No. 10-0048

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					                                No. 10-0048
                                         IN THE

                                SUPREME COURT

n                         IN RE BILLY JAMES SMITH,

                               Original Proceeding

                       MANDAMUS RECORD

          Relator, Billy James Smith, submits the following documents in support of

    the petition for writ of mandamus:

    1. Legislative Record of the Timothy Cole Act, Act of May 11,2009, 81 5t Leg. R.S.,
    ch. 180, § 1 (current version at Tex. Civ. Prac. & Rem. Code § 103.001 et seq.)

    2. Code Construction Act, Texas Government Code § 311.034

    3. Code Construction Act, Texas Government Code § 312.005

    4. Code Construction Act, Texas Government Code § 311.023


      THE STATE OF TEXAS                     §

      COUNTY OF ECTOR                        §

n            COMES NOW, the undersigned, Kristopher Moore, being sworn under oath states
      that the following statements are true and correct:

i,-           "I am over the age of21 years old and am fully competent to give this Affidavit. The
      facts in this affidavit are within my personal knowledge and are true and correct.

lJ          "I am the attorney for the Relator. All the docUments included with Relator's Reply to
      Respondent's Response are true copies.

n            "Further affiant sayeth not."

o           SWORN TO AND SUBSCRIBED before me on the .ltJ
                                                                     -&                .'
                                                                          day of March, 2010.


       THE STATE OF TEXAS                               )(
i]                                                             KNOW ALL MEN BY THESE PRESENTS
       COUNTY OF TRAVIS                                 )(
l ..



o                                                            'lS
                                                                                2010. ,

                                 iJ -2- 'l~ !'3

                                  JACKIE K WATSON

o      LS
                                MY COMMISSION EXPIRES
                                     ~un' 22, 2013


                                                                                                          .I~.~   -   001
       FRED L. LEACH, JD, c.P.C.U.                               TELEPHONE: 512-440-0761
       ANDREA WHITE. B.S .. Mediator                                    FAX: 512-440-7311
       2018 Lear Lane                                           Fred .Laoch@al!
       Austin, Texas 78745                                              wvV\"!.aI!

       March 24, 2010

       Re:      House Bill 1736, Acts 2009, 81,1 Legislature, Regular Session.

       Dear Ms. Ortiz;

       The legislative intent/history of House Bill 1736 (HB 1736) included a review
       of the bill as filed, any proposed amendments, the engrossed and
       enrolled versions, audio recordings of the respective House and Senate
       committee hearings and the respective House and Senate sessions during
       the second and third readings of the bill, the House and Senate Journals.

       The following are excerpted transcripts of the debate in the House
       Committee and Session:

       House Bill 1736
       Acts 2009, 81,1 Legislature, Regular Session
       House Committee on Criminal Jurisprudence
       Public Hearing and Testirnony
       April 1, 2009
       1:07:01 - 2:38:01

       Chair:       If you wouldn't mind, assuming the Chair and laying out, uh,
       HB, uh, uh, 3584 and HB 1736, uh, both relating to the compensation of
       persons who have been wrongfully irnprisoned and recognize, uh, the
       lead, uh, author, uh, uh, Mr. Anchia. Mr. Nichols.

       Chair:     Thank you, Chair. The Chair at this time, um, are we going to
       do these separately or both together?

       Anchia:     I would suggest that that, essentially, fairly sirnilar rnaterial and
       I would suggest that you lay them out at the sarne time and let the
       witnesses come forward.
']     Chair:     The Chair lays out both HB 1736 and HB 3584, recognizes
       Representative Anchia.

         Anchia:     Did you, uh, Mr., uh, before we start.
         Chair:      1736.

i]       Anchia:      1736, right?

[]       Chair:      Yes sir. I said 1736.

         Anchia:        Uh, thank you Mr. Chairman, members of the committee, not
'~~J     when we do work here in the House of Representatives that we think is
         important. um, we spend a lot of time on and then you come into things
         like this, and there is no doubt in anybody's mind how important this work
]        is. Um, I am here to layout HB 1736 which, uh, uh, once the committee
         substitute, uh, is adopted, will be known as the Tim Cole Act.
]        Hodge:       Mr. Chairman?

]        Chair:       Representative Hodge.

         Hodge:        Thank you. At this time, I would like to layout Committee
[J       Substitute 1736 and what this committee substitute will do; it will name this
         bill for a young man who was convicted on September 17th , 1986. Given
         25 years to serve in prison, died on December 2nd , 1999 for heart
[J       complications caused by an asthmatic condition. This substitute that I lay
         out before you on 1736, is the Time Cole Act which happens, Mr.
         Chairman, my committee substitute is laid out.
         .Chair:      Any objections from the members?
']       Hodge:       I'm sorry? Tim Cole.

-1       ?:           TIm Cole?

         Hodge:       That's right.
         Chair:       Any objections from the members? Take your seat.

     I   Anchia:     Thank you, Chairman Gallegos, uh, for your leadership on this
         issue. Um, Joe Kennedy used to tell his son, Jack, that things just don't
         happen. People make them happen. So, I want to thank you for helping
  1      make this happen. Allow us the opportunity to lay this out. Uh,
         Representative Hodge, thank you for laying out the committee substitute.
          Hodge:      Thank you for allowing me.

(]                                                                                       ,,-~   OO~,
']     Anchia:          You bet. You bet. This is, uh, important work and work that
       you have done for decades now. I admire your leadership on this. The
       Tim Cole Act will increase compensation for wrongly convicted citizens of
]      Texas. Uh, the increase and I'll give you the highlights of the bill will be
       essentially, in addition to the, to the $50,000.00 per year of incarceration,
       um, um, that will be increased from $50,000.00 to $80,000.00. There will
       also be an annuity that will be added and that will occur as a monthly
       payment for life based on a 5% annual retum from from from an amount
iJ     equal to the lump sum. In addition to that we will be including health
       insurance paid for under the state group benefits plan that will include
       mental health. And finally, and not least important is education. It will
:1     include tuition up to 120 hours at a career center or community college or
       state university. Um, the difference between this bill and what happens in
       other states, other states, um, have both judicial plus statutory schemes
]      and here in Texas, uh, upon the adoption of HB 36, there will be a balance
       of, for the exoneree.lf the exoneree takes the statutory plan it will forgo

:J     the judicial plan. That's important to, uh, not only the exoneree in that
       they are able to, uh, get their statutory, uh, funds and health benefits and
       education benefits immediately, it's also important for cities so that they
[J     don't have that contingent liability out there. In the substitute we we we
       do a couple of important things, uh, related specifically to the situation of
       Tim Cole. You know, as you know, Tim Cole's family wanted to exonerate
]      him after he died and they were told that state law would not allow that
       without a special court order. Well, the substitute clarifies that a family
        member would be able to petition for exoneration of a person who is
'-     innocent. And keep in mind; I've gotten a lot of questions about this. Are
       we dealing with people who, um, have had a conviction overtumed on a
]       technicality? Would they be eligible for a package? And the answer is
        no and flatly no. We are talking about men and women, specifically like
        the men who you see here today, who have been adjudicated as
]       innocent, affirmatively so, so that's that and after hearing the testimony,
        it's it's really important to to point out that there is really no way to make
        them whole. Separating families, losing spouses, not being able to see
']      children, being in a place where you can't acquire skills and engage in
        self improvement, you can actualize this citizen or human being come out
        in a world that is completely different, have years robbed, taken away off
]       your life; there is absolutely no way for us to adequately compensate the
        gentlemen that you heard from today but I submit to you under HB 1736,
,]      we can do better. We can do better than what we do now. And that's
        why I ask the members of this committee to favorably, um, um, um, be
        favorably disposed to HB 1736. Cause it's going to make a big difference
, -j
        in the lives of people whom the state owes quite a bit. So, Mr. Chairman
         and members of the committee, I will go ahead and reserve my right to

                                                                                     ,.I' "_- -   00 {
close but I think you are going to be hearing from some important
resource witnesses and witnesses in favor of this legislation. Thank you, Mr.
Chairman, Representative Hodge, for laying out the committee substitute
and your work members of the committee and I think it it it is prudent that
we also thank District Attorney Watkins because he has brought public
light and the Innocence Project for that rnatter in working with hirn they
have brought public light to this issue that has so sorely needed it for a
long tirne. Thank you.

Chair:     Thank you, Representative. First of all, members, any
questions? Any questions? Thank you Representative.

Anchia:     Thank you members of the committee.

Chair:     Okay. Witnesses. Chair calls Billy Smith and we're, um, we're
going on HB 1736, so all witnesses who are signed up on HB 1736, could
the Innocence Project of Texas. Sir, if you could state your name?

Smith:        Billy James Smith. Exoneree, Dallas, Texas 2006. Um, my
reason for, um, wanting to testify to you all today on this particular bill is
because I was 35 years old when I was arrested .and convicted. I was 64
years old when I was released. I was released without any training, any,
um, work history or virtually nothing to help me to go on into the future to
be comfortable, happy or to pursue happiness. So, I want to say that if I
had 10,000 words to say, if I had 10,000 forces to say, I couldn't thank God
enough for my freedom today. So my future is very important to me
because I can't start over. I'm at the point now that, you know, I'm going
down in years now, so it's not like I can come out a better work history,
that's something to have showed that I deserved to have this job
because I've been turned out over and over. And with the opportunity to
make things better for me and people like me and people that's
expecting something for someone, I just want things to be fair. We don't
need things to appear to be fair; we need things to be fair. We need
things to happen for us that will give us a chance cause I'm not the only
one. There are men here today that were in prison longer than I was, in
the same situation. I just learned how to text on my telephone not long
ago and I'm still having problems with that. I'm behind in a lot of things
and sometimes I can ask my 13 year old nephew to help me how to do
the work, some of the technologies that have been advanced since I was
locked away. I was put in prison. I was forgotten about. And when I
proved my innocence, I never once said I told you so. That I didn't do it.·
I'm not mad at nobody. I'm not angry at nobody. Because that would
 have destroyed me if I'd held onto my anger. What my problem is today
is this health care. I can't even provide myself, uh, I, I'm diabetic. I don't

                                                                                 • I,   -.   OOE
      take insulin but take the pill and it's for high blood pressure. That costs me
']    $273.00 every 30 days, I just don't have that. The state didn't give me
      anything to help me to purchase medication. I don't have any, if I get
      insurance today, I have to wait 6 months for the benefits to kick in
:l    because of pre-existing conditions. I can't even go get a pair of
      eyeglasses today, insurance because of this pre-existing condition. So I'm

~]    in a situation where I've had some happenings come into my life. I've
      met a woman who's willing to marry me and I can't afford it, I can't take
      care of her. She's not suppose to take care of me. I'm suppose to take
J     care of her unless I got that wrong. So I need some help. I need help
      medically. I need help to go onto my, into my future and I don't know
      how much I've got left. Alii know isthat I'm 67 years old and I'm broke
'}    and I need help. Now, I am asking y'all to help us to find some happiness
      and I'm not saying that this is the answer. I'm not saying that money isn't

'l    going to fix it and I know when you ask people about money it raises
      some eyebrows, you know, money is not the root of all evil, it's what you
      do with the money that makes money evil. But I'm saying that it's a way
[]    that you can use money that could benefit and I'm here for the benefit. I
      need to benefit, of health care. I need the benefit of being able to
      support myself. I was in prison nearly 20 years and never once was paid,
[J     not one penny, not one cent. And I had to survive off ofa gift from my
      sister of $15.00 a month. I didn't even get that when I got out. Parolees
       have more, uh, offered to them than any exoneree. We have nothing.
J      We have nothing, no one to tum to; we are just someone that's been let
      loose from, a stray cat or a stray dog. We just out there fending for
       ourselves and if I had taken on the attitude of anger and rage, I could
J      have got out and when nothing was there I could have went in the wrong
       direction but I chose to take my energies and do it the right way, go and
]      ask somebody. So I'm asking you today and I'm asking for some help.
       We need help. I need your help. I need the benefit. Thank you.

