the 1993 parole revoc ation. On October 21, 2009, Bla ir’s counsel submitt ed a copy of t his o rd er t o t h e C omptroller, along with a document entitled “Motion to Reconsider Supplemental Curing Documents,” arg uing that, in light of the Boa

rd’s order resc inding the parole revoc ation, Bla ir was entitled to compensat ion for 1993–2004, as he r equeste d in his original a pplication. On November 9, 2009, forty -two day s afte r Bla ir filed his second motion for rec onsideration, the Comptroller issued a second deter mination, ag ain deny ing Bla ir’s application. I n t his deter mination, the Comptroller ag ree d to consider B la ir ’ s two motions for rec onsideration as a single “applica tion to cure ” under the Act. But the Comptroller denied the claim on the g round that Bla ir was not el i gi b le because, due to the 2004 convictions, Bla ir was “incarc era ted and will rema in so indefinitely ” and, “ [s] imply put, Mr. Bla ir curr ently

is not a fre e man, a s require d by the Act.” Unlike her first deter

mination, the Comptr o ll e r ’ s s e c o n d d e te r mi n a ti on did not deny the claim

on the g round that the CCA’s order failed to e stablish B lair’s actua l innocenc e. She did, howeve r, restate her position that, even if Bla ir wer e elig ible, his “ concur rent sentenc es for his 1988 crimes, reg ardle ss of whether h i s p ar o l e revoc ation for those crimes was rec ently resc inded, constitute a

concur re n t s en t en ce for purposes of Section 103.001(b),” and thus he was not entitled to compensa tion for the time he concur rently serve d betwee n 1993 and 2002. The Comptroller closed

5the November 9 letter by inviting Bla ir to s ubmit another application to cure : “Should Mr. Bla ir

wish to submit another application to cure reg arding this denial letter, he should do so not later than 10 day s from the rec eipt of this denial letter, and the Comptroller’s office will promptly rec onsider any additional curing documents, if any , or further arg uments that Mr. Bla ir may want to submit in light of the stated base s in this denial letter.” Nine day s later, on November 18, 2009, Bla ir acc epted the Comptro l l er ’s i n v itation and submitt ed a document entitled “Supplemental Motion to Cure.” I n this document, Bla ir arg ued that nothing in the plain lang uag e of the statute authorized the Comptroller to deny t h e claim on the g round that he is curr ently still imprisoned. I n addition, Bla ir ag ain arg ued that the am o u n t of compensa tion should not be reduc ed due to the concur rent sentenc es Bla ir serve d from 1993–2002 following the re vocation of pa role for the 1988 cr imes. On Dec ember 30, 2009, forty -two day s afte r Bla i r’ s No v ember 18 submissi on, the Comptroller issued a t hird deter mination deny ing B lair’s c laim. This tim e, the Comptroller (a s in her second deter

mination) did not rely on the g round that the CCA order did not establish actua l innocenc e and (unlike her first two deter minations) did not addre ss the concur rent sentenc es for the 1988 convictions. I nstead, the Comptroller relied solely on the ground that Bla ir is “n o t a p er son entitled to compensa tion” beca use he rema ined imprisoned on the sexual molestation convictions. The Comptroller ag ain rea soned that the L eg islature “cle arly intends Chapter 103 compensa tion to be provided only to elig ible applicants in order that they might put their lives back toge ther afte r their rele ase,” and that Bla ir is not elig ible beca use he is “cur

rently i n ca rc er at ed and will rema in so indefinitely .” 6On J anuar y 28, 2010, Bla ir filed a petition for writ of mandamus in this Court in Cause No. 10-0067, sty led In re Michae l Nawee Blair

. I n that petition, Bla ir arg ued that the Comptroller had

err ed in finding that his curr ent imprisonment makes him ineligible for compensa tion and in finding that the statute prohibited compensa ti o n f o r th e ti me h e c o n curr ently serve d for the 1988 convictions. W e d en i ed Bla ir’s petition on April 9, 2010, and we denied his motion for rehe aring on May 28, 2010. See 53 Tex. S up. Ct. J . 564 (Apr. 9, 2010)

. Nine months later, on Marc h 4, 2011, we issued our decision in In re Smith , in which we held that the Act’s “conc urre nt-sentenc e restric tion does not apply when the wrong ful conviction is the

cause of the person serving a concur rent sentenc e in prison.” 333 S.W .3d 582, 590 (Tex. 2011). As Bl ai r p o i nts out, this holding was contra ry to the Comptroller’s position (stated in her first an d second deter

minations, but not in her third) that, if Bla ir wer e elig ible for compensa tion, he would not be eligi b l e fo r the period from 1993–2002, when he was serving concur rent sentenc es for the 1988 convictions and the 2004 murde r convic tion. On Marc h 29, 2011, Bla ir filed a new application wi t h the Comptroller, seeking compensa tion on the same bases on which he had relied in his previous submis s i o n s. I n this appli ca t i o n , which Bla ir ref err ed to as his “sec ond claim,” Bla ir arg ued that “the law has been chang ed in a substantial manner by a Supreme Court decision.” He urg ed that, “for justice and equity ,” the Comptroller should “re consider petitioner’s second claim” and rec onsider “docume nts submitt ed in the original case for consideration of this claim

. ” S p ecif ically , he arg

ued that the Comptroller’s prior deter mination t h at an y compensa tion must be reduc ed due to the concur rent sentenc e for the 1988 convictions was err oneous in light of our decision in In re Smith

. Finally , he 7asser

ted that the 2009 version of the Act g overne d this application and he was entitled to rec eive just over $850,000 unde r the a mended c ompensation rate

. On May 13, 2011, the Comptroller issued a deter mination deny ing Bla ir’s new claim on three g rounds. First, the Comptroller noted that the new claim was “virtually identical” to the orig inal claim and thus must be denied on the same g rounds as the first. Second, the Comptroller rea soned that the new application was eff ectively a challeng e to the denial of the first application, which had “alr eady bee n fu lly adjudicate d and finally resolved.” Finally , the C omptroller asserted t hat In re Smith had “no bear ing” on the Comptroller’s decision bec ause she based he r dete rmination not on any concur

rent sentenc e but s o l el y on the g round that, “as was stated in the Comptroller’s final denial letter o f Dec ember 30, 2009,

. . . Bla ir was not a person entitled to compensa tion under Chapter 103.” Bla ir did not submit an application to cure in response to the May 13 denial. I nstead, on J une 9, 2011, he fi l ed the petition for writ of mandamus that we addre ss today

. Bla ir challeng es the Comptroller’s denial of his second application on a si n gl e ground: his curr ent i mprisonment does not disqua lify him f

rom compensa

tion for the time he serve d only under the wrong ful conviction. The Comptroller disag ree s with Bla ir’s construction of the Act but also responds that the Comptroller did not have a duty to consider B lair’s second application for the same compensa tion that the Comptroller previously denied.

8II. Stand ard of Review “As Chapter 103 claims are entirely a statutory cre ation, we look to the words of the statute” to resolve those claims. State v. Oakley , 227 S

. W

. 3 d 5 8, 60 (Tex. 2007) (re ly ing on statutory lang uag e to deter

mine that Chapter 103 claims are not assig nable)

. “The construction of a st atute is a question of law that we revie w de novo,” and “[o] ur task is to eff ectua te the L eg islature’s expressed intent.” In re Allen , 366 S.W .3d 696, 703 (Tex. 2012). Our sear ch for leg islative intent beg ins with the statute’s lang uag e: “L eg islative intent is best reve aled in leg islative lang uag e.” In re Office of Att’y

Gen. ,— S.W .3d —, —, 2013 WL 854785, at *4 (Tex. Ma r. 8, 2013). When the statute’s lang uag e is una

mbiguous and does not lead to a bsurd re sults, our searc h also ends ther e: “Where text is clea

r, text is deter

minative.” Entergy Gulf States, Inc. v. Summers , 282 S.W .3d 433, 437 (Tex. 2009). W e wi l l n o t apply rules of construction or other extrinsi c aids when the statute is n o t ambig uous. Fitzgerald v. Advanc ed Spine Fixation Sys., Inc. , 996 S.W .2d 864, 865–66 (Tex. 1999); see Cit y of Rock wall v. Hughes , 246 S.W .3d 621, 626 (Tex. 2008) (“When a st atute’s langua g e is clea r and unambig uo u s , i t i s i n appropriate to resor t to rules of construction or extrinsi c aids to construe the lang uag e.”)

