United States Court of Appeals

for the Fifth Circuit

No. 22-10303

Shellany Ray, 

Plaintiff—Appellant,

versus

Recovery Healthcare Corporation; Alcohol 

Monitoring Systems, Incorporated; Glenn Tubb; The 

Riverside Company, 

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:19-CV-3055

Before Stewart, Willett, and Oldham, Circuit Judges.

Per Curiam:*

Shellany Ray claims her ankle monitor malfunctioned and caused a 

court in Dallas County to erroneously revoke her community supervision. 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 15, 2022

Lyle W. Cayce

Clerk

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She sued various entities for the alleged malfunction. The district court held 

her claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). We affirm.

I.

A.

On January 3, 2017, Shellany Ray pleaded guilty in Dallas County to 

her third DWI offense and was sentenced to ten years’ imprisonment. The 

convicting court suspended her sentence, however, and instead placed her 

on community supervision (probation) for seven years.1 As a condition of her 

community supervision, Ray is required to abstain from consuming alcohol.

To monitor her alcohol consumption, Ray must wear an ankle monitor

called a “SCRAM” device. The SCRAM device was manufactured by 

defendant–appellee Alcohol Monitoring Systems, Incorporated (AMS).

The County contracts with defendant–appellee Recovery Healthcare 

Corporation (Recovery) to provide the SCRAM devices and to monitor 

probationers convicted of alcohol offenses. The device works by measuring 

the amount of alcohol that evaporates through the wearer’s skin every 30 

minutes. An algorithm then uses that data to approximate the wearer’s blood 

alcohol content.

On Christmas Day in 2017, Ray’s monitor detected a large amount of 

alcohol. Soon after, AMS and Recovery alerted Dallas County probation 

officials that Ray had consumed alcohol in violation of her terms of 

1 In Texas, probation is referred to as “community supervision.” Tex. Code 

Crim. Proc. art. 42A.001(1) (“‘Community supervision’ means the placement of a 

defendant by a court under a continuum of programs and sanctions, with conditions 

imposed by the court for a specified period during which: (A) criminal proceedings are 

deferred without an adjudication of guilt; or (B) a sentence of imprisonment or 

confinement, imprisonment and fine, or confinement and fine, is probated and the 

imposition of sentence is suspended in whole or in part.”).

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community supervision. The state court issued a warrant for Ray’s arrest.

And Dallas County prosecutors filed a motion to revoke Ray’s probation.

At the hearing on the prosecution’s revocation motion, Ray said she 

didn’t consume alcohol on December 25. She explained that her husband had 

sprayed Static Guard on their bed that day, which she argued must have been 

the source of the spike in alcohol vapors. But AMS and Recovery insisted 

that the only possible explanation for the SCRAM reading was that plaintiff 

had consumed a “large quantity” of alcohol. At the end of the hearing, the 

court modified Ray’s conditions of community supervision, ordering Ray to 

“attend a 12-step recovery program every day for 90 days and provide proof 

of attendance to her probation officer.”

Ray then hired a forensic criminalist named Jan Semenoff to evaluate 

the Christmas Day SCRAM data. Semenoff’s report concluded that the 

SCRAM readings were far more consistent with alcohol evaporation outside 

the body (such as from Static Guard on bed sheets) than with alcohol 

metabolization inside the body (such as from alcohol consumption). Ray 

alleges that “after Ms. Semenoff’s report was provided to prosecutors, they 

abandoned their efforts to revoke the Plaintiff’s probation.”

B.

Ray filed suit in the Northern District of Texas, alleging a bevy of state 

and federal claims—including under 42 U.S.C. § 1983 for violations of her 

First, Fourth, Fifth, and Fourteenth Amendment rights; under 18 U.S.C. 

§ 1964 for racketeering; and under Texas state law for violations of the Texas 

Deceptive Trade Practices Act as well as for negligence, gross negligence, 

strict liability, fraud, and intentional infliction of emotional distress. The crux 

of her claims was that the SCRAM device incorrectly reported that Ray 

consumed alcohol on Christmas Day. Ray contended that, absent the 

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defendants’ misconduct, the district court would not have modified her 

community supervision.

The district court held that Ray’s claims were barred by Heck v. 

Humphrey. Ray timely appealed. We have jurisdiction under 28 U.S.C. 

§ 1291. Our review is de novo. Ferrer & Poirot, GP v. Cincinnati Ins. Co., 36 

F.4th 656, 658 (5th Cir. 2022) (per curiam).