]     Chair:       Thank you, Mr. Smith. Members, are there any questions? No
      questions of Mr. Smith? Chair calls James Waller. Mr. Waller is with the
      Innocence Project. Sir, if you could state your name.
      Waller:       My name is James D. Waller out of Dallas, Texas. I was
      convicted on November 2nd, 1982 for aggravated sexual abuse with a 12
:1    year old boy. I walked to the grocery store one evening and I seen
      people watching me so I walked back to the house. When I came back
      a group of people came by to report me and a young kid partying
:,J   upstairs, he said, he's the one. So I went to jail and I went to trial in 19, uh,
      83. And I was sentenced to 30 years in prison. It took the jury 46 minutes
]     to convict me. I did 20 years, 11 months and 3 days in prison. I got out of
      prison on what they call discharge and I did 1/3rd of my sentence. I did 20

'J                                                                                        •. 11,- -
      years of good time and the other 10 and 'h years I did are slack time.
']    After I got out, I couldn't find no job ...

      (Mr. Waller continues his personal anecdotal testimony)
      Chair:       Thank you, Mr. Waller. Members, any questions? Any
:]    questions? Thank you, sir. Chair will now calls Ente' Cora gee? Did I say
      that right? Very good. Representing yourself as an individual. Sir, if you
      could state your name.
      Corage:       My name is Antoinette Corage and I got convicted in 1997,
      um, there was a case in 1994, uh, my girlfriend was raped and murdered
      and, uh, and I guess the police department couldn't find anybody else.
      They just pinned the case on me. With no evidence whatsoever and I got
      tried by a Judge. I didn't have any juries because I believe in, all that
      handled by my attomey and I told myself that there's nothing that the
      state could, you know, would have done to me because this thing is
      going to do right because I didn't do anything and I took 2 lie detector
      tests, I did everything appropriate that the, um, state wanted me to do
      and I went to prison. I served 7 years and I kept fighting, uh, DNA motions,
      when a DNA motion was passed put in April of 2001 after, uh, my Mom
      spent all the monies and stuff and borrowed everybody's money and just
      to hire an attomey and stuff and ...

      (Mr. Corage continues his personal anecdotal testimony)

      Chair:       Thank you, Mr. Corage. First before, uh, we take any
      questions, the Chair recognizes Representative Chen as being present
      now. Mr. Corage, hold on just a second, sir. Members are there any
      questions of Mr. Corage.

      Hodge:       \, I just have one.

      Chair:       Representative Hodge.

      Hodge:       Thank you. You mentioned the compensation paid at $25
      dollar, $25,000.00 a month. Is that what you meant?

      Corage:     No. Um, it was $25,000.00 a year at the time when you were
      locked up and then they they raised it to $50,000.00 a year now. But I
      could not get that because, you know, I needed, um, my hand on the
      attomey, I get that the attomey didn't know like after we took the
      compensation, uh, a couple months later, the bill passed where raised up

                                                                                     It-'   OOi
        to $50,000.00 a year but it's not retroactive. So I can not get the, you

        Hodge:        Right. They the the the the bill, the, excuse me, the the
        legislation that was in place that when you were released, gave you
        $25,000.00 a year?

        Corage:      Yes, Ma'am.

        Hodge:       Okay. But when you said $25,000.00 a month, I didn't want
        that to be confused.

        Corage:      Yes, Ma'am.

        Hodge:       Thank you.
        Chair:       Members, any other questions? Representative Moody?
[1      Moody:       Yes, sir.

o       Chair:       Hold on, sir.

o       Corage:


                    Thank you, you also mentioned that you had to pay taxes on
        that which was disbursed to you.
J       Corage:      Yes sir.
[J      Moody:       What kind of tax bracket did that put you in? Um, they took
        quite a bit of it back, didn't they?
:J      Corage:       Yeah, they took a lot. Like a lot of tax, like 30%. And then,
        um, I had to pay the attorney fees and then I still owed people now that
[J      my Momma ripping and running around trying to get money to hire an
        attorney so she can try and get her son out. And then all the appeal
        attorneys shot me down and said that I've got to find the perpetrator that
;]      committed the crime. But, lucky the lord have that, um, I would, I actually
        did; um, the database that was my families, um, hired an attorney to pay
'J      for and refind the perpetrator who committed the crime and that's why I
        got out. Under that, every time I think about it, it's just sad, you know. My
        girlfriend didn't have to die, you know. They didn't have to kill her. She's
        so innocent, you know. And then they throw me in the dungeon, you
    J   now. Not not just she just raped and get killed and they have to throw me

                                                                                        ,",~'   008
in jail, in the dungeons and all the situations that I have to go through. It
sometimes, my right eye been been hurting real bad because I get into
this situation that I did like, they hit my eyes and stuff and some things that
I tried to cry it out to whoever and I cried out to them and stuff, you know,
and then during my trial I told the Judge, I'd say why would you want to
lock up an innocent man? Illdid not commit this crime. I did not do
 anything and nobody hear me. Even the, underTDC I was trying to
scream or cry and write to everybody that I could possibly think of. And
nobody hear me. And then I suffer, all my life I suffer. And then I came
and still suffer. And then all the experiences and stuff I used to work and
 have, even now it's not going to find a job. They've got to have
 experience, like nowadays and stuff and then I can not do anything; I
 can't do anything about it. And I just want to be able to take care of my
 little kids and stuff and I don't know how.

Moody:      I want to say thank you for being here and I know it is difficult
to make, to recall these things and I want to tell you this; I hear you
standing here today.

Corage:      Thank you, sir.

Moody:     And I hear you and I hear the other gentlemen that have
been up here.    .

Corage:    Thank you, sir~ That's why I'm here, some, you know, what the
members, um, talking to me, um, I get support about it and then I get
emotional cause I think, cause, you know, it has been a long time since
nobody ever hear me. Thank you.

Moody:        Thank you.

Chair:        Thank you, Mr. Corage. Members, any other questions? At
this time the Chair wants to recognize Representative Christian as now
being present. Chair now calls Charles Chapman with the Innocence
Project of Texas. Sir, if you could state your name.

Chapman: Good evening. My name is Charles Chapman. I, um, am
representing, um, the Innocent Project of Texas and myself. Um, with the
one page that I have here today because this is a situation that really
needs to be addressed by ...

 (Mr. Chapman continues his personal anecdotal testimony)

                                                                                  '. II· -'.
                                                                                           -   -   Ooe

        Chair:         Thank you, Mr. Chapman. Members any questions? Now?
lJ    . Thank you, sir. Chair next calls Cory Seshion with the Innocence Project of
        Texas. Sir, if you could state your name.
']     Session:         Cory Session representing the Innocence Project of Texas and
       my brother, Timothy Cole, deceased. Members, I have an exhibit here.
i]     Mother will you stand? This is exhibit A. The mother of Timothy Cole. In this
       bill there is a provision for the deceased. We've had disappointments by
       the score but my mother has a heartache that I can not even imagine.
o      No amount of money will bring Timothy back. But this bill is a start. Grief
       counseling is there. Whatever she chooses to do with it, it would be there
       for her. I've made a trip down here once a week since this session began.
~J     And I've done what I call Cole calls; C-O-L-E calls on each of the
       members offices. And some have said the system goes to high, we've got
       to get it lower. I ask any of you to tell me the price of a man's life. It's
[J     infinite. There is a rainy day fund. If you have to tap it, my mother has had
       a rainy day for nearly a quarter century. Some have said imagine at 2:30

o      am in September of 1986 I was at home, all of us came home from school.
       2:30 in the morning, I heard a shout, a scream, a chant like I've never
       heard before. It was my mother. Everyone lay dead silent asleep at
J      home. That was a nervous breakdown. Chanting back and forth, Father,
       I know you know my son didn't do this. How do you compensate

o      someone for that? My brother, Tim, the toll took on him. He was a good
       soldier. But towards the end, he began to breakdown. Physically,
        emotionally and mentally. You know, one day we are all going to stand

o      before the God of history and we will speak in terms of things we've done
        but its things that I can hear the God of history saying, that was not
        enough. When my son was hungry, when he needed shelter, you fed him

        none. We are all going to have to answer for something. I ask you in this
        portion of that bill, you decide what is enough for Ruby Session. My
        mother went to school at TCU, graduated at night, went to school at
        night, that was a role model for us, all 7 of us went to college. How they
        did it I have no idea. I have 5 children, my wife and I, but we do it

o       because Timothy had the ultimate complaint but he never complained.
        My children want to go to Texas Tech University. They said I want to go to
        the school where Uncle Tim went, Uncle Reggie and Aunt Karen. But
-1      members, I challenge you to go to your colleagues and plead the case,
~J      be Ruby Session and Timothy Cole's proxy and ask your members what is
        enough? Tap the rainy day fund. These men, 39 of them, have had an

J       equivalent of 400 years of cabin fever. How do you help them out? This
        bill is a start. It is a jump start. And I WOUld, before I sit down, III ask you
        one thing, and the Govemor has promised us a meeting just Tuesday to
J       meet with my Mother. If you get to him before I do, I ask you to ask the
        Governor to issue an executive order that on December 2nd , 2009, the 10th

                                                                                           It   _.   Ole
     anniversary of Timothy's death, that at 4:13 pm, that all state office
     buildings lower their flags to half staff. I petition the Chancellor at Texas
     Tech and the President to give Tim his posthumous diploma. These men
     want to try and earn a diploma, he was on his way. Help me in that way.
     I got a letter back that said it is under consideration. As the Governor
     considers that and that on the college campus of Texas Tech at 4:13 pm,
     that that bell ring 13 times for the 13 years he spent in prison so that
     everybody in Lubbock will know for whom the bell tolls. Thank you.