. I nstead, we take the L eg islature at its word, as the truest measure of what it intended is what it enac ted. See Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson , 209 S.W .3d 644, 651–52 (Tex. 2006). This t ex t -b as ed approa ch require s us to study the lang uag e of the specific section at issue in the context of the statute as a whole. In re Office of Att’y Gen. , — S.W .3d at —, 2013 WL 854785, at *4; Fitzgerald , 996 S.W .2d at 866. We endea vor to g ive “ef

fec t to ever

y word,

9clause , and sentenc e.” Tex. Dep’ t of Ins. v. Am. Nat’l Ins. Co. ,— S.W .3d —, —, 2012 WL 1759457, at *8 (Te x . May

18, 2012). III.

The Tim Cole Act I n 1956, the people of Texas amende d the Texas Constit ution to authorize the leg islature to “g rant a id and compensa tion” to any person who ha s “paid a

fine or se rved a

sentenc e in prison . .

. for an offe nse for which he or she is not g uilty .” T E X . C O N S T . art. I I I , § 51–c. The L eg islature

enac ted the first wrong ful imprisonment statute in 1965, and later codified it as the Texas Wrongf ul I mprisonment Act in Chapter 103 of the Civil P rac tices and Reme dies Code. See I n re Allen , 366 S

. W .3d at 699–700; In re Smith , 333 S.W .3d at 585; see also T E X . C I V . P R A C . & R E M . C O D E §§ 103.001–.154. I n 2001, the L eg islature amende d the Act in two way s that are pertinent to this appea l. First, it excluded from compensation any time served unde r a c oncurr ent sentenc e for another crime for which the person was not wrong fully convicted. See Act of May 18, 2001, 77th L eg ., R.S., ch. 1488, § 1, 2001 Tex. Gen. L aws 5280, 5283; T E X . C I V . P R A C . & R E M . C O D E § 103.001(b) ( “A pe rson is not entitled to compensa tion under Subsection (a) for any part of a sentenc e in prison during which the person was also serving a concurre nt sentenc e for another crime t o whi ch S ubsection (a) does not apply .”). Second, it provided for te rmination of compensa tion pay ments “if, af

ter the date t he person become s elig ible for compensa tion under Section 103.001, the person is convicted of a crime punishable as a felony

. Compensation pay ments terminate under this subsection on the date of the

1 0subsequent convic tion.” See Act of Ma y 18, 2001, 77th L eg ., R.S., ch. 1488, § 1, 2001 Tex. Gen. L aws a t 5283; T E X . C I V . P R A C . & R E M . C O D E § 103.154. When Bla ir first soug ht compensa tion in J uly 2009, th e Ac t permitted a claimant to either ad m i n i s tratively apply for compensa tion with the Comptroller’s judiciary section or to file sui t ag ainst the State in a court of competent jurisdiction. See Act of May 18, 2001, 77th L eg ., R.S., ch. 1488, § 1, 2001 Tex. Gen. L aws 5280, 5283 (for m er l y T E X . C I V . P R A C . & R E M C O D E § 103.002 (re p ea l ed )) (“ A person entitled to compensa tion

. . . may proce ed by following the provisions for administratively awa

rded compensation under Subchapter B or by filing suit under Subchapter C, but a person may not seek c ompensation under both Subcha pters B and C.”). T hat s ame y ear , the l egi s l ature amende d the Act to remove the l itigation opti on, leaving the admini strative proces s as the only authorized proce dure. See Act of May 11, 2009, 81st L eg ., R.S., ch. 180, § 12(1), (2), 2009 T E X . G E N . L A W S 523, 526 (re pealing section 103.002 and subchapte r C). Although Bla ir could have filed a suit for compensa tion in J uly 2009, he elec ted to pursue his claim throug h the administrative proce ss. For the administrative proce ss, the Act establishes detailed proce dures by which a claimant may obtain benef

its and service s, and imposes cer tain duties on the Comptroller for the administration of these proce dures. See T E X . C I V . P R A C . & R E M . C O D E §§ 103.001–.154. To qualify for compensa tion, a claimant “must” file an application with the Comptroller “not later than the third anniver sary

of the date” the claimant rec eived a pardon or was g rante d habea s corpus re lief on the basis of innocenc e. Id. § 103.003. The claimant “must” file cer tain documents with the application, including a verifie d copy of the pard o n or court order and a statement provided by the TDCJ 1 1verify

ing t h e l en gt h o f the incar cer ation. Id. § 103.051(a)

. Upon rec eipt of the application, the Comptroller “shall” deter mine the claimant’s elig ibilit y and the amount of any compensa tion owed, id. § 103.051(b), “shall” do so by considering only the verifie d documents that must acc ompany the application, id. § 103.051(b–1), and “must” do so “not later than the 45 t h d ay af t er t he date the application is rec eived.” Id. § 103.051(c)

. The Comptroller’s duty to deter mine elig ibilit y is “pure ly minist eria l.” Id. § 103.051(b–1). I f th e Co mp tr o ll er deter

mines that the claimant is elig ible for compensa tion, she “shall” make the pay ment to the claimant, “to the extent that funds are available and appropr iated for that purpose, not la ter than the 30th da

y afte r the date the comptroller g rants the application.” Id. § 103.151(a)

. I f, on the other

hand, the Comptroller de nies the cla im, she “must state the rea son for the denial.” Id. § 103.051(d). Then, under the version of the Act applicable to Bla ir’s claim, the claimant “must” submit an application to cure “not later than the 10th day afte r the date the denial is rec eived.” See Act of May 18, 2011, 82nd L eg ., R.S., ch. 698, § 5, 2011 T E X . G E N . L A W S 1663, 1665 (ame nding T E X . C I V . P R A C . & R E M C O D E § 103.051, which curr ently g ives the claimant thirty day s to submit

an application to cure ). The Comptroller “shall” then re- deter mine elig ibilit y and the amounts owed “not later than the 45th day ” afte r she rec eives the application to cure . Id. I f the Comptroller denies the claim afte r the claimant submits an application to cure , the claimant “may ” then bring an action for mandamus relief

. Id. § 103.051(e)

. The mandamus action “must be filed in this Court beca use only the Supreme Court may issue a writ of mandamus ag ainst an office r of the executive depar tment of this State, such as the Comptroller.” In re Smith , 333 S.W .3d at 585.