II.

“To survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to ‘state a claim to relief that is plausible on 

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 570 (2007)). A complaint fails to state a claim 

where it demands relief barred by Heck v. Humphrey. E.g., Crittindon v. 

LeBlanc, 37 F.4th 177, 190 (5th Cir. 2022). In Heck, the Supreme Court held 

that courts cannot entertain civil suits if “a judgment in favor of the plaintiff 

would necessarily imply the invalidity of his conviction or sentence.” 512 

U.S. at 487.2 That is because “civil tort actions are not appropriate vehicles 

for challenging the validity of outstanding criminal judgments.” Colvin v. 

LeBlanc, 2 F.4th 494, 498 (5th Cir. 2021) (quoting Heck, 512 U.S. at 486). If 

a judgment for plaintiff would imply that his conviction or sentence was 

invalid, the court must dismiss the claim “unless the plaintiff can 

demonstrate that the conviction or sentence has already been invalidated.” 

Id. This is sometimes called the “favorable termination” exception. Ballard 

v. Burton, 444 F.3d 391, 396 (5th Cir. 2006). Plaintiffs can demonstrate 

2 Ray never disputes that a favorable judgment on any of her claims would imply 

the invalidity of the January 24 modification order requiring her to attend the 12-step 

recovery program. Likewise, everyone assumes the Heck analysis applies to all Ray’s 

claims—state and federal—with equal force, so we assume that to be the case without 

deciding it to be so.

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favorable termination by, inter alia, “prov[ing] that the conviction or 

sentence has been reversed on direct appeal, expunged by executive order, 

declared invalid by a state tribunal authorized to make such determination, 

or called into question by a federal court’s issuance of a writ of habeas 

corpus.” Heck, 512 U.S. at 486–87.

Ray asserts that Heck does not apply because the state court’s 

modification order was not a “conviction or sentence” for Heck purposes. 

And even if it were, Ray contends the probation revocation proceeding 

terminated in her favor when the prosecutors withdrew their motion to 

revoke Ray’s probation. We address and reject each contention in turn. 

A.

Although we have yet to articulate a definitive test for when a judicial 

action constitutes a “conviction or sentence” under Heck, we have created 

some guidelines. In DeLeon v. City of Corpus Christi, for example, we held that

“a deferred adjudication in Texas is a ‘sentence or conviction’ for the 

purposes of Heck.” 488 F.3d 649, 652 (5th Cir. 2007). In Jackson v. Vannoy, 

we held that Heck barred claims that would imply the invalidity of a successful 

parole revocation proceeding. 49 F.3d 175, 177 (5th Cir. 1995) (per curiam).

And in Morris v. Mekdessie, we applied Heck to bar claims that would 

invalidate the defendant’s participation in a pretrial diversion program. 768 

F. App’x 299, 300–01 (5th Cir. 2019). The results in DeLeon, Jackson, and 

Morris were all required by Heck’s protection of the “finality and 

consistency” of criminal judgments from undue “collateral attack.” Heck, 

512 U.S. at 484–85.

DeLeon is particularly instructive. Although a deferred adjudication 

order is not considered a “conviction or sentence” under state law, we 

nevertheless decided that Heck barred DeLeon’s civil claims. See DeLeon, 

488 F.3d at 656 (“[A]lthough the Texas courts have in all circumstances held 

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that these orders are not convictions, . . . [w]e conclude that a deferred 

adjudication order is a conviction for the purposes of Heck.”). We did so to 

vindicate the concerns that animated Heck—namely, that “civil tort actions 

are not appropriate vehicles for challenging the validity of outstanding 

criminal judgments.” Heck, 512 U.S. at 486. We found compelling the fact 

that the deferred adjudication order bore important similarities to sentences

and convictions. Namely, the deferred adjudication order was (1) a “final 

judicial act,” (2) preceded by a “judicial finding that the evidence 

substantiates the defendant’s guilt,” and (3) accompanied by probation 

conditions that resemble the consequences of a conviction or sentence.

DeLeon, 655–56. Allowing DeLeon to “attack” his deferred adjudication 

order via § 1983 would undermine Heck and its “concerns for finality and 

consistency.” Heck, 512 U.S. at 484–85. 

Everyone agrees that under Heck and DeLeon, Ray cannot bring civil

claims that would imply the invalidity of her 2017 DUI conviction or her

initial probation order. (That’s true even though a probation order is not a 

“sentence or conviction” under Texas law.) The parties part company, 

however, over whether the January 2018 modification order requiring Ray to 

attend a 12-step recovery program for 90 days is a “sentence or conviction” 

under Heck. 