     Chair:      Thank you, Mr. Session. Members any questions? No
     questions. Thank you, sir. The Chair calls Kevin Glasheen, representing, uh,
     signed on as representing various exonerees, Billy Smith, James Woodard,
     Thomas McAllen. Sir, if you could state your name.

     Glasheen: I'm Kevin Glasheen and I also represent a number of other,
     uh, exonerees to have claims pending and am working with the Cole
     family as well. I'm a civil lawyer, have been one for 20 years and am
     board certified in civil trial law and I'm proud to be representing these
     men who all have such strong character. That's the most impressive thing
     to me about this entire situation is how much character these men have.
     And what they have is faith in the justice system. We heard a little bit
     about that but I will tell you that Tim Cole was offered probation if he
     would plead guilty. But because of his faith in the justice system he turned
     that down and went to trial and was found guilty and sent to the
     penitentiary. James Woodard was brought up for parole 9 times and was
     told he had to accept responsibility for his crime and admit he was guilty
     to be eligible for parole and 9 times he said I didn't do it and was sent
     back to his cell. I'm talking about the faith of Keith Turner who had to go
     through sex offender treatment program and was told he couldn't
     terminate treatment until he had admitted and accepted responsibility
     for his crime and he'd write on the form, not guilty, not guilty, not guilty
      and turn it back in because they had faith in the justice system. And
     these men are not bitter or angry, but they want justice and they want
      peace and there are 2 forms of law in our system; criminal law and civil
      law. I don't know much about criminal law, I've never done it. all I've
      done in my 20 years of practicing law is civil law and I represent people
      who want Justice in the civil justice system and there is only one tool that
      we have to do justice in the civil justice system, one tool. and that is
      money. That is the only tool we have because I hear people say there is
      no way we can make it right. There is nothing we can do. What kind of
      price can you put on a man's life? You can't put one. It won't bring
      back the dead. I've heard that before. I've heard it when drunk drivers
      have run a red light and killed somebody. But you know what. money is
      the tool that we use to do justice in civil justice system and somebody said
            that money is not the root of all evil; it's the love of money. These men
      J      love God, family, truth and justice and they just want some peace and
            they need some money to get some peace in their lives. A a a bunch of
      :]    these guys came to me when they got exonerated and were referred to
             me by the Innocence Project for some civil, evaluation of the civil claim
            and their remedies and there are 2 ways they can go. They can file
  ]          lawsuits and civil rights violations in federal court or they can accept the
            state comp, compensation. And if they accept the state compensation
             as it is or as it's amended, then they give up their right to sue anybody.
  ]         They give up all their civil rights claims, all their rights to further, for to seek
             damages for constitutional violations and when we look at what their

  ~]         claims are worth; what are their damages? First, we look at the effect on
            their lives. Steven Phillips and Greg Wallace both went into the.
             penitentiary when they had a 1 year old child and got out when those
 J           children were 18 or 19 years old. Those kids grew up, Dad's in prison as a
             rapist. That's what the kids grew up with. One on the exonerees told us,
             you know, you know it's bad that you've been handed some shame
 J          when all the other convicts in the system think you are the lowest of the
             low. Tim Cole when he first went into prison was hit over the back of the

 o           head. by a lock that somebody swung and hit him over the head with it.
             Fortunately, he wasn't seriously injured by it but he was assaulted because
             he's a rapist. There are folks like James Giles that when he got out

 o           couldn't live with his own children because he's a sex offender. People
             like Billy Smith who have never had children and won't have children
             because he's too long in life to start now. Marriages were destroyed,
 J           people's mom's and dad's died while they were in the penitentiary, died
              believing that their son's had been, were told by the state of Texas that
             their child was a rapist. There's no provision for health insurance or
[J            medical care in the existing law, like Ron Taylor who is a diabetic, walked
             out of the penitentiary and had no insulin and no way to get it, except to
             go borrow the money. Billy Smith, whose diabetic, can't get health
U            insurance pre-existing condition. I asked my staff, go apply for Social
             Security Disability, we'll get him on Medicare, they can't deny him on a
              pre-existing condition, he's old enough, he's got some some diabetes and
~]            some other health health issues; my staff comes back and says he's
              denied; hasn't paid in enough to the system because he wasn't an
~J            employee to get the credits. I've got a client with a seizure disorder who
              isn't here because he was, head injuries because he was beat for not
           . joining the Arian Brotherhood and was beat unconscious and spent 10
[]            days in a coma in the penitentiary with head injuries. He's struggling and
              living out in Lubbock to live. The employment problems aren't going to
              go away for these guys, the lack of work history is one thing and
:l            expunction is great but the private databases as you've heard aren't
              govemed by them and there are so many private databases with criminal

                                                                                                   ,.". - - 012
     J      history and sex offenders that employers use, apartment complexes use.
           These guys couldn't get in a place to live. Couldn't get a lease because
            they are convicted sex offenders and those databases don't get
     J     expunged when somebody gets an expunction. When you go apply for
            a job and they say where have you been for 20 years, that's a self
            reporting kind of deal that no expunction is going to have to take care of,
     l~     you have to say something and what are you going to say? Oh, I was
            found not guilty. I really didn't do it. Anthony Robinson who got out, had

 o          been an officer in the army, had a master's in computer science, couldn't
           work in his field because as a sex offender, he couldn't work with
            computers. He took a job making minimum wage so that he could have
 o          health insurance. People like Brandon Moon who could never go to
           school or get an education; he COUldn't go to school in the penitentiary

 o          because of his offense level. He's not eligible to go to school because of
            the nature of his offense and couldn't get his transcripts released because
            he had defaulted on student loans when he went into the penitentiary
            and couldn't even get his transcripts transferred in to get credit to get an
 []         an a starting point for his education, even in the penitentiary. The existing
            compensation law when you address all of those damages and we heard
 []       . from Mr. Corage as an example of someone who got compensation, but
            even someone in 10 years at $50,000.00 a year, that's $500,000.00 under
            the current law. It is taxable federal income tax only exempts' personal
[]          injury settlements and there has to be a claim for personal, physical injury
            under the tax code. We hired a professor of tax at Texas Tech University to
            research the issue and it is taxable. We have exonerees who have gotten
o           compensation who didn't know it was taxable or got bad advise from
            attorneys who now have tax liens on them and are paying 50 - 75- 80

o           dollars a month and while they are living on food stamps to pay a tax bill
            on compensation that they didn't know was taxable, but if you pay your
            tax on on for 10 years, that takes you down to maybe $300,000.00 in
            compensation if you pay accumulated debts and some attorneys fees,
[J          you might be down for $500,000.00 down to $150,000.00 which is paid in 2
            installments, $75,000.00 paid once and again the next year and you are
[]          done. Wiley Fountain got his compensation. He is living behind a liquor
            store in Dallas with a shopping cart collecting aluminum cans; broke.
             Josiah Sutton is living with family members, numerous other exonerees are
o            and that's one of the most important things that this compensation bill
             does is; provides for the annuities but it also provides that even if
             somebody did go through the compensation program like Mr. Corage did
[J           in the pasf; that they will be eligible for the annuity portion of this bill. So
             Mr. Corage, based on his 7 years of incarceration would be eligible for an
             annuity of a present value of $560,000.00 with 5% interest factor and paid
[J           out on actuarial basis would pay something like $40,000.00 a year paid

     ,    ~

     o        monthly for life for Mr. Corage, which would be something that, in my
              view, would be fair.

     o        Christian:   Can I ask a question?

              Glasheen:    Yes sir.
     Il       Chair:       Representative Christian.

     o        Christian:     Now, I'm, there are ways, have you investigated ways that
              these annuities might be considered as being annuitized and just no, or
    o         very little income tax out of these allocations?

              Glasheen: They are still taxed regardless because I, having practiced in
    o         personal injury law for 20 years, we encourage all our clients who have
              significant recoveries to and accept their payment in annuities and there
              is a special provision, provision of the tax code that makes, that that
    CJ        makes the prinCipal of all personal injury settlements non-taxable but also
              allows the interest to be non-taxable if you annuitize the recovery. But

    o         again that only applies to physical injury settlements and this wouldn't
              qualify under the current tax law. Now,we have written and
              Representative Anchia has and very greatly around this issue and he,
    fJ        when he heard this, immediately wrote a letter to Eddie Bernice Johnson
              and asked her to investigate amending the federal tax code in that
              regard. Um, but, of course, it hasn't been done yet. It's my hope that by
    ~]        establishing these annuities that there is an amendment to the tax code
              that we might get some future relief even if the amendments occur 5
              years from now.
              Christian:  I'm sure you have but just in, that one of, is there some other

o             way the state could pay this through another route?

              Glasheen: Well, we've had a lot of people working on it trying to come
              up a clever way to not pay federal income tax. But, (laughter) but but
              but but but we have, but we have retained a tax professor and gotten
              opinions on it and and certainly some CP As as well. But when we look at,
l             we talk about evaluating our, my clients federal civil rights cases cause
              they want to know, should, you know, should we accept compensation or
              should we pursue a lawsuit? And when we look at the na, the nature of
l             the damages, of course the damages are so much more substantial than
              what the compensation pays, but when we look at federal civil rights
              litigation, it's, it creates a nest for everybody. Um, you're certainly can sue
              for federal civil rights violations but the state is immune. And under the
              11 th amendment to the constitution of the United States, we can not bring