1 2IV. The Im pact of Other Convictions The Comptroller contends that Bla ir is not elig ible to rec eive any compensa tion beca use he has been convicted of c h il d mole station, is curr ently imprisoned for those convictions, and will likely

rema in in prison for the rest of his life

. Acc ording to the Comptroller, the purpose of the Act is to help rele ased inmates rebuild their lives and reinteg rate into society afte r they ar e released from prison, and this purpose would not be advanc ed by pay ing compensa tion to someone who is in prison for other crimes and will spen d t h e rest of hi s life t here

. The L eg islature could not have intended

so absurd a result, the Comptroller continues, and there fore the Act cannot be rea d literally

. J ustice Hec ht reje cts this arg ument, pointing to sever al of the Act’s provisions that demonstrate that helping the claimant reinteg rate into society is not the Act’s sole leg islative purpose. On this point, I ag ree with J ustice He cht, for the rea sons he has de scribed. Bu t J ustice Hec ht g oes on to hold that section 103.154(a) bars Bla ir from rec ei v i n g compensa tion, and I do not ag ree with his construction of that section. Section 103.154(a) provides: [C ]om pensation pay

ments to a person . . . terminate if, afte r the date the person become s elig ible for compensa tion

. . . , the person is convicted of a crime punishable as a felony

. Compensation pa y ments terminate unde r this subsection on the date of the subsequent c onviction. T E X . C I V . P R A C . & R E M . C O D E § 103.154(a)

. Although neither Bla ir nor the Comptroller arg ues that 2

T h i s p r o v i s i o n d o e s n o t a p p l y t o c o m p e n s a t i o n f o r c h i l d s u p p o r t p a y m e n t s a n d i n t e r e s t o n c h i l d s u p p o r t 2 a r r e a r a g e s . I

d

. § 1 0 3

. 1 5 4 ( a ) , ( c )

. 1 3section 103.154(a) applies i n t h i s case , J ustice Hec ht conclude s that this provision pree mptively 3 terminates Bla ir’s rig ht to compensa tion. But that position cannot b e s q u ar ed with the statute’s 4 plain lang uag e. By its e x press terms, section 103.154(a) terminates compensa tion pa y ments if the claimant is convicted of a felony “ after the date the person become s elig ible for compensa tion.” Id. (empha sis a dded). Be cause Bla ir was convicted of child molestation before he beca me elig ible for compensa tion, there is no “subseque nt conviction” to “ter minate” his pay

ments. I ag ree with the parties that se ction 103.154(a) does not apply

. See id. J ustice Hec ht contends that the phrase “is convicted” ref ers not “to the act of adjudication,” but to the status of the claimant as a person who “stands convicted” of a felony

. I ag ree that, under

some circ umstances, the phrase “is convicted” could rea sonably be interpre ted to mean “stands convicted,” but not in the context of this statute. The statute states that pay ments “ terminate if, after the date the person become s elig ible

. . . the person is convic ted of a crime punishable as a felony

. Compensation pay

ments terminate under this subsection on the date of the subsequent convic tion .” Id. (emp h as es ad d ed). For pay ments to “ter

minate,” the pay

ment proce ss, or at least the rig ht to

rec eive pay

ments, must have commence d in some form in the first place , and the terms “af ter” and “subseque nt” clar ify that a conviction that “ter minates” the pay

ments is one that has not y et occur red

T h e C o m p t r o l l e r c o n t e n d s t h a t “ [ s ] e c t i o n 1 0 3

. 1 5 4 ( a ) i s i r r e l e v a n t t o B l a i r ’ s c l a i m ” b e c a u s e B l a i r ’ s c u r r e n t 3 i m p r i s o n m e n t r e n d e r s h i m i n e l i g i b l e f o r c o m p e n s a t i o n i n t h e f i r s t p l a c e . B l a i r a g r e e s t h a t s e c t i o n 1 0 3

. 1 5 4 ( a ) d o e s n o t a p p l y t o h i m f

o r t h e d i f

f e r e n t r e a s o n t h a t h e w a s c o n v i c t e d o f o t h e r c r i m e s b e f

o r e h e b e c a m e e l i g i b l e f o r c o m p e n s a t i o n w h i l e s e c t i o n 1 0 3

. 1 5 4 ( a ) o n l y a p p l i e s t o a n i n d i v i d u a l c o n v i c t e d o f o t h e r c r i m e s a f t e r b e c o m i n g e l i g i b l e f o r c o m p e n s a t i o n .

T h e c o m p e n s a t i o n B l a i r s e e k s i s p a i d t h r o u g h a n a n n u i t y . S e e T E X . C IV . P R A C . & R E M . C O D E § 1 0 3

. 0 5 3

. I f 4 s e c t i o n 1 0 3

. 1 5 4 ( a ) t e r m i n a t e s p a y m e n t o f t h e a n n u i t y f r o m t h e d a t e o f B l a i r ’ s c h i l d m o l e s t a t i o n c o n v i c t i o n s , t h e a n n u i t y p a y m e n t s t o B l a i r w i l l n e v e r b e g i n i n t h e f i r s t p l a c e . 1 4when the claimant become s elig ible to rec eive the pay ments. Whil e Bla ir may “stand convicted” of child molestation afte r he beca me elig ible to rec eive pay ments, his is not a “subseque nt conviction” that occur red “ afte r” his date of elig ibilit y . Thus, I disag ree with J u s t i ce He cht that section 103.154 “admits of two linguistically

rea sonable int erpr etations.” Ante at __. Whil e the phrase “is co n v i ct ed ” alone is subject t o more than one rea sonable interpre tation, the statute as a whole is subject to only one. See T E X . C I V . P R A C . & R E M C O D E § 103.154; see also TGS-NOPEC Geophy sical Co. v. Combs , 340 S.W .3d 432, 441 (Tex. 2011) (“L ang uag e cannot be interpre ted apar t from contex t

. T h e m ea n ing of a word that appea rs ambig uous when viewed in isolation may become clea r when the word is analy

zed in light of the terms that surround it.”). I f the L eg islature intended to bar compensa tion for all claimants who had ever been convicted of a felony , whether befor e or afte r they become elig ible for compensa tion, it could have done so and may still do so. But we may

not rea d into the statute a leg islative intent that is direc tly co n t ra ry t o the lang uag e the L eg islature selec ted and enac ted into law. See Tex. Lottery Comm’n v. First State Bank of DeQue en , 325 S.W .3d 628, 637 (2010) (“ [ W ] e m u s t take statutes as we find them and first and primarily seek the L eg islature’s intent in its lang uag e. Courts

are not responsible for omissions in leg islation, but we are responsible for a t ru e and fair interpre tation of the law as it is written.”) (interna l citation omitted). Even i f we believe the L egi s l ature “may have made a mistake” in their wording of section 103.154(a) , we “ar e not empower ed to ‘fix’ the mistake by disreg arding direc t and clea r statutory lang uag e t hat does not creat e an ab s u rdi ty .” Id. at 638. Thoug h it may not be desirable under the circ umstances of this

1 5case , it is not absurd for the State to c ompensate Bla ir for the ten y ear s he spent on death row for a

murder he did not commit. I mportantly , the L eg islature expressly prohibited claimants from rec eiving compensa tion for any time serve d when ser v i n g a sentenc e for another crime in addition to the crime of which the claimant is innocent. T E X . C I V . P R A C . & R E M . C O D E § 103.001(b). The L eg islature has thus addre ssed the impact of other convictions that occur before the claimant becomes elig ible for compensa tion, and h as d o n e s o by deny ing compensa tion for the time serve d on those other convictions, not by deny ing elig ibilit y for compensa tion completely

. See id. J ustice Hec ht contends this construction of the statute, while “ling uistical l y rea sonable,” has unrea sonable conseque nces beca use it trea ts convictions differ ently depending on whether they occur befor e or afte r the date the person become s elig ible for compensa tion under the Tim Cole Act. Ante at __. He acknow ledg es that s u ch a d i s t inction could be rea sonable in light of the deter rent eff ect termination of compensa tion could have on future c rimes (but not past cr imes), but then rejects t hat basis for the distinction on the ground that the s tatute does not indicate th at t h e L egislature was so motivated. Ante at __. But we must construe statutes based on the text the L eg islature enac ted, not on specula tion abou t i n dividual leg islators’ motivations. See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev

. Comm’n , 461 U.S. 190, 216 (1983) (“[I ]nqui ry into leg islative motive is often

an unsatisfac tory venture

. What motivates one leg islator to vote for a statute is not nece ssarily what mot i v at es s co res of others to enac t it.”) (citation omitted). Moreove r, rea sonablene ss is not the standard for esche wing plain statutory lang uag e; rathe r, “[i] f a statute is wor d ed cl ea rly , we must 1 6honor its plain lang uag e, unless that interpre tation would lead to absurd results.” Combs v. Health

Care Servs. Corp. , 401 S.W .3d 623, 629 (Tex. 2013) (empha sis added)