We agree with the district court that the modification order bears the 

same three similarities that DeLeon articulated and thus should be considered 

a “sentence or conviction” for Heck purposes. First, the order is “final” in 

the sense that it was “wholly within the state court’s discretionary power, 

could not be appealed, and otherwise effectively left Ray with no other option 

than to comply.”3 Second, probation revocation hearings carry relevant

3 We reject Ray’s attempt to liken her probation revocation hearing to a 

preliminary, non-final probable cause hearing. Nothing in the modification order remotely 

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indicia of criminal proceedings: “the State is represented by a prosecutor,”

“the defendant does have a right to counsel,” “the hearing is before the 

judge,” “formal rules of evidence do apply,” and the judge makes an 

ultimate finding whether the probationer violated her terms of probation. Ex 

parte Doan, 369 S.W.3d 205, 210 (Tex. Crim. App. 2012); Tex. Code 

Crim. Proc. art. 42A.752(a). Finally, the modification order added

“conditions”—namely, the 12-step program—that are akin to a sentence. 

Tex. Code Crim. Proc. art. 42A.752(a).

We also agree with the defendants that treating the initial probation 

determination—which DeLeon held is a “conviction or sentence” under 

Heck—differently than modifications to that determination would create an 

artificial distinction in Heck’s otherwise cohesive framework. This argument

tracks Texas law, which considers revocation proceedings and modification 

orders as extensions of the original probation order. Indeed, “any 

punishment [a probationer] would receive as a result of the revocation 

hearing relates back to the original offense for which [the probationer] was 

placed on community supervision.” State v. Waters, 560 S.W.3d 651, 659 

(Tex. Crim. App. 2018).

We hold that the state court’s modification order was a “conviction 

or sentence” for purposes of Heck, and hence that case bars Ray’s claims.

suggests that the hearing was an interim probable cause determination or that the 

imposition of the 12-step program was a condition of release akin to bail. Regardless of 

Ray’s speculation on the motivation or understanding of the state prosecutors, the state 

court itself viewed the 12-step program and the accompanying order as a “modification” 

to Ray’s original terms of probation. Indeed, the modification order was titled “Order 

Modifying the Conditions of Community Supervision,” and the state court declared that 

“the Conditions of Community Supervision in the above numbered Cause(s) are hereby 

modified by the Court.” The court even labeled the modification condition—requiring Ray 

to attend the 12-step program—as condition “bb,” right where the list of conditions of 

community supervision left off in the January 3, 2017 “Judgment of Conviction.”

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B.

Ray also argues that even if the modification order is a “conviction or 

sentence” under Heck, she nevertheless satisfies the favorable termination 

exception. Ray cites Thompson v. Clark for the proposition that “[t]o 

demonstrate a favorable termination of a criminal prosecution for purposes 

of . . . Fourth Amendment claim[s] under § 1983 for malicious prosecution, 

a plaintiff need only show that his prosecution ended without a conviction.” 

142 S. Ct. 1332, 1335 (2022). And Ray argues that the prosecutors’

withdrawal of their revocation motion is enough to demonstrate “favorable 

termination” under Thompson.

That is incorrect. Even if Thompson’s holding extended beyond the 

Fourth Amendment malicious prosecution context and applied to all of Ray’s

civil claims, Ray’s situation is nothing like what happened in Thompson. 

There, Thompson was arrested and charged, but those “charges were 

dismissed before trial,” so Thompson’s “prosecution ended without a 

conviction.” Thompson, 142 S. Ct. at 1335. Here, however, the prosecution’s 

revocation motion did result in a hearing (akin to the “trial” in Thompson) 

where the judge evaluated the allegedly flawed SCRAM report and issued a 

modification order, which we’ve already established is a “conviction or 

sentence” for purposes of Heck. The prosecutors’ withdrawal of their motion 

after Ray had already completed all 90 days of the 12-step program did 

nothing to alter or impact the court’s decision.

Finally, Ray makes no showing or argument that her “conviction or 

sentence” has otherwise been “reversed on direct appeal, expunged by 

executive order, declared invalid by a state tribunal authorized to make such 

determination, or called into question by a federal court’s issuance of a writ 

of habeas corpus.” Heck, 512 U.S. at 486–87. Thus, she cannot satisfy the 

favorable termination exception as articulated by either Heck or Thompson.

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AFFIRMED.

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