                                                                                            •. It   -   -   OH

        suit against the state of Texas or the counties for the constitutional rights
i]      violations which occurred and the state of Texas has not waived immunity
        for those things like other states have. So, you have a situation where we
:]      have municipal defendants being sued and federal court to be held
        liable for, in large part, what is state conduct through District Attomey's
        offices or through, uh, counties or state law that was, um, constitutional
il      violations in these cases and if you looked in behind all these cases, there
        is not just bad eyewitness ID but there are constitutional violations, due

o       process requires good eyewitness identification procedures, selective line-
        ups are a violation of your right to due process and equal protection law.
        Representative Hodge mentioned that disparate impact that these
        wrongful convictions have had on the African American community and
        when we look at these convictions from the early 80's of the Dallas District
        Attorney's office, I can assure you that our intention and trial has been in
J       preparing these cases for court which we've we've been doing, is to put
        the history of the Dallas District Attomey's office on trial with regard to it's
        violations of equal protection law. Henry Wade had a, uh, a famous
J       case, uh, reversed by the United States Supreme Court, a death penalty
       'case because in part they had a jury selection manual for young lawyers
        that instructed them not to have minorities on jury panels. And there were
[J       Brady violations that do need to disclose exculpatory evidence was often
        ignored and in James Woodard's case, there was evidence of tire tracks
        at the crime scene that did not match his vehicle that was withheld by
D       the police. Um, and and in most of these cases you will find eXCUlpatory
        evidence that was not disclosed, there was prosec.utorial misconduct,
[1      we've had to, because we can't sue the state we've had to sue, uh,
         former dist, uh, assistant district attomey individually, uh, because a
        witness reported that he helped her remember that the tattoo on Greg
        Wallace was not on the front but was on the back and that she went from
         being pretty sure to sure by the time she sat down to testify at trial. And
         even though prosecutors generally have immunity when they are
         engaged in the prosecutorial function, when they cross over to the
         investigative function they are reduced too good faith immunity in the
        same manner as a police officer would be. So we have individual police
         officers being sued, prosecutors sued, municipalities being sued and our
         theory is to hold municipalities liable for state conduct under conspiracy
         theories because that's all we can do. And so it's fair for the state to deal
         with this issue and relieve the burden from the municipalities who are now
         bearing, uh, the burden. We've brought lawsuits, we've prepared
         litigation, we are in federal court in Dallas on 5 cases and we were a week
         from trial in November working with the City of Dallas and they said, you
         know what, let's wait and put these cases on hold and abate them see if
         we can get compensation together in the legislative process that's fair
         and would resolve these cases and this bill was a result of a lot of

     compromised effort on everybody's part, on behalf of my clients as well,
J    who are not getting everything they would like to have. If we asked them
     what's entirely fair for them, it wouldn't be this bill before you but it takes
]    into account considerations that are physical considerations and I will tell
     you that we haven't got a fiscal note in on this bill, back on this bill yet, but
     we don't believe that, we believe that the additional cost in this bi-annual
[1   budget for increasing the compensation would be, um, about 10, 10
     million dollars in additional cost and and and the future for the annuity is

o    about 2 million dollars a year based on our analysis working with the
     Innocence Project of existing claims. I'll tell you that, um, in other states
     that have, uh, waived, uh, state immunity; there are substantial verdicts
     that you read about out of California and New York, Illinois, Ohio, urn,
[J   based on the constitutional violations where you can sue under state law
     that parallels with Federal Civil Rights Act, where they have a state, urn,

n    remedy. Texas doesn't have that. Urn, we have this Federal Civil Rights
     law which would lead to, uh, in our experience; we did mock trials on
     these cases, other lawyers have as well, if you get a jury trial you get a
[]   SUbstantial verdict. But there are so many technicalities in federal civil
     rights violations that half the guys run the risk of having a federal judge or
     court of appeals take away a verdict. I can tell you I've tried a case here
U    in Austin where we had, I got a 36 million dollar verdict against the state of
     Texas on a Whistleblower case and Judge Scott McAllen, in his wisdom,
     reduced it to 3 million dollars, so, no, getting big jury verdicts doesn't
C]   necessarily rnean big recoveries. And it also means hitting misjustice. You
     might, half these guys might end up with a great result and the other half
      are going to be on food stamps and that's not a good way to administer
     justice if you have a fair choice. My clients are willing to rnake a fair, uh,
      compromise. We don't think this legislation will negatively affect any
      pending case. Mr. Ed Heimlich has a pending case, for example, that he
      brought under a judiCial procedure that wasn't a law, that this this this bill
      eliminates. His case wouldn't be affected since it's already in process
      and in our opinion, we think the lump sum compensation is a good way to
      compensate people for what's been done in the past but the annuity
      recognizes that their damages continue into the future and that they
      have issues in the future. The bill also addresses Tim Cole's family situation
      by making that lump sum survive. Right now, under the law, if somebody
      dies in the penitentiary or dies while they are claim is pending for for
      compensation, it dies with them and there is no recovery. This corrects
      that and makes the lump sum portion alone, uh, survivable. But but this
      law also recognizes the existence of posthumous exoneration under the
      law. Um, again it would also help Mr. Corage in his situation by making
      the annuities available to those who have already gone through the, um,
      uh, proposition. I don't think there is any need to tap into any rainy day
      fund. I think the fiscal note is going to be reasonable. We've worked with,

       uh, appropriations, uh, folks, uh, people on the appropriations committee,
:]    .Chairman Pitts is supporting the bill and, um, we have, um, worked with,
       uh, Representative Dan Branch, who encouraged us to make a
       reasonable, uh, um, request and and, uh, after working with him on the,
[J     on coming up with an appropriate amount. he has also supported the bill
       as a, uh, I believe, a co-author, going on tonight. I'm not sure of the
[]     technology, terminology; so I appreciate that. Um, I will say that. um, my
       clients have had this faith in justice for a long time. Their faith in the

o      criminal justice system has been realized, their faith in the civil justice
       system has not been realized yet. It's a long tough battle. They are willing
       to fight if they need to but they are really just seeking peace. And peace
       requires security. And money can give security. And so if we can get our
       clients peace of security then they would like to, uh, hopefully state living
       happily ever after. So, thank you.

J     Chair:       Thank you Mr. Glasheen. Members, any questions?

[J    Hodge:       Yes, Mr. Chairman.

      Chair:       Representative Hodge.
[J    Hodge:      Thank you, Mr. Chairman. While I respect everything that the
      current exonerees are doing, I'm a little bit confused. I'm not a lawyer.
      Glasheen:    Okay.

~J    Hodge:         So, it's very easy to confuse me up here. So I have some
      questions for you to help clarify some things for me. Under current law,
:]    let's say, like Mr. Corage gets a $25,000.00 a year. How long does current
      law allow him to get that?

:]    Glasheen: Current law says that you have 3 years after being
      exonerated to file for compensation. Once you've filed for compensation
      and accept compensation, you are done, um, under current law and
U     there's really nothing else for you. And once you've filed and accepted
      your compensation, you are done. The way this law is amended, it says
]     that after September 1st, after the effective date,

      Hodge:       You are taking me too fast.
'J    Glasheen:     I'm sorry. I'lL

:J    Hodge:     Now, are you telling me that under current law, Mr. Corage
      had to accept his $25,000.00 a year all at one time in a lump sum?

                                                                                       ,j,.--   01~
 ~l       Glasheen: It's paid in 2 installments. Once immediately and then once
          a year later.
!]        Hodge:        Okay. And I'm I'm real familiar with the the the gentlemen
          who is now completely broke on the streets of Dallas with the push cart.
[J        I'm real familiar with 7 of them, several of them who got their money right
          away, had no real understanding about the income tax law and had
          spent all their money and then here comes the tax people, so I think this
o         annuity thing would would help some of them with that. But but here's
          where I'm concemed with and maybe you can really help me is how
          people like like Mr. Chapman and Mr. Corage and all those guys who had
c.        already accepted payments, or the lump sum. And when I look at this bill,
          it says effective September 1st, 2009. And earlier you said that they would
:]        be, um, eligible.

          Glasheen:    Yes Ma'am.
~l       . Hodge:       For for these annuities. Try to explain that to me if all their

o          money has been given and gone in this one lump sum. How, cause,
           cause II can assure you, they they do need all of the things that this bill
           states, the health care, they can't get jobs, housing is very tough, but I'm
           not understanding this annuity part in how they will benefit from that if it's
[]         not effective until 9/1 12009?

          Glasheen: Because the statute has a provision that says even if a person
          has already previously applied for lump sum compensation. They are still
          eligible for the annuity. Let me grab my copy.
CJ        ?:            Uh, uh, uh, Mr. Chairman, the the, in the substitute that would
          be on page 7 where it indicates a person who received compensation is
]         entitled to annuity payments, uh, base on, uh, present value sum equal to
          the amount the person received, um, if the person were to receive comp,
          compensation on September 1st of 2009. So you go back to, uh, uh, and
l ...J    that that is found in the last, in section 11, uh, lines 8 through 20.

J         Hodge:        Thank you. Thank you .. Thank you.

          ?:            Any other questions?
]         Chair:       Members, are there any other questions of Mr. Glasheen? No
          other questions? Thank you, sir.
c .• 1
           Glashing:    Thank you.

 '.    Chair:       Next the Chair calls Larry Casto, with the City of Dallas. If you
       could state your name?
 [J    Casto:       Mr. Chairman, members, my name is Larry Casto. I'm the
       Legislative Director for the City of Dallas and here representing Mayor Tom
 [J    Leopard. Uh, he wished that I, on his behalf, introduce into the record a
       letter of support for HB 1736. I won't read the letter, I know it has been a
       long day but he really wanted ne to convey on his behalf, uh, his strong,
II     uh, support of 1736, it's passage and it's funning, funding and, uh, his most
       sincere appreciation to Representative Anchia for his leadership on this
       this very important matter. That's alii have Mr. Chairman.
       Chair:      Members, are there any questions of Mr. Casto? No
]      questions? Thank you.

       Casto:       Thank you.
        Chair:        Next the Chair calls and and forgive forgive me if I'm getting
        this wrong, is it Christina? Come on up, Hossler. Hold on just a second
[J      befo:e you, in your, and you are testifying as a private individual? If you
      . could state your name please?

J      Hossler:    Hi, I'm Christina Hossler and I am testifying on my own behalf.
       Um, I'm from Dallas, Texas and I...
']     (Ms. Hossler continues her personal anecdotal testimony.)

]      Chair:         Chair next calls Ed Heimlich with the Informed Citizens of
       Texas. Sir, if you could state your name.

lJ     Heimlich:     I'm Ed Heimlich, the Executive Director of Informed Citizens of
       Texas. I'm also an exonerate. My exoneration came in 1999 after the
       Texas Court of Criminal Appeals found no error in the reversal with a
J      rendering of acquittal by the Court of Appeals in, uh, Houston, 141h. I filed
       my lawsuit in 2000 before the revision, the major revision that was made in
]      2001. I filed it as a constitutional claim and said that the, under our Texas
       Constitution, the statute at that time, was clearly void as unconstitutional
       law. That,um, helped to spur the legislature on to make the major revision
:J     in 2001 where they set up, the legislature in that session set up sub-chapter
       B for administrative claims and sub-chapter providing for a lawsuit.
       Administrative claim procedure was intended to allow for compensation
]      with very minimal attorney's fees. That's not always worked out for those
       that used the administrative claim process. The bill at that time was
                                                                                        ..   -
         vague as to whether or not if you filed under the administrative claim, you
 []      would still be able to pursue a lawsuit to recover all of your property loss.
         Um, that's since been addressed by the original author of the bill and
 f]      others, uh, to say that now you can have the administrative claim and file
         a lawsuit but to avoid that potential pitfall, I went strictly with the lawsuit.
         There's now a, another bill, uh, in the Senate that will further clarify that so
         that you could file an administrative claim, get some compensation more
         quickly, also file a lawsuit against the state to recover your damages and

 o       then Whatever you had accepted under the administrative would be
         deducted from that. I'm, I've lived with this now for 9 years. I have not
         yet received a penny in restitution or compensation. I have been to every
         legislative session since 2001,2003,2005,2007, now 2009. So I have
         tracked this, this statute that provides compensation or is suppose to
         provide compensation for the victims of wrongful imprisonment and have
~        observed the the tinkering that has gone on since then. It should be clear
         to anybody who attended a public school in Texas that the intent of our
         Texas Constitution is to secure the inherent, inalienable right of an
[J       individual to have restitution, full and complete for their injuries and
         damages caused by the state. The state is the party responsible. This city

o        that we are in, Austin, is named after a victim of wrongful imprisonment If
         the state of Mexico had compensated that victim, Stephen F. Austin, we
         might still be the state of Mexico. Likewise with the state of Great Britain
          and it's King. The sovereign of England which is still recognized as the
[J        King, lost his immunity from suit or liability in 1215, over 800 years ago, with
         the Magna Carta. We're, our United States is independent from England

J         because the King and his ministers ...