. J ustice Hec ht d o es not

asser t, and I do not think he rea sonably could asser t, that it would be absurd for the Act to distinguish betwee n past and prese nt crimes in deciding who may rec eive compensa tion. Even if this distinction “see ms strang e”—a

nd I do not ag ree that it is an unusual or unrea sonable distinction to make—“ we

rea d unambig uous statutes as they are written, not as they

make the most policy

sense.” Id. I n light of the lang uag e of the statute, I conclude that Bla ir’s 2004 convictions prohibit him from rec ei v i n g compensation for time serve d beg inning in 2004 but do not prohibit him from

rec eiving compensa tion for time serve d prior to that date. V. F ailure to Com ply w ith P roce dural Requi rem ents The Comptroller contends that we should deny Bla ir' s petition for writ of mandamus beca use she did not abuse her discretion by deny ing Bla ir’s second application. At least in the absenc e of a materia l chang e in circ umstances, she arg ues, she was “u n d er no duty to rec onsider her denial of Bla ir’s resubmitted claim” be cause “the Ac t clear ly contemplates tha t, once a mandamus action is denied, as it wa s in Bla ir’s case , the matter is ended, and no further proce eding s on the same claim

are contemplated.” I ag ree , althoug h I conclude that Bla ir’s failure to comply with other proce dural require ments also prec ludes h i s cl ai m . This Court has previously observe d that a Tim Cole Act claimant is “ required to follow cer tain statutory proce dures to obtain compensa tion,” In re Smith , 333 S.W .3d at 585 (empha sis added) , but w e have not ha d occa sion to addre ss the se proce dures in detail. As I rea d the lang uag e of the statute, Bla ir cannot rec eive the compen s ati on that he seeks 1 7beca

use (1) he repe atedly failed to comply with the Act’s p roce dural require ments and deadlines, which are mandatory and are the exclusive means for obtaining compensa tion under the Act and for obtaining judicial revie w of the Comptroller’s elig ibilit y deter m i n at i on, and (2) the Act’s

a p p li c a ti o n - f o r - c ompensation proce dure does not authorize multipl e applications o r p e ti ti o n s f o r w r it of mandamus for the same compensa tion, at least in the absenc e of any materi al change in circ umstances. A. “May,” “Must,” and “Sh all” To deter mine whether

the L eg islature intended a statutory provision to be mandatory , “we consider the plain meaning of the words used, as well as the entire act, its nature and object, and the conseque nces that would follow from eac h construction.” Helena Chem. Co. v. W ilkins , 47 S.W .3d 4 8 6 , 4 9 4 (Tex. 2001) (quoting Albertson’s, Inc. v. Sinclair , 984 S.W .2d 958, 961 (Tex.1999) ; Chisholm v. Bewley Mills , 155 Tex. 400, 287 S.W .2d 943, 945 (1956))

. I would hold that the plain lang uag e of the Tim Cole Act’s proce dural provisions, by their terms and considere d in light of the Act as a whole, demonstrates the L eg islature’s intent that a claimant must satisfy eac h of the Act’s step-by -step mandates befor e he may proce ed to the next step in the proce ss, and the claimant must compl et e al l o f t h e st eps before he may seek mandamus relief from the Comptroller’s decision t o deny elig ibilit y . 1. P lain L anguage As descr ibed above, the Tim Cole Act’s presc ribed administrative proce ss applies differ ent direc tives—“may ,” “must,” or “shall”—f

or diffe rent proc edura l steps:

1 8• The claimant “must” file an application acc ompanied by specifie d documentation within three y ear s of an e ligible pa rdon, orde r, or r elief. 5

• The Comptroller “sha ll” deter mine elig ibilit y

and the a mount owed by

considering only the specifi ed d o cumentation and “must” do so within forty -five day s afte r rec eiving the applica tion. 6

• I f the Comptroller g rants the claim, she “shall” make the pay ment within thirty day s, to the extent funds are a

vailable a nd appropr iated. 7

• I f the Comptroller denie s the claim,

• she “must” state the re ason for the denial, a

nd

• the claimant “must” submit an application to cure within ten day s (thirty day s under the curr ent ver sion of the Act)

. 8

• I f the claimant submits an application to cure , the Comptroller “shall” ag ain deter mine elig ibilit y

and the a mounts owed within forty -five da y s. 9

• I f the Comptroller denies the claim afte r an application to c ure, the claimant “may ” then bring an ac tion for mandamus re lief. 1 0 T h e L e g islature has expressly define d eac h of these direc tives: with limit ed exceptions, when

a statute uses the term “must,” it “ cre ates or rec og nizes a condition pr ece dent,” T E X . G O V ’ T C O D E § 311.016(3); when a statute uses the term “shall,” it “imposes a duty ,” id. § 311.016(2); and when

T E X . C IV . P R A C . & R E M . C O D E § 1 0 3

. 0 0 3

. 5 I d

. § 1 0 3

. 0 5 1 ( b

– 1 ) , ( c )

. 6 I d

. § 1 0 3

. 1 5 1

. 7 I d

. § 1 0 3

. 0 5 1 ( d ) ; s e e A c t o f J u n e 1 5 , 2 0 0 1 7 7 t h L e g . , R

. S

. c h

. 1 4 8 8 , § 1 , 2 0 0 1 T E X . G E N . L A W S 5 2 8 0 , 5 2 8 3 8 ( e n a c t i n g T E X . C IV . P R A C . & R E M . C O D E § 1 0 3

. 0 5 1 ( d ) ; A c t o f M a y 1 8 , 2 0 1 1 8 2 n d L e g . , R

. S

. , c h

. 6 9 8 , § 5 , 2 0 1 1 T E X . G E N . L A W S 1 6 6 3 , 1 6 6 5 ( a m e n d i n g T E X . C IV . P R A C . & R E M . C O D E § 1 0 3

. 0 5 1 ( d ) )

.

T E X . C IV . P R A C . & R E M . C O D E § 1 0 3

. 0 5 1 ( d )

. 9 I d

. § 1 0 3

. 0 5 1 ( e )

. 10 1 9a statute uses the term “may ,” it “cr eate s discretionar y authority or g rants per

mission or a power,” id. § 311.016(1). These defini t i o n s apply to all statutes, “unless the context in which the word or phrase appea

rs nece ssarily require s a differ ent construction” or “a differ ent construction is expressly provided by statute.” T E X . G O V ’ T C O D E § 3 1 1 .016. The Tim Cole Act does not provide an alterna tive meaning for these terms, and as discussed below, nothing in the Act contextually compels

a contra ry construction. I n fac t, g iving the words “may ,” “must,” and “shall” in the Act’s proce dural provisions their plain meaning , as specifie d by the L eg islature in the Code of Construction, r esults in an order ly administrative proce ss for claimants to rec eive compensa tion without undue burden or delay for the c laimants or the Comptroller. See T E X . C I V . P R A C . & R E M . C O D E § 103.051. Thus, I construe the statutorily -re quired proc ess in the following manner :

• Bla ir had to fi l e an application for compensa tion, acc ompanied by the documents l isted in the statute, within three y ear s of elig ibilit y , as a condition prec edent t o compensa tion under the Ac t. 1 1

• I f Bla ir satisfied this prer equisite, then the Comptroller had a duty to determ i n e Bla ir’s elig ibilit y and the amount owed, by considering only the documents listed in the statute; and she had a duty to deny the claim if the documents did not clea rly indicate on their

fac e that B lair wa s entitled to compensation. 1 2

• The Comptroller’s deter mination, within f

orty -five day s, that Bla ir was not elig ible and her statement of the rea sons tha t he was not elig ible wer e conditions prec edent to Blair’ s obliga tion to file an applica tion to cure within ten day s. 1 3

• After the Comptroller sati s fi ed these conditions, Bla ir’s filing of an application to cure within ten day s was a condition prec edent to any further duty or oblig ation by

T E X . C IV . P R A C . & R E M . C O D E § 1 0 3

. 0 0 3 , 1 0 3

. 0 5 1 ( a ) ; T E X . G O V ’ T C O D E § 3 1 1

. 0 1 6 ( 3 )

. 11 T E X . C IV . P R A C . & R E M . C O D E § 1 0 3

. 0 5 1 ( b ) , ( b

- 1 ) ; T E X . G O V ’ T C O D E § 3 1 1

. 0 1 6 ( 2 )

. 12 T E X . C IV . P R A C . & R E M . C O D E § 1 0 3

. 0 5 1 ( c ) , ( d ) ; T E X . G O V ’ T C O D E § 3 1 1

. 0 1 6 ( 3 )

. 13 2 0the Comptroller. 1 4

• I f Bla ir timely submitt ed an ap p l i ca t i on to cure , the Comptroller had a duty to redeter mine elig ibilit y

for c ompensation within forty -five da y s. 1 5

• Bla ir had permission to bring an act i o n for mandamus relief if the Comptroller denied his cla im after he submitt ed an a pplication to cure

. 1 6 2. The Nature of the Act and th e Consequences of Construction This construction of the Act’s proce dural require ments is consistent not only with the plain meaning of the words used, but also the Act as a whole, its nature and object, and the conseque nces that follow from the construction. See W ilkin s , 47 S.W .3d at 494 (identify ing considerations for construction). I t obliga tes the C omptroller t o ac t wi t h re lative ex pedienc y but, at each st ep in the proce ss, conditions the Comptroller’s duty on the claimant’s previous filing of documents that will assist the Comptroller in perf orming that duty

. See T E X . C I V . P R A C . & R E M . C O D E § 103.051. The claimant is not the o n l y p articipa nt subject to proce dural prer equisites—the Comptroller’s timely perf ormanc e of her duty

to determine e ligibility

and state the rea sons for her denial of a

claim i s a condition prec edent to the c laimant’s obliga tion to file an applica tion to cure within ten day s after the denial. See id. § 103.051(c) , (d). As the claimant’s application and supporting documentation assist the Comptroller in evalua tin g h i s el igibility , the Comptroller’s statement of rea sons for her denial of the claim assist the claimant in his eff orts to cure the ca

use of the Comptroller’ s denial.

S e e A c t o f J u n e 1 5 , 2 0 0 1 7 7 t h L e g . , R

. S

. , c h

. 1 4 8 8 , § 1 , 2 0 0 1 T E X . G E N . L A W S 5 2 8 0 , 5 2 8 3 ( e n a c t i n g T E X . 14 C IV . P R A C . & R E M . C O D E § 1 0 3

. 0 5 1 ( d )

.

S e e A c t o f J u n e 1 5 , 2 0 0 1 7 7 t h L e g . , R

. S

. , c h

. 1 4 8 8 , § 1 , 2 0 0 1 T E X . G E N . L A W S 5 2 8 0 , 5 2 8 3 ( e n a c t i n g T E X . 15 C IV . P R A C . & R E M . C O D E § 1 0 3

. 0 5 1 ( d ) ) ; T E X . C IV . P R A C . & R E M . C O D E § 1 0 3

. 0 5 1 ( d ) ; T E X . G O V ’ T . C O D E § 3 1 1

. 0 1 6 ( 2 )

.

T E X . C IV . P R A C . & R E M . C O D E § 1 0 3

. 0 5 1 ( e ) ; T E X . G O V ’ T . C O D E § 3 1 1

. 0 1 6 ( 1 )

. 16 2 1But once the Comptroller has satisfied her duty by providing the claimant with the rea sons

for her denial, the onus shifts back to the cl ai m ant to comply with his duty to timely file an application to cure . See id. § 1 03.051(d). The Act’s proce ss for an application to cure and redeter mination of eligibility g ive bot h the claima n t an d the C omptroller one opportunity to corr ect any err ors. A claimant’s fai l u re t o satisfy his part of this proce ss—a timely application to

cure —prec ludes him from proce eding to the next step in his quest for compens at ion; and the Comptroller’s failure to fulfill her part of this proce ss—re-de termination of elig ibilit y —subjects her to this Court’s mandamus authority

. See id. § 103.051(a) , (d), (e) ; In re Allen , 366 S.W .3d at 701; In re Smith , 333 S.W .3d at 585. The proce dure for judicial revie w of the Comptroller’s decision is likew ise consistent with the Act as a whole. The Act provides that the Comptroller’s “duty to de termine the elig ibilit y of a claimant” is “pure ly minist eria l,” id. § 103.051(b–1), and thus a claimant could, under g ener al law, seek a writ of mandamus to compel the Comptroller to make a d et er m ination of elig ibilit y if the Comptro l l er failed to do so within the time provided by the statute. See, e.g. , In re Smith , 333 S.W .3d at 585 (“The Court’s mandamus authority extends ‘to order or

compel the perf

ormanc e of

a judicial, minist eria l or discretionary act or duty that, by state law, the office r or office rs are authorized to pe rfor

m.’”) (citing T E X . G O V ’ T C O D E § 22.002(c) and T E X . C O N S T . art. V, § 3). But the L eg islature has also aff orded claimants under the Act a specific avenue for judicial revie w of the Comptroller’s decision to deny a claim, if the claimant filed an application to cure and complied with the other r equire d steps. See T E X . C I V . P R A C . & R E M C O D E § 103.051(e)

. To allow Bla ir to seek mandamus revie w of the Comptroller’s substantive decision without 2 2first filing an application to cure and invoking the Comptroller’s duty to re- deter mine his elig ibilit y would rende r the statute’s re- deter mination p ro ce s s optional for claimants (thoug h not for the Comptroller), contra

ry to the s tatute’s mandatory lang uag e with respe ct t o both the C omptroller’s

ac t i o n s and the claimant’s actions. See id. § 103.051(a) –(d). And if substantive revie w of th e

corr ectne ss of the Comptroller’s elig ibilit y deter mination is available at any stag e of the compensa tion proce ss, the lang uag e in subsection (e) that g rants permission for a mandamus action “[i] f the comptroller denies a claim afte r the claimant submits an ap p l i cation [t o cure ]” is superf luous. T E X . C I V . P R A C . & R E M C O D E § 1 0 3

. 0 5 1 (e ); see also Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue , 271 S.W .3d 238, 256 (Tex. 2008) (“The Court must not interpre t the statute in a manner

that rende rs any

part of the statute meaning less or super fluous.”). Moreove r, the L eg islature’s cre ation of a ri gh t t o revie w under expressly define d circ umstances evidenc es a leg islative expectation that the same rig ht to revie w is not available when those circ u m s t an ce s are not prese nt. See PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P’ship , 146 S.W .3d 79, 84 (Tex. 2004) (“When the L eg islature includes a rig ht or reme dy in one part of a code but omits it in another , that may be prec isely what the L eg islature intended,” and “we must honor that differ ence .”); cf. T E X . G O V ’ T C O D E § 311.034 (“I n order to prese rve the leg islature’s interest in manag ing state fiscal matters throug h the appropr iations pro cess, a statute shall not be construed as a waiver of sovere ign immunit y unless the waiver is eff ecte d by clea

r and unambig uous lang uag e. . . . Statutory

prer equisites to a suit, including the pr ovision of notice, ar e jurisdictional require ments in all suits ag ainst a g overnme ntal entity .”).