         (Mr. Heimlich continues his personal anecdotal testimony.)
         Heimlich:     I have a problem with Section 8 that repeals sub-chapter C of
         103. And then you also have the language in the, under section 3,
J        Section 105.052 in the Anchia bill, lump sum and certain other payments
         says a person who meets the requirements of 103.001 is entitled to
         compensation amount equal to, so that leaves in the current statute this
~]       language of actual innocence, uh, which has been defined but it's a
         definition that, uh, our Attorney General in, uh, attorney's under his

U        direction and supervision don't want to accept, uh, or honor. Urn, actual
         innocence is whenever the burden of proof is on the defendant to prove
         their innocence as opposed to in the original trial when the burden of
fJ       proof is on the state, the prosecution. Urn, actual guilt is not required to
         convict somebody, only guilt beyond a reasonable doubt if there is, uh,
         error of fact that's later discovered or if there is a fact of law that, uh,
]        contributed to the wrongful conviction and imprisonment and that is,
         either one is discovered on appeal when the, uh, burden is on the

                                                                                             n .-   02(
     defendant to prove their innocence, that and their granted relief from the
     conviction with an acquittal, that's relief on the basis of actual
     innocence. But this is not specified in the bill or in the current statute and
     it provides a means for attomey's at public expense to litigate, to obstruct
     justice, to further punish a citizen of Texas or an individual for enforcing
     their right to restitution. Uh, so that is something that I'd like to, uh, you to
     consider. Also, under that same section the start with the arrest and the
     charge, not with the time when they are, when you are sent to prison, it
     starts when you are charged and arrested. And then you go through 2
     years and 4 months, in my case, of torture, trying to be bullied into
     accepting a plea bargain that would cost no imprisonment, no money,
     no probation, no parole, but would give the the state actors an out and
[J   the state an out, if you just plead guilty and I would not accept that and
     so they kept extending it, putting it off, putting it off, 2 years and 4 months
     while my life spiraled into the abyss and the you get a speedy trial that's a
     total sham and then you are in prison. The injury and damages do not
      begin with the imprisonment; they begin with the charge and the arrest
J     that's wrongful to begin with. The injury and damages to your person and
     your property does not end when you are released, I think that's apparent

o     from the testimony that you have heard. It continues for the rest of your
      life most likely and it certainly continues until you get some restitution,
      some compensation, so I, this, trying to limit it to the time in prison

o     multiplied by a number of years; it's like saying that somebody has a 10
      year old car and and it's damaged in an accident and, but it's still
      runable, and somebody else has a Mercedes and it's totaled and there is

o     fatality, well, $80,000.00 for each.

     Chair:        Mr. Heimlich and I appreciate all this testimony. I think we all
u    do, if you could wrap up your testimony. We need to be sensitive of the,
     uh, several dozen other bills that we have on the schedule today and the
     other witnesses that we have. I don't mean to cut you off. I certainly
j    appreciate your passion, um, but if you COUld, uh, uh, uh, give us a
     concise, uh, conclusion, uh, to what you are saying and not launch back
     into, uh, the main part of what you are discussing, uh, we would
]    appreciate that so that we could get what you, uh, are trying to tell us
     and then we could move onto the other witnesses who are here to testify
     on these bills today, sir.
     Heimlich:     Well, I hope that I have, uh, I hope that you will take a look at
'}   this, uh, actual innocence language. Uh, it should be apparent that there
     is actual innocence whenever a court in a final court order, uh, finds, uh,
     cause to acquit, uh, a person who has been convicted. That should be
,]   sufficient right there for them to be able to receive some restitution for
     what's been done too them. Our state spends over 4 billion dollars a

,]                                                                                       " ~ - 0 ~J
      year, um, maintaining the record of the highest incarceration rate of the
Ll    world, our govemment for our state has the highest incarceration rate,
      highest percentage of its citizens in prison of any other govemment on the
      planet. And we have 100 million dollars, over 100 million dollars in our
[J    victims' compensation fund and yet when it comes to, I'm not taking
      about this legislative session necessarily, but past legislative sessions, when
~J    it comes to appropriating the money to comp, provide restitution to the
      victims of the most heinous crime, even if it was unintentional, just due to
      criminal negligence by the entity, the artificial person of this state then
o     then suddenly they cry poverty; oh our state is too poor.

      Chair:      Thank you, Mr. Heimlich. Thank you very much. Members,
]     are there any questions of Mr. Heimlich? No other questions? Thank you
      very much, sir.
]     Heimlich:    Thank you.

~J    Chair:           At this time with, uh, are there any other witnesses to testify on
      either House Bill at this time? No other witnesses to testify on either House

o     Bill 'at this time? The Chair recognizes, uh, Representative Anchia to close
      on HB 1736.

      Anchia:        Thank you Mr., uh, Chairman and members of the committee.
[J    I look forward to working with Chairman Gallegos; he has some excellent
      suggestions about how to improve, uh, uh, judicial procedures in this bill.

o     Uh, I think there was a terrific suggestion made earlier by one of our
      witnesses, uh, about extending health care benefits to dependants as
      well. I think that makes sense. If you buy in to, uh, to the plan or have that
u     plan extended to you, it should apply to your dependant children and
      spouse. So, uh, thank you. I look forward to working with you and, uh,
      getting this over the goal line. Thanks.
      Chair:       Any questions of Representative Anchia? All right, uh, Chair
      will withdraw the committee substitute for 17, House Bill 1736 and leave
J     House Bill 1736 pending at this time. Now the Chair recognizes
      Representative Gallegos, um, on HB 3584.
]     (House Bill 1736 was left pending before the House Committee on Criminal
      Jurisprudence. The House Committee on Criminal Jurisprudence
:]    considered HB 1736 in a formal meeting on April 9, 2009. There are no
      audiotapes of this meeting available. The House Committee on Criminal
      Jurisprudence considered and adopted the Committee Substitute to
:.1   House Bill 1736 on April 9, 2009. There are no audiotapes of this meeting
      available. The House Committee on Criminal Jurisprudence placed

']                                                                                          II   -   022
       House Bill 1736 on the General Calendar with the recommendation that it
[]     do pass and be printed.)

o      House Bill 1736
       Acts 2009, 81 st Legislature, Regular Session
       Texas House of Representatives
i]     2nd Reading and Floor Debate
       April 24, 2009
       1:49:53 - 2:03:00
o       Speaker:       Chair lays out on 2nd reading, House Bill 1736. The Clerk will
        read the bill.

        Clerk:       HB 1736 by Anchia relating to compensation of persons
        wrongfully imprisoned.

        Chair:       The Chair recognizes Mr. Anchia.
o        Anchia:        Thank you Mr. Speaker and members. If I could get quiet in
         the hall, Mr. Speaker? Members, the Chamber is going to be dealing with
!]       something very important. We frequently in this body make the trivial
         important but we are not doing that today. We frequently in this body
         call balls and strikes on which industry is going to make more money, but
[]     . we are not going to do that today. Uh, today when we said the Pledge
         of Allegiance, we talked about liberty and justice for all. So today in HB
          1736, it's about trying to achieve some semblance of justice. I'd like for
,-       you to pay attention to the dais, because we are not talking about
         abstract concepts today, we are talking about real men. And I am going
11       to tell you stories about innocent men who were sent to jail, whose families
U        were ripped apart, there are children who are separated from their
         fathers and right now are trying to put their lives back together. And with
[1        each story I don't want you to think of these men as the other. I want you
          to think of them as us. Because frankly, what's happening to these men

o         could happen to any of us, happen to the Representatives in this body,
          happen to our children that we are very very proud of and maybe off at
          college. So I ask you for a few moments to think about walking in their
          shoes. The first person I want to talk to you about is James Waller. James
D         Waller went to jail an innocent man in 1983. He was sentenced to 30
          years in prison. He served 11. After Waller was paroled, he was forced to
:]        register as a sex offender while he fought to clear his name. He met a
          woman who believed in him. He was honest with her, he told her his story
          and she accepted it. They married and he was going to be a father.
',-J      While he and his wife struggled to prove his innocence, his wife and
          unbom baby were killed in a car accident. So standing alone Mr. Waller

                                                                                        " -   022
      finally proved his innocence via DNA evidence in 2007. I want to tell you
,-]   about James Giles, James Curtis Giles, whose only sin was having a name
      similar to an offender named James Earl Giles who actually committed
      the crime that James Curtis Giles was was sentenced for. He went to jail in
U     1983 an innocent man, was sentenced to 30 years, he served 10 years in
      prison. Mr. Giles was married with a wife and a young son and upon his
[]    parole, he went home with them but because he was a registered sex
      offender he couldn't stay. He was sent away. He couldn't live with his
      family. Ultimately, it cost him his marriage and because of his status he
iJ    couldn't visit with his son who is afflicted with sickle cell anemia without
      being unsupervised. Steven Phillips went to jail an innocent man in 1982,
      sentenced to 30 years. He spent 25 and % years in prison. Mr. Phillips was
[]    a husband and a father and effectively lost his family, his children grew up
      thinking their father was a rapist. He also was unable to see his his his
      children for dlmost 30 years. Thomas McAllen went to jail an innocent
Ll    man in 1985, sentenced to life in prison and served 22 and % years.
      During his over, almost over 23 years of incarceration, he lost his father, his
J     grandparents, his sister. he missed watching his nieces and nephews grow
      up and he lost any opportunity to have a family of his own. Charles
      Chapman was sent to jail an innocent man in 1981. He was sentenced to
o     99 years in prison. He served 26 and a %. These men are men of
      character and and the Chapman case underlies it all. On 3 different
      occasions his parole came up and so Mr. Chapman go to your parole
[J    hearing. He walked out of his cell and at the parole hearing they said,
      hey, just admit it. just admit that you did it. If you admit your guilt. we'll
      give you parole. Each of the 3 times he stood firm believing I the justice
[]    system and his innocence and he walked back to his cell, an innocent
       man to serve more of an unjust prison term. Billy Smith was sent to jail an
:]     innocent man in 1987, sentenced to life, served almost 20 years. The
       actual criminal went on to rape 5 more women in Dallas County before
       being coss, caught. Since his release, he has struggled to find a job, find
[]     a place to live, struggled to fit in and until very recently was on the rolls as
       a sex offender even though he was an exoneree. Ladies and gentlemen,
       there are dozens of other examples like the men I talked to you about
D      today but the one I'd like to share a little bit more about is Tim Cole
       because HB 1736 and its Senate companion 2814 by Senator Duncan are

o      called the Tim Cole Act. Tim Cole's picture is in front of us. And the
       reason Tim's case is, is so prescient is I'm 40 years old. Tim Cole died in jail
       when he was 39, an innocent man. He served his country admirably and
       been discharged honorably from the Army and he went to Texas Tech
[]     University on the GI Bill. His sister was already a law student at Texas Tech
        University. In fact, his family was raised by his mother who is an educator,
]      good family, good kids. And Tim Cole's only sin was being friendly to an
        undercover police officer outside a Pizza Hut. as most undergraduates