2 33. Other Case s Construing S tatutor y Use of “Must”

This construction of the Act’ s proce dural re quirements is also consistent with this Court’s prec edent in a

nalog ous situations. See, e.g. , Jose Carreras, M.D., P.A. v. Marroquin , 339 S.W .3d 68, 72 (Tex. 2011) (holding that health car e liability claimants’ failure to include authorization form with notice prec luded claimants from availing themselves of statutory t o l l i ng provision beca use statute provided that “ notice must be acc ompanied by the authorization f orm”) (quoting T E X . C I V . P R A C . & R E M C O D E § 74.251(a) ) (emphasis added) ); Edwards Aquifer Auth. v. C hem. Li me, Ltd. , 291 S.W .3d 392, 404–05 (Tex. 2009) (holding that provision in Edwar ds Aquifer Authority Act that “dec lara tion of historical use must be filed [on or befor e Marc h 1, 1994]” prohibited late-f iled applications) (emphasis added) ; see also Helena Chem. Co. v. W ilkins , 47 S.W .3d 486, 492 (Tex. 2001) (h o l d i n g t hat use of “must” in Texas Seed Arbitration Act meant that “the purcha ser must submit the claim to arbitra tion as provided by this chapte r as a prerequisite to the exercis e o f t h e purcha ser’ s rig ht to maintain a leg al ac tion ag ainst the labele r”)

. I n Edwards Aquifer , we obse rved: We have said that “[t] he word ‘must’ is g iven a mandatory meaning when followed by a noncompliance penalty ” but this does not sug g est that when no penalty is p rescribed, “must” is non-manda tory

. “When the statute is silent [reg arding t h e penalty for noncompliance ], we have looked to its purpose for g uidance .” The EAAA does not sug g est that an app l i cant can be fined for a late filing or that the water allocate d should be reduc ed acc ording ly

. The only penalty the EAAA sug g ests is that late applications will not be consider ed. 291 S.W .3d at 404 (citation omitted); see also W ilkins , 47 S.W .3d 486, 494 (“When a statute is silent about the conseque nces of noncompliance , we look to the statute’s purpose to deter mine the proper conseque nces.” ). 2 4Her e too, the only penalty sug g ested by

the Tim Cole Act for a

claimant’s failure to take a mandatory step in the application proce ss is that he has not invoked the Comptroller’s duty to take responsive action and, in the case of a failure to f ile an application to c ure under subsection (d), he

m ay n o t avail himself of subsection (e) ’s avenue for substantive revie w of the Comptroller’s redeter mination of elig ibilit y

—a deter mination that the Comptroller has no duty to make absent an application to cur e. This case is rea dily distinguishabl e f r o m th o s e in s ta

nces when a statute’s context dictated that

we not construe the term “must” to cre ate a condition prec edent. See, e.g. , W ilkins , 47 S.W .3d at 492 (althoug h Texas Seed Arbitration Act made arbitra tion a conditi o n prec edent to filing suit, the context of the statute demonstrated that failure to file arbitra tion “within the time nece ssary to permit eff ective inspection of the plants u n d er field conditions” did not bar suit) (apply ing T E X . A G R I C . C O D E §§ 64.002, 64.006(a) ); City of DeSoto v. W

hite , 288 S.W .3d 389, 395–96 (Tex. 2009) (holding that police chief

’s suspension letter omitti ng statutorily r e q u ir e d in f o r ma ti o n a b o u t p r o c e s s f

or appea l of suspension did not deprive hear ing examiner of jurisdiction over suspended office r’s appea l and require reinstateme nt of office r); see also T E X . G O V ’ T C O D E § 3 1 1

. 0 1 6 (p ro viding exception to g ener al construction of term “must” when “the context in which t h e word or phrase appea rs

nece ssarily

require s a diffe rent c onstruction.”). This is not a statutory scheme that expressly provides an alterna tive penalty for failur e to fulfill its proce dural require ments, nor does the Act indicate an expectation that claimants who fail to fulfill the proce dural requir em en t s wi ll be permitted to proce ed to compensa tion any way . Cf. W ilkins , 47 S.W

. 3 d at 495–96 (obser ving that statutory provision for jury consideration of 2 5arbitra tor’s finding s reg arding delay in bring ing arbitra tion indicated that L eg islature did not intend

delay to bar suit). The statutory proce dures for compensa tion under the Tim Cole Act are not mere notice require ments—eac h step in the proce ss serve s as a foundation for the next step in the proce ss, and one party ’s fulfillment of a statutory duty at ea ch s tep of the proce ss g ives rise to either a complimentary

duty or a r ight unde r the statute. See T E X . C I V . P R A C . & R E M C O D E § 103.051; cf. W hite , 288 S.W .3d at 395–96 (addr essing failure to include statutorily -manda ted notice of limit ed rig h t of revie w from hear ing in otherwise timely and compliant suspension letter). The eff ect of enfor cing the Act’ s mandatory proce dures a s written does not de prive non-compliant claimants of rig hts they had at common law or that exis t outsi d e o f t h e Act; rather, the only eff ect of failing to fulfill the Act’s statutory prer equisites is that the claimant may not rec eive the b en ef its otherwise available under the Act. Cf. W ilkins , 47 S.W .3d at 492–96 (dec lining to construe failure to comply with promptness require ment to bar suit on common law cause of action). And beca use the rig ht to compensa tion Blair se eks is cre ated by the Act and did not exis t at common law, the Ope n Courts provision of the Texas Constitution is not implicate d. See T E X . C O N S T . art. I , § 13; see also Sax v. Votteler , 648 S.W .2d 661, 665–66 (Tex. 1983) (holding that “the r ight to bring a well-established

common law cause of action cannot be eff ectively abrog ated by the leg islature absent a showing that the leg islative basis for the statute outweig hs the denial of the constitutionally -g uara nteed r ight of redr ess”)

. 4. Appli cation Bla ir failed to c omply with the proce dural conditions pr ece dent nece ssary to a uthorize this Court to g rant him the relief he seeks in this action for mandamus. After the Comptroller denied his 2 6first applica tion, he filed a “Motion for Reconsider ation of Denial” within ten day s, and then filed

another “M o t ion to Reconsider ” twenty -three day s later. We need not, and I would not, hold that the Act require d Bla ir to title his tenth-day filing an “Applica tion to Cure” rathe r than a “Motion for Reconsider ation of Denial,” but future claimants should follow that prac tice to avoid confusion. I n

an y ev en t , t h e Act did not permit Bla ir to file the subsequent “Motion to Reconsider ,” and the Comptroller should not have considere d it. Nor s h ould the Comptroller have invited, acc epted, considere d, or ruled on Bla ir’s sub s equent “Supplemental Motion to Cure,” as the Act does not authorize any action following t he denial of an a pplication to cure other than a petition for writ of mandamus. Once Bla ir’s deadline to file an ap p l i ca t i o n to cure passed, his ability to submit information to the Comptroller cea sed, and his only rema ining avenue was to seek mandamus relief

as the Act allows. I nstead, he continued to submit additional documents to the Comptroller, and then relied on the information in those documents to support his first mandamus petition. Bla ir failed to comply with the Act’s proce dural require ments in his first ap p l ication for compensa tion, and we denied his first petition for manda mus. Then, co n t en d i n g that he was entitled to file a second application for the same relief (a contention I discuss further below), Bla i r submitt ed a succe ssive application and, upon the Comptroller’s deni a l, im

me d ia tely soug ht mandamus relief without first filing an application to cure , as the statute say s he “must” do. Sinc e t h i s i s t h e denial for which he now seeks mandamus, his failure to submit an application to cure following the Comptroller’s denial of his second application is, by itself, a re ason we must deny his petition.

2 7J ustice Hec ht disag ree s that the Act require d Bla ir to file an application to cure befor e

seeking mandamus relief a second time; the statute does not require an application to cure , acc ording to J ustice Hec ht, when the application for compensa tion is denied on a “leg al basis.” But the statute makes no such distinction betwee n g rounds for denial. I t states only that “[i] f the comptroller denies the claim, the comptroller must state the rea son for the denial,” and within thirty day s afte r the denial i s rec eived, “the claimant must submit an application to cure any problem identified.” T E X . C I V . P R A C . & R E M C O D E § 103.051(d). More importantly , the statute specific ally permits mandamus only “[i] f the comptroller denies a claim after the claimant submits an application under Subsection ( d) ”—i.e., an application t o cu re . Id. § 103.051(e)

. These proce dural “musts” cre ate “conditions prec edent,” see T E X . G O V ’ T C O D E § 311.016(3), a nd we ( and B lair) a

re bound by

them. There is nothing unreasona ble or even undesirable about g ivi n g the claimant and the Comptroller

a second chanc e to achie ve the rig ht result—within the statutorily provided timeframe —even when the Comptro ller denies the claim for leg al rea sons rathe r than a defe ct in the paper work. Other statutes c o n

ta in s im il a r ti me - s e n s it ive but mandatory second chanc es. The Administrative Procedur e Act (APA), for example, require s a motion for rehe aring as a pre re q u i s i t e to appea l from most

con t es t ed ca ses. See T E X . G O V ’ T C O D E § 2001.145(a) (“A timely motion for rehe aring is a prer equisite to an appea l in a contested case except

. . . .”). L ike an application to cure under the Tim Cole Act, a motion for r ehea ring under the APA must be filed with a certain number of day s after the ag ency ’s decision, and like the Comptroller’s re- deter mination of elig ibilit y under the Tim Cole Act, the ag ency has a cer

tain number of day s to act on the motion. See id. § 2001.146(a) , (c) (twenty day s to file motion for rehe aring , forty -five da y s to act on the motion). While I ag ree with J ustice 2 8Hec ht that an application to cure is not th e s am e as a “motion for rec onsideration,” and likewise

neither of these is the s ame as a “m o t ion for rehea ring ,” all of t hese filings have the s ame ge nera l purpose—a

n opportunity to corr ect a potentially err oneous decision— an d n one of them are inhere ntly limit ed to the correc tion of onl y one s p ec i fi c k i n d of error. See Tex. W ater Comm’n v. Dellana , 849 S.W

. 2 d 8 08, 810 (Tex. 1993) (obser ving that motion for rehe aring under APA prede cessor statute is desig ned to “allow the ag ency opportunity to corr ect the err or or to prepa re to defe nd it”) (quoting Suburban Util. Corp. v. Pub. Util. Comm’n , 652 S.W .2d 358, 365 (Tex. 1983)). B. Successive Applications Bla ir’s petition and the Comptroller’s response also ra i s e the question of when, if ever , a claimant may

file succ essive applica tions or succe ssive mandamus petitions after the Comptroller has denied an ear lier application and we have denied an ear lier petition for mandamus relief

. I would hold that, althoug h res judicata does not bar succe ssive applications and petitions, the Act does not permit them, at lea st in the absence of mater ially chang ed cir cumstance s. 1. Res Judicata The Comptroller contends that res judic at a b ars Bla ir’s second application beca use the Comptroller’s deter

mination of Blai r’ s first application is a final ag ency decision. Bla ir responds that the “fina l ag ency decision rule” applies only when an ag ency is acting in a j udicial capa city following a contested testimonial hear ing, and it does not apply when, as here , the comptroller’ s duty is “pure ly minist eria l.” Bla ir also contends that this Court’s denial of his first petition for writ of mandamus wa s not a dec ision on the merits and thus has no res judica ta ef fec t.

2 9I ag re e t hat neither the Comptroller’s prior deter mination of elig ibilit y nor this Court’s previous denial of mandamus relief bars Bla ir ’s s econd application under the principles of res judicata. The proce ss for obtaining compensa tion under the Tim Cole Act is unique to that Act. I t is administered by the C o m ptroller and does not lead to a “conte sted case ” proce eding under the APA. Cf. T E X . G O V ’ T C O D E § 2001.003(1) (def ining a “conte sted case ” as “a proce eding , including a ratemaking or l icensing proce eding , in which t h e leg al rights, duties, or privil eg es of a party are to be deter

mined by a state ag ency after an opportunity for adjudicative hearing ”) ( e mpha sis added)

. The Comptroller’s deter

mination of elig ibilit y is minist eria l and must be based solely on the verifie d documents filed with the app l i ca t i o n ; i t is not the result of an adjura tory proce ss in which the Comptroller acts in a judicial or quasi -j u dicial capa city

. See T E X . C I V . P R A C . & R E M C O D E § 103.051. Thus, the C omptroller’s d etermination of eligibility , even when final, does not have res judicata eff

ect. Cf. Igal v. Bri

g h t s t a r In f o . Tech. Grp., Inc. , 250 S.W .3d 78, 87 (Tex. 2008) (re s judicata g en era lly applies to TWC final order s beca use TWC acts in judicial capa city in deciding wag e claims and parties had “an adequate opportunity to litigate their claims throug h an adver sarial proce ss in which TWC finally decide d disputed issues of fac t”); Coal. of Citi es for Affordable Util. Rates v. Pub. Util. Comm’n of Tex. , 798 S.W .2d 560, 561 (Tex. 1990) (PUC hear ing and final order

on rate increas e prec luded re- litigation of same issue in subsequent PUC proce eding ); see also United States v. Utah Constr. & Min. Co. , 384 U.S. 394, 422 (1966) (administrative proce eding can have prec lusive eff

ect when the administrative ag ency “is acting in a judicial capa city and resolves disputed issues of fac t proper l y b ef o re i t which the parties have had an adequate opportunity to litigate” ). 3 0Nor does this Court’s denial of Bla ir’s previous petition for writ o f m an d am u s have res

judicata eff

ect. The doctrine of res judicata is implicated only by “a prior final deter mination on the merits.” Travelers Ins. Co. v. Joachim , 315 S.W .3d 8 6 0 , 8 6 2 (T ex. 2010) (listing elements of res judicata)

. Our denial of Bla ir’s first petition f or writ of mandamus was not a deter mination on the merits. See In re AIU

Ins. Co. , 148 S.W .3d 109, 119 (Tex. 2004) (“[T]his C ourt’s fa ilure to g rant a petiti on for writ of m andamus is not an adjudication of, n o r ev en a comment on, the m erits of a

case in any

respe ct, including whether mandamus re lief wa s available .”). 2. Statutory Language Although res judicata does not bar Bla ir’s subsequent application for compensa tion, we must still deter mine whether the Act itself permits succe ssive applications. Bla ir contends that the Act place s no limi t on the number of applications he ma

y file see king the same c ompensation, as long as he files t hem wit hin the s tatute’s three-y ear limit ation period. The Com ptroller arg ues t h at the Act prohibits succe ssive applications, at least in the absenc e of an in t er v ening materia l chang e in circ umstances, beca

use holding otherwise “could lead to the futile filing of seriatim applications of the same den i ed claim despite no chang ed circ umstances during the Act’s three -y ear limit ations period , forc ing the Comptroller to re- deny the same claim over and over ag ain.” See Y oung Trucking, Inc. v. R.R. Comm’n , 781 S.W .2d 719, 721 (Tex. A pp.—Austin 1989, no writ) (holding that, once an order become s administratively final, an ag ency does not have in h erent authority to reope n the proceeding

and ca n rec onsider its order

only if provided f

or by statute or on a showing of cha ng ed cir cumstance s). J ustice He cht ag ree s with Blair; I ag ree with the Comptroller. The Act sets forth a series of specific proce dural require ments that, toge ther, provide a s im p le 3 1and eff

icient proce ss for those who wer e wrong fully imprisoned to obtain the compensa tion to which they are entitled. But the proce ss includes require ments, and these require ments are m an d at o ry . J ustice Hec ht’s construction of the Act as permitting multipl e applications by the same claimant based on the same wrong ful imprisonment rende rs these mandatory require ments meaning less. For example, a claimant who failed to file an application to cure within ten day s (now thirty day s) of the Comptroller’s initial denial could neg ate the statutory deadline by simply starting the proce ss over. This C o u rt rec ently prohibited this kind of circ umvention of proce dural deadlines in an analog ous circ umstance. See City of Houston v. Estate of Jones , 388 S.W .3d 663 (Tex. 2012). I n City of Houston , we held that a court of appea ls may not hear an interlocutory appea l from the denial of a g overnme ntal unit’s plea to the jurisdiction if the plea mere ly re- urg es the same g rounds arg ued in a prior plea to the jurisdiction. Id. at 666– 6 7 (c o n s t ru i ng T E X . C I V . P R A C . & R E M . C O D E § 51.01 4 (a )( 8 ))