]                                                                                         .i   -.
       would be. He was convicted and sent to jail an innocent man and
J      labeled the Texas Tech rapist. The Texas Tech rapist actually went on to
       rape other women, the serial rapist continued to terrorize the campus
[]     even after Tim Cole was in jail and year after year after year the Cole
       family, his brother Cory Sessions, worked to clear his name and finally the
     . true assailant, the true rapist admitted his guilt after the statute of
J      limitations had passed. But sadly, Tim Cole died in 1999 of an asthmatic
       attack in jail. Let me tell you what this bill does. This bill increases the lump
       sum payout for exonerees and I will tell you this bill can not make people
o      whole. If you expect it to that we will be a miserable failure because truly
       no amount of money can make people whole but I will submit to you,
       members, that we can do better than what we are doing now. And the
[]     lump sum payment only helps people get back on their feet. I mean if
       you think about it, you've been in jail for 20 and 25 years, you went in

o      understanding a rotary phone, your in an environment with laptops, IPods,
       your in an environment with with, uh, new technology, you've had no
       skills, ladies and gentlemen, you don't have a 401 K, you haven't been
o      saving any money and you are thrust into this new world that frankly fewer
       services than parolees get. Parolees are at least met with a $50.00 check

o      and a parole officer and social services, these exonerees were pushed
        out the door, said congratulations, we'll see you later. So the lump sum
       payment is important. We are going to increase the multiplier for the

o       lump sum from $50,000.00 to $80,000.00 a year. The other thing this does is
       it creates an annuity on a go forward basis. So that when these men get
        out, they have an adjustment period to get their lives back together, to
[]      reunite with family, to try to get a job and think about how hard it is to get
        a job or an apartment when you have to declare on your application;
        have you ever been convicted of a crime? Well sure, yes, I've been in jail
o       for 25 years but I'm innocent. Think about how hard it is to get a job with
        that record and many of the men and the exonerees are dealing with
        that today. The other thing is many of, many of these innocent men were
~]      convicted of rape and you are right, you must be a registered sex
        offender. It has taken a long time for many of them to get off the state
        sex offender list but many of the private sex offender lists endure and will
        not change the information. So it is virtually impossible for these men to
        get a job. The other thing that this does is it gives these men health

o       insurance. Some of these men have been denied Social Security and
        Medicare because they haven't paid into the system, because they have
         been in jail for 25 years, so this, this gives them the same kind of insurance
]       that you and I might have as members of this State House through our
         state program. And the final thing that this does is it gives them
         education. They can go to school for free for up to 120 hours at a, at a
:]       career center, at a community college or at a university because as we
         all know, it is much better to teach a man to fish than to give them fish.

     And this helps them get their lives on track. Many of these men sat in jail
[l   longer than they were outside free men. 2 other important things that I
     think this bill does that you should know about. The first thing is that if any
     of these men is convicted of a subsequent felony; they lose the money.
     So this incents them to to play by the book, to play by the rules and to
     stay out of trouble. The other thing it does is if they take this money from
[]   the state; they can't sue. Okay. And that's been important because in
     Austin alone we've had recoveries of 9 million dollars and 5 million dollars
     byexonerees. So if they take this package, they forego their 42 USC, 1983
o    lawsuit, okay? And we know where there are many pending in the courts
     today, so this does self cities avoid costly and lengthy lawsuits for civil

o    rights violations. Ladies and gentlemen, Tim Cole wrote a letter to his sister
     when he was sitting in jail, his sister was, uh, in Law School at Texas Tech
     and he urged her not to leave Texas Tech, she was distraught by the

o    situation and he said to her, quote," I siill believe in the justice system even
     though the justice system does not believe in me". So, Mr. Speaker and
     members, I ask you to support the Tim Cole Act so that we we can restore
o    the faith of these men in our justice system and we can do right by them
     and this state. Thank you Mr. Speaker and members, I move adoption.

(J   Specker:     Is there anyone wishing to speak for or against HB 1736?
     Question occurs on passage to engrossment of HB 1736. All those in favor

o    say aye. All those opposed nay. The ayes have it. HB 1736 is passed to

o    Anchia:       Mr. Speaker? Mr. Speaker? I think some special recognitions
     are are in order. In the gallery and I may not have everyone's name but
     our friends, family and many of the exonerees themselves; in the Gallery
o    we have James Waller, James. We have Charles Chapman, Charles.
     We've got Patrick Waller, Patrick. We've got Steven Phillips, Steven.
     We've got Wiley Fountain, is Wiley Fountain here? We've got Billy
o    McAllen. Billy McAllen please stand up. And we've got John Lindsey.
     John, please rise.

o    (Applause.)

J    Anchia:      Gentlemen, thank you. Thank you for being here. God bless
     you. Mr. Speaker and members, there are also other people I want to
     thank, uh, on this legislation. Senator Duncan who's carrying the
]    counterpart in the Senate. Uh, Chairman Gallegos who is very very helpful
     and collaborative during this process and allowed me to to carry this bill
     and our joint authors, Yvonne Davis, Dan Branch, Terry Hodge and Carl
U    Iset and thank you to you members for helping to some leYel of justice for

      these men whose lives have been impacted by the system that failed
~     them. Thank you.

u     House Bill 1736
      Acts 2009, 81 51 Legislature, Regular Session
      Texas House of Representatives
o     3rd Reading and Final Passage
      April 24, 2009

o     5:55:43 - 5:57:30

      Speaker:     Third reading of HB 1736 by Anchia. The Clerk will read the

      Clerk:       HB 1736 by Anchia relating to compensation of persons

o     wrongfully imprisoned.

      Speaker:     Chair recognize Representative Anchia to explain his bill.
      .Anchia:   Thank you Mr. Speaker and members. This is the exoneree
       compensation bill that we heard earlier this morning. Move adoption.
o     Speaker:    Members, the question occurs on the adoption of HB 1736.
      Final passage of HB 1736. This is a record vote. The Clerk will ring the bell.
[J    Show the Chair voting aye. Show Mr. Anchia voting aye. Have all voted?
      There being 136 ayes, 1 nay, 1 present, not voting; HB 1736 is finally


      Senate Bill 2014 I Companion Bill for House Bill 1736
      Acts 2009,81 51 Legislature, Regular Session
      Senate Committee on State Affairs
      Public Hearing and Testimony
      April 6, 2009
      47:40 -.1 :13:20

      Chair:     The Chair lays out, uh, SB 2014 and recognizes its author,
      Senator Duncan.

      Duncan:       Members, this is a bill that, uh, Senator Ellis and I have worked
      on, uh, actually, this is a new bill but it is a concept with, uh, how do we
      treat those who have been wrongfully convicted and have, uh, been
      denied life, liberty and the pursuit of happiness by in sitting in one of our

                                                                                        . .. , -   02i

       prisons, uh, where we ultimately exonerate them of using newer
       technologies and newer procedures for, in DNA. We've had several, uh,
       lately we have actually exonerated several people, um, from, uh, crimes
       that they were wrongfully convicted of and I think you heard testimony of
       Timothy Cole case. Was a Lubbock case where, and a young man was,
     . uh, had a hopeful career, great student at Texas Tech University, a military
U      veteran, um, but was wrongfully identified and wrongfully convicted of
       rape. Uh, later, uh, he died in prison of a, of a asthma condition and then
       was later posthumously exonerated by a court. Uh, the problem is, is that
i]     there wasn't a whole lot of process that really worked well to help pardon
       him posthumously, uh, nor is there any way to, um, compensate his family
       for that loss. Uh, this bill deals with a couple of things. I do have a
D      substitute.

o     Chair:

                   Okay. Senator Duncan lays out the committee substitute.

                      Um, the substitute will do, the the sub, the bill deals with the
     . compensation package that we provide to a person who we have
       previously, uh, made a decision in the legislature to be able to award
       people $50,000.00 a year for each year they were incarcerated. Uh, this
       bill changes that. Uh, it increases, uh, uh, for those persons who were
       wrongfully incarcerated, it will increase the lump sum compensation for all
       exonerees from $50,000.00 to $80,000.00 per year including the time spent
       in the city or county jail because current compensation only applies to
       time in a TDCJ Unit and on many of these cases, uh, these persons will
       spend at least 9 months to a year in jail before they are actually
       transferred. Uh, it allows a lump sum compensation to pass to the family in
       the event the innocent person dies before a release, just as Tim, Timothy
       Cole did. This is a key feature of our bill. It creates a lifetime annuity
       payments to the exoneree based on the present value of the lump sum
       compensation that we are awarding. Uh, it annuitizes at a 5% interest rate
       and payable in equal monthly installments using actuary, actuarial
       factors. This is a similar concept to what we did for future damages in tort
       reform, if you will recall, it, uh, allows them probably more, uh,
       appropriately, um, um, assist, the the the, uh, person in getting
        adjustments in life. It allows the exoneree to join the state's group health
        benefits plan as many leave prison with health problems and will be
        excluded from coverage by private carriers. Um, it provides free tuition is
        the claimant desires to attend a state college. You will see, you will recall
!J      Senator Ellis had numerous exonerees on the Floor the other day, some of
        them have been very successful and, uh, if we want them to be, uh,
        productive citizens, this would be a very efficient way to help rehabilitate
rJ      them into society. Uh, as under current law a person who receives
        subsequent, uh, fel, felony conviction loses their eligibility for
        compensation. In other words if one of these persons who is exonerated,
r]      uh, and receives these award and is subsequently convicted of a felony;
        they will lose their right to receive any future benefits. Uh, and, uh, the
        person, any person who accepts state compensation must give up any
:1      civil suit against the state, the state, municipalities and other parties. And
        this is important because a lot of our, a lot of these wrongful convictions
        occur because of, uh, mistakes or errors that were made in the
[]      investigation by municipalities or counties and, uh, so many of the
        lawsuits, the federal, the federally, uh, federal jurisdiction lawsuits arise and
[J      expose our cities and counties to to much greater than what this award is.
        In order to, uh, access this, what we would, um, deter, uh, would be a
        very, uh, we think, um, appropriate benefit, but first they would have to
        waive their ability to bring a suit against the city, state, uh, or other parties.
        Um, there are about 38 exonerees in Texas. There are approximately 14
        persons known who have a claim that could be filed under this bill. The
]       projections are that most wrongful convictions, uh, have come to light.
        The projected the elimination of lawsuits against state and

o       local governments would offset some of the additional costs although the
        LBB indicates no appreciable fiscal impact. Currently, most of these
        eligible plaintiffs have elected to pursue federal civil rights claims instead
[]      of accepting state compensation at the current lower rate. We are
        hoping this legislation would in cent those exonerees to pursue the state
        remedy as opposed to the, um, less certain remedy, um, in the legal
lJ      system. Urn, that's the explanation. I would yield to Senator Ellis if he has
         any additional comments.                                                      .