. We noted that “[p] ermitting appea ls under circ umstances such as these would eff ectively eliminate the require ment that appea ls from interl o cu t o ry order s must be filed within twenty day s afte r the challeng ed order is signe d” beca use the g overnme ntal unit could just re- file the plea to the jurisdiction afte r twenty day s had expired. See id. We conclude d that beca use the city ’s second plea to the jurisdiction “did not asser t a new g round, [i t] was substantively a motion to

rec onsider,” f

or which the statute did not authorize interlocutory appea l. Id. Her e too, permitting Blair to file a second a pplication or pursue mandamus re lief from the Comptroller’s denial of his second application for the same compensa tion, at least absent a materia l chang e in circ umstances, “ef fec tively eliminates” the Act’s proce dural deadlines. See id. As in City of Houston , Bla ir’s second application for the same compensa tion was just another untimely reque st 3 2for rec onsi d er ation of his orig inal application. See id. J ustice Hec ht notes that the Act does not

express l y p rohibit Bla ir from filing duplicative applications. But the Act’s detailed proce dural provisions nece ssarily prohibi t conduct that conflicts with its mandates or rende rs them entirely ineffe ctive, lik e a ll o w in g r e d u n d a n t r e - f iling of applications rende rs the statutes proce dural deadlines meaning less. The conduct at issue here —seeking compensa tion under the Act—is not something Bla ir has

a rig ht to do independe nt of the Act. Unlike statutes that place limit s on exis ting rig hts, there is no

rea son for a statute that cre ates a rig ht under limit ed circ umstances—e .g ., the rig ht to compensa tion if the Act’s proce dures are satisfied—to identify all other circ umstances in which the rig ht does not exis t. The Comptroller has no power to g rant compensa tion to claimants like Bla ir except that power g rante d by the Act. Cf. Tex. Natural Res. Conservation Comm’n v. Lakeshore Util. Co. , 164 S.W .3d 368, 377 (Tex. 2005) (obser ving “we ll-established princi p le” that administrative ag encie s “may exercise only those power s that the L eg islature confe rs upon [t hem] in clea r and express lang uag e, and canno t er ec t and exercise what rea lly amounts to new or additional power for the purpose of administrative expediency .”); see also TGS-NOPEC Ge ophysical , 340 S.W .3d at 438 (identify ing the Comptroller as an a dminist rative a g ency ). For all of these rea sons, I would hold that the Act does not permit multipl e applications and petitions by

the same c laimant based on the same c laim under the sa me fa cts. 3. Mate rial Change in Circum stances Bla ir next arg ues that succe ssive applications should at least be permitted if t h er e wa s a materia l chang e in circ umstances afte r the denial of a prior application, which he contends is the case 3 3here

. The Comptroller disag ree s that there has been a materia l chang e in circ umstances. I ag ree with

the Comptroller, and there fore I need not decide whether a materia l chang e in circ umstances could

ever justify a succ essive applica tion. Attempting to show a materia l chang e of circ umstances, Bla ir first arg ues that our decision in In re Smith cre ated a chang e in law that justifies his new application. Specifica lly , Bla ir notes that

our holding in In re Smith was contra ry to the Comptroller’s conclusion, in response to Bla ir’s first application, that Bla ir could not b e el i gi b l e fo r the period from 1993–2002, when he was serving

concur rent sentenc es for the 1988 convictions. But the Comptroller did not ultimately deny Bla ir’s application on that gro u nd. Although she relied on that g round i n her first deter mination, she di d not do so in her second or her third. Thus, our decision in In re Smit h wa s n o t materia l to the Comptroller’s denial of Bla ir’s first application for compensa tion, and could not constitute a chang e in the law to justify

a succ essive applica

tion. Next, Bla ir contends that the L eg islature’s 2009 amendments to t h e Act also constitute a chang e in the law that justifies his second application. Among other things, the 2009 amendments incre ased the lump-sum compensa tion available to claimants u nder the Act and added a new provision for annuity pay

ments. See Acts of May 11, 2009, 81st L eg ., R.S., ch. 180, § 2, 2009 T E X . G E N . L A W S 523, 526. The L eg islature expressly provided that the incre ased lump-sum pay ment “applies only to an application for compensa tion

. . . filed on or afte r the eff ective date of this Act,” id. § 14(a) , but the annuity pay ments wer e available to “a person who rec eived compensa tion under [t he Act] befor e September 1, 2009

. . . based on a prese nt value sum equal to the amount the person would rec eive

. . . if the person wer e to rec eive compensa tion

. . . on September 1, 2009,” id. § 14(b). 3 4Bla ir arg ues that these amendments demonstrate the L eg islature’s intent to allow succe ssive

applications. I disag ree . To the contra ry , the 2009 amendments demonstrate that the L egi s lature knows how to allow a rede termination of a previously decide d claim fo r compensation when it chooses to do so. Had the L eg islature intended to authorize succe ssive appli cations by claimants who previously rec eived compensa tion, rathe r than only all owing an adjustment to the annuity p ayment rig hts of claimants previously deter mined to be elig ible, it could have, and wou l d h av e, done so. Be cause it did not, I woul d h o l d t h at the 2009 amendments do not constitute a materia l chang e in circ umstances that would pe rmit Blair to file a second a pplication. VI. Conclusion I ag ree with Bla ir that the Tim Cole Act does not provide for “ter mination” of his rig ht to compensa tion based on felony convictions that occur red b e f o r e h e b e c a

me e li g ib le for compensa tion,

an d t h e fac t that he rema ins in prison for those conviction does not prec lude him from elig ibil i t y under the plain lang uag e of the Act. But I ag ree with the Comptroller that the Act does not pe rmit Bla ir to esche w the Act’s proce dural require ments or file a succe ssive application seeking the same compensa tion, at least in the absenc e of a ny materia l chang e in circ umstances. Bla ir invites the Court to ignor e the Act’s proce dural require ments, as a matter of policy and “in the interest o f justice,” so that he can rec eive the compensa tion to which he contends he is otherwise entitled. But the L eg islature has imposed those proce dural require ments, and “policy arg uments cannot preva il over the words of the statute,” In re Allen , 3 66 S.W .3d at 708 (citing McI ntyre v . Ramirez , 109 S.W .3d 741, 748 (Tex. 2003)).

3 5[T] he question befor e us is not one of policy b u t o f s tatutory construction, and our

duty is to g ive eff

ect to the L eg islature’s intent. Whil e the limit ations in Chapter 103 may sometimes be harsh, the common-law rule was harshe r still , entitling claimants to nothing from a state that wrong fully imprisoned them. As Chapter 103 is intended to ameliorate that rule, it is the L eg islature’s pr erog ative to set its boundaries. Oakley , 227 S.W .3d at 62. I n the Tim Cole Act, the L eg islature has set forth a simple and eff icient, but m an d at o ry , proce ss for those who wer e wrong fully imprisoned to obtain compensa tion. T h e Ac t re quires claimants to follow the steps in this proce ss by specific deadlines, and imposes a minist eria l duty on the Comptroller to deter

mine the claimant’s eli gi b i l i t y i f, but only if, the claimant meets those require ments. Be cause Bla ir failed to comply with those require ments, he is not elig ible to rec eive compensa tion. The Act did not permit Bla ir to file a second application and, even if it did, he failed to file an applicati o n to cure within ten day s of the Comptroller’s denial of that application—a prer equisite to mandamus revie w. I there fore concur in the Court’s decision to deny Bla ir’s petition for wr it of mandamus.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J eff rey S. Boy d J ustice OP INION DELIVERED: Aug ust 23, 2013

3 6