[]      Ellis:       Thank you, Mr. Chairman. It's a good deal and I just
        appreciate working with you on it. II think if anything, we can do the
        option clean up the system, help these folks put their lives in order and
]       avoid our cities and counties having to, um, um, lose these lawsuits.

']      Chair:      Um, I had a couple of questions. The $80,000.00, um,
        regardless of what the person's previous occupation or educational level
        is? And they, what, um, where did you come up with that number?
]       Duncan:       Well, it's currently 50 and, um, we felt like and actually what
        you are doing is you you are saying look we are going to, we are going to
]       annuitize this over a long period of time and that's one of the options.

        Chair:        And the lump? 10 years, they don't get $800,000.00?
        Duncan:        They can get a lump sum but but this bill has a a key feature
:]      in it that allows annuitization which, uh, would be, uh, you've been in
        prison 20 years or 15 years, uh, it's going to take you a while to get started

I]                                                                                           02~
      and, uh, your money, money management skills might not be as good as
~l    others. $80,000.00 is, uh, is probably subjective but, you know, you think
      about it, you think about the Timothy Cole case. This kid was on the way
      to success and then ali of a sudden a a, he spends life in TOC jail. I don't
[J    know that I would want to try

      (Overlapping conversation)

      Chair:      what, someone who comes out and there is a family benefit
~l    here, someone who comes out and dies 6 months later or a year later,
      does his family benefits take over or is that?
,-    Duncan:        The family would under this bill; the family would be able to
      recover the estate. And I think it's actually the mother and, uh, the
'}    siblings, I believe.

      Chair:       Parents and siblings?
[1   ; Duncan:       Parents and siblings. One thing that, what we are trying to do
       too with this bill, Senator, and, uh, is that the reason that we've bumped
o      up the 50 to 80 primarily and I can't give you a real reason why why we
       are at 80, maybe one of our resource witnesses can, but what we are
       trying to do is incent these exonerees to pursue this course as opposed to
[]     litigate, the civil rights litigation against the state. So in order to that
       you've got to have a a carrot out there, um, that would possibly do it.

Cl    Chair:      Does it count if it, if it's parents and siblings but also spouse
      and children?
[]    Duncan:     It is. The heir's legal representatives in the state get paid a
      lump, lump sum.
:1    Ellis:       And and we want, again Mr. Chairman, trying to come up
      with a number talking to the lawyers that practice in this area, uh, it would
[J    incentivize them to do this as opposed to going to court. Cause all you
      got to do is win one of those.
c.    Chair:          I don't disagree with the content but II I'm just trying to get a
      handle on why some of the things. On the felony conviction, if there's
      been a previous felony conviction and then this wrong conviction. Are
      they still eligible?

      Ellis:       Yes.

         Chair:     If the felony conviction is to happen after they were
]        exonerated?

         Ellis:       That is correct.

         Chair:      Not the actual. What if the felonY was committed before but
o        they weren't tried until after, I mean is there, does it matter? Is it the
         conviction that counts, not when it was actually committed?

o        Ellis:      That's a good point. I might Mr. Chairman, suggest we bring
         a resource up on that one.
c.       Chair:       Yeah, okay.

]        Ellis:      And I think that they would not be eligible if it was, if the
         felony was committed before, the trial came afterwards.

]        Chair:      What if they committed the felony before convicted of the
         wrongful conviction and then?

J        Ellis:       It would not apply.

         Chair:       The other question I had, sometimes with these wrongful
]        convictions, it's a purposeful omission, commission by legal authorities,
         either police officers or district attomey's office. Does the state have any
]        recourse to go back and seek damages from the people who
         purposefully did this?

]        Ellis:       I, I don't think so. Um,

          Chair:      I mean, if all of a sudden we've, someone has tragically been
]         put in one day is too long, but 10 years, $800,000.00, roughly $800,000.00
         .settlement and it was because someone knowingly held evidence or did
          abuse the legal process. Why would the state not then perhaps need to
]         have recourse against that offender for doing that because all of a
          sudden the state is obligated for maybe a million dollars or more, um,
]         should we put that in here to have recourse that the state could sue for

rJ       Ellis:       I, I, I would, my preference would be to not put it in this bill for
         the simple reason. These issues are difficult to move along through the
         process and if we ended up in a position where we were fighting with the
.]       counties, you know, it doesn't mean that as a separate matter we ought
         not give the state the ability to go back and recoup it. Senator West had

r    1                                                                                       031
      a bill. I think 4 years ago, to increase the compensation and tie it to
      making the county where the wrongful conviction was held have to, um,
      pay the money. Well, sometimes it could be in a state district criminal
      court or the judge was appointed by the Governor, confirmed by an
      appointment, it gets kind of.

      (Overlapping conversation)

      Chair:          But a purposeful act, I wonder if it should be a personal
      liability, but again, I'm not going to muddy up your bill with an
      amendment. I'm just thinking out loud.

      Ellis:         You you you would be a separate fight. You know you do
      have issues like somebody's license and a complicated issue is right there,
:]    is it worth the suing, I guess.

      Chair:          Okay. Uh, without further questions, we have 2 cards here.
]     Um, we will open public testimony. We have, uh, Kevin, uh, Glasheen, I
      think it is. He can 'correct me, .uh, representing several exonerees, would
      like to testify for the bill and, uh, Ed Heimlich, who testified earlier, the
o     Informed Citizens of Texas, is here with oral and written testimony on the
      bill. Those 2 gentlemen could come forward. Please have a seat and, uh,
      you are Mr. Glasheen? Before Mr. Glasheen testifies, where did you go to
rJ    law school?

      Glasheen:    Texas Tech.
      Chair:       So that disqualifies you.
L     Glasheen:    I'm also a graduate of Texas A&M University.

:I    ?:         Senator Wentworth and I always like to make sure we know
      the pedigree of those who are testifying.

lJ    Chair:    Okay, with that said, we will start with you, sir. State your
      name and who your represent, please.

'J    Glasheen: I'm Kevin Glasheen. I represent a number of the exonerees;
      uh, James Waller, James Giles, Billy Smith, Ron Taylor, Charles Chapman,

J     Steven Phillips, Craig Wallace, Thomas McGowan, James Woodard and I
      represent Tim Cole's family; Ruby Session and his brother Cory Session.
      And I'm a civil attorney, I have been practicing about 20 years, I am
J     board certified in civil trial law. I run my practice in Lubbock, Texas. I was
      referred these civil suits by the Innocence Project of Texas to represent the

                                                                                      • If .   ~
              exonerees in civil suitso And I wanted to say just a couple of things about
i]            the exonerees, I'm been deeply impressed with the character of the
              people that I represent. These folks have faith in the justice system. They
']            are not bitter and angry but they do want justice. Tim Cole was offered
              probation if he would plead guilty to a rape that he didn't commit and he
              refused because he had faith in the justice system. Likewise, James
lJ            Woodard came up for parole 9 times in a row and was told he would
              have to accept responsibility for his crime to get parole but 9 times, 9
              years in a row he said no I didn't do it. The damages that these men have
i]            suffered is unimaginable. Uh, folks who went in when their children, Greg
              Wallace's child was 1 years old and when he went in, he's 18 years old
              now. Same thing with Steven Phillips, people who's fam, mothers and
:]            dad's died thinking their child was a convicted rapist. And as these folks
              have pointed out to me, um, there are the lowest of the low in the

:J            penitentiary. Nobody is lower than a rapist and when TIm Cole was
              incarcerated, the first thing that happened was he was beat. Uh, these
              folks have medical issues, diabetes, um, Billy Smith who was 55 years old or
[J      -',
              so, um, was in 20 years and he came out and he's got diabetes; he can't
              get health insurance. I asked my staff to apply for social security disability
              so that he could get on Medicare and he's got other disability issues. My
J             staff comes back to me, tells me he's not eligible because he hasn't paid
              in enough to the system. I have a client, Greg Wallace, who has a head
[oJ           injury, um, because he was beat and in a coma 11 days in the
Co            penitentiary because he wouldn't join the a gang. Um, and so these folks
              who were all exonerated and absolutely innocent of these crimes that
]              they were incarcerated for and when they get out they have problems
               like employment, of course, because of the many years of incarceration
               but it goes beyond that. Um, you can expunge their records but the
]              private databases that are out there don't clear their records and they
               have self reporting issues like where were you for the last 20 years, what
               have you been doing. They have to say something about where they
]              have been and they have serious employment issues. Ente' Corage is a
               good example, this is a guy who grew up in Cambodia under Polpot, he
               migrated to the United States when he was 11 years old, the same age a
]              lot of our kids join (?), his girlfriend was raped and murdered. The police
               convicted him of the, or targeted him for the crime, he was, he had faith
]              in the justice system, went to a bench trial, was found guilty and he served
               8 years before he was let out. And the problem with these, uh, the current
                compensation bill is that, one of the problems is that the recovery is
]              taxable under federal income tax law, um, because personal injury
                settlements and recoveries are not taxable but these are not for recovery
               for physical injuries. Incarceration has been deemed a taxable
    1           compensation by the Internal Revenue Service. Now, we've written to Ed
                and Bernice Johnson and asked her help in trying to amend the Internal

  Revenue Code but just know that is not an immediate process and it's
  been a problem for folks as if a person recovers, uh, 1 years at $50,000.00
  a year, that's $300,000.00 after taxes cause of the higher tax bracket.
  And then after some debts and even some attomey's fees; that might be
  reduced again to $150,000.00, um, all these guys have debts. And Ente'
. Corage is a good example, his mother borrowed money from everyone
  she could to pursue his appeals while he was in the penitentiary and even
  had to pay for a private DNA database testing to finally locate the actual
  rapist in her son's offense. Um, by the time $500,000.00 gets reduced by
  taxes or accrued debts, uh, to maybe $150,000.00 which would be paid
  out in 2 single lump sum installments of $75, 000.00 and $75,000DO. Uh,
  these folks may have known they have pending compensation claims
  came from (?) for representation because if they accept state
  compensation under the current law and under this proposed bill, they
  have to give up their federal civil rights claims. They have to give up any
  claim they can make against any person for violations of their civil rights
  and there are civil rights violations in many of these cases. There are bad
  identification issues, there are equal protection issues, there are issues of
  Brady violations where evidence was withheld such as photographs of tire
  tracks in James Woodard's case that didn't match the suspect and they
  weren't turned over by the police. So there were some,

 Chair:    Do you want to wrap a little bit, we've, we have far
 exceeded the 3 minute.

 Glasheen: I understand. I'll do that. Um, and in in any case the the the
 problem was is that my clients were essentially unwilling to accept the
 state compensation to give up their claims. Uh, we had federal civil rights
 suits pending in Dallas, uh, at least 5 of them, uh, were already in litigation.
 We made an agreement with the City of Dallas that we would, um, abate
 those cases pending this legislative session and the City of Dallas worked
 with us in compromise to come up with a number that our clients would
 accept to resolve these claims. I have a letter from the Mayor of Dallas,
 uh, um, supporting the legislation and urging that it, uh, be passed, uh,
 which, uh.

 Chair:        Great. Thank you for being here. Members, any questions?

 Ellis:        Just, just a quick one.

 Chair:        Senator Ellis.

 Ellis:      You heard Senator Newell follow up on somehow handling
 the counties and cities. Any thoughts on that? Now obviously, I'm

       worried about it gumming up this bill and this latened process as we go
       through it, maybe that can happen.

       Glasheen: Well, I think that the tobacco litigation proved that the state
J      has the authority to pursue, uh, claims that they have deemed fit if it's
       necessary. But most of the munici, most of these are municipal liability
[]     and that's based on a lot of times on counties conduct and we are suing
       under conspiracy theory because you can't sue the county under the 11 th
       amendment. So, essentially the cities are left holding the bag for the
]      conduct that came out of the Dallas District Attomey's office or other
       prosecutorial misconduct around around the state. So, as it is now we
       already have the cities being stuck for what was essentially state actions.
[]     So, I think it would essentially become a round about, circular, um, effort
[J     ?:           What about making it a personal liability? I'm not sure if the
       city or the county or the state should be responsible for anybody
[J     knowingly breaks the law to wrongfully convict somebody.

ri     Glasheen: Well, you know it's very difficult in these cases to establish
U      exactly where to pass all the blame and that's part of the problem with
       the litigation because you have, um, of course the state going to, or the
       cities are going to tum around and say well it's the criminal defense
'.     attorney's fault, the court appointed attorney's fault for maybe, you
       know, meeting his clients the day of trial as happening all,
c ..   Ellis:       How many times were appointed by the court?

J      Glasheen:    Appointed by the court.

       Ellis:       Because the county.
       Glasheen:    And then you've got.

[]     ?;           But but but, you know, I'm been in support of the Innocence
       Project but there were times when it was very clear that an individual
       withheld evidence or did something purposefully to cause this wrongful
]      conviction. So again, I'm not, I promise you I'm not putting this,

[]     Ellis:       We're not.

       ?:           Okay.

     ?:             Bury the sand, but it just kind of, just someone who is suppose
]    to be a steward of the tax payer dollars and I don't disagree with this bill
     that if there is someone that caused this that they ought to be hold
     responsible and,
     Glasheen: Very very few individuals that we've identified are solvent.

o    You know, we find former District Attorney's, we've actually sued sorne of
     the, we sued, uh; court appointed attorney's, we've sued former district,
     uh, assistant district attorney's in this litigation. Most of them are insolvent.
o    We've sued police officers in many cases and, you know, very often your
     police officer would be the one to name as a defendant but without
     somebody in in a government entity indemnifying them, it's, it would be
']   rare to ever find anybody with an ass, any assets worth pursuing.

     Chair:       All right. Well, thank you. Okay. Mr. Heimlich, welcome
[J   back.

o    Heimlich:    Thank you.

     Chair:       state your name again.
[J   Heimlich:     Ed Heimlich, Executive Director of Informed Citizens. I'm also
     an exonerate. Uh, I I very much appreciate the the question that Senator
o    Dole, Dole brought up. Um, having researched this extensively and been
     through the civil rights litigation process. The, our United States Supreme

o    Court has, uh, established absolute immunity for state prosecutors and
     state judges. Um, that means that they, even if their acts are malicious,
     even if they maliciously and intentionally send an innocent person to

o    prison, they have, do not suffer any personal financial consequences.
     They're employing entity which is the state is the entity that has to pay the
     cost for their damage. Uh, also under current statutory law of our state,
iJ   uh, prosecutors and state judges are also basically immune because our
     statutory law indemnifies them for whatever they do as long as it's under
     the cover of them acting within their function. So, either way the state
o    ends up paying. So, it makes sense to void duplicity that just brings the suit
     against the state. Uh, until such time as we do maybe revert to the way it
     was in the beginning of our state when anybody who had a, uh, uh,
]    employment with the state was required to have the equivalent of
     insurance, like our drivers have to have insurance to drive a car so that if

~J   they by their errors or omissions or malfeasance cause harm, the state that
     the public that funds it, the public treasury, is not stuck with the bill. The,
      uh, I've given, uh, some written testimony which specified some
']    objections and suggestions.

                                                                                         ." . - - 03f
      Chair:       Yeah, that's.
      Heimlich:    That I'd like the committee to look at.

[]    Chair:       We like something that is concise and one page and keep
      that up if you come back here.
r]    Heimlich:    Thank you.

Q     Chair:       To testify, did you have something else that you wanted to

[J    Heimlich:     Yeah, I do. I'm very glad that this is before the State Affairs
      Committee. Uh, I think bills that concem wrongful imprisonment should
      be, uh, uh, assigned to the State Affairs Committee or to the
[]    Jurisprudence Committee, uh, because once a person has been
      exonerated, acquitted, there is no longer a conviction, it's no longer a
o     criminal case, my experience has been that the Senate, I mean the the
      committees concemed with criminal matters in the courts have a
      tendency to approach a wrongful imprisonment litigation as if it's a
o     continuation of a criminal prosecution. So even though you are the
      plaintiff, you are treated as if you are still guilty of something.

o     Chair:       Well thank you for being here. Members, any questions? If
      not, thank you again, I appreciate your testimony. Thanks for your time.
,]    Um, is there anyone else that wants to testify on, for or against SB 2014? If
      not the Chair will close public testimony. We will leave the bill, uh,
      Senate Bill 2014 / Companion Bill for House Bill 1736
      Acts 2009, 81 st Legislature, Regular Session
o     Senate Committee on State Affairs
      Public Hearing and Testimony
      April 6, 2009
[]    2:57:45 - 2:58:05

      Chair:        Uh, Chair pulls up SB 2014 by Duncan and Ellis relating to the
fJ    compensation of persons wrongfully imprisoned. Um, I, uh, a committee
      substitute was previously sent up be the Chair. Is there any objections to
]     the adoption of the committee substitute? Chair hears none. It is so
      ordered. Uh, members, SB 2014, Senator Ellis moves that SB 2014 do not
      pass but it's committee substitute in lieu thereof do pass and be printed.
U     The Clerk will call the roll.

                                                                                      h   -   03i
l __ _

         (Clerk calls roll.)
         Chair:       8 ayes and no nays, uh, Senate, uh, the committee substitute
         for SB 2014 will be referred to the full Senate. Senator Ellis, I think we ought
[J       to take that one to the floor.

         House Bill 1736
         Acts 2009, 81 sf Legislature, Regular Session
         Senate Committee on State Affairs
o        Public Hearing and Testimony
         April 30, 2009
         37:19 - 46:00
o        Chair:      Uh, members we have the next bill, will be, um, HB 1736 by

o        Anchia, no I'm sorry. That's right. HB 1736, yea, thank you and I'll
         recognize Senator Ellis to go ahead and lay the bill out.

o        Ellis:         Mr. Chairman, I know we got some resource people here; this
         is the bill that at least comes closer to fairly compensating people who
         have been wrongfully, uh, convicted and have some changes in the
o        substitute that I'll send up at the appropriate time.

o        Chair:

                        Just walk through the differences.

                       Between the two, the substitute provision allowing claimants

o        to gain access to TRS benefits program, the health insurance, uh, we
         striked that one because claim is denied, actually state employees
         allowing access, uh, creates procedural concems and at this point we are
[J       striking the provision allowing claimants to receive free college tuition. We
         may have a visit with the management in of the, or change the direction
         on that, we'll try to do it. if not we will, we will strike it. We add portions of
[J       Senator West's SB 1448 to require TDCJ to develop a plan for the
         successful reentry and reintegration of wrongfully imprisoned persons. Uh,
         current reentry and reintegration requirements exclude wrongfully
J        convicted. The plan must include life skills, job al"ld vocational training,
         assistance in obtaining ID card and financial assistant aid in living
         expenses of $10,000.00 deducted from the statutory compensation to be
]        administered by, uh, TCOOMI. This provision will also require TCOOMI to
         develop a plan uh, to address medical and dental services for wrongfully
!J       imprisoned persons. And, Mr. Chairman, I I I want to appreciate all your
         work on this and I can't say enough of how proud I am to serve as your, as
          one of your co-sponsors, uh, on this bill. I know there are a number of
[1       resource people here. Obviously, the House did pass a very strong bill.
          We want to do as much as we can but we are cognizant of making sure

we have the 21 votes to pass the bill. So, any changes we're making for
anyone else that may be watching this, uh, look at the tape later, it's not
because it's something that Senator Rodney Duncan or Rodney Ellis want
to change. Uh, we, uh, in the initial bill asked for what we wanted but we
are going to take as much as we are able to pass through this Chamber.

Chair:       And I think, initially, we have passed almost an identical bill
but, uh, out of the committee, uh, earlier in the Session, is that correct?

Ellis:       That is correct.

Chair:        And so, uh, and I appreciate it. I've enjoyed working with
you on all these issues. All all the way back to DNA and, uh, the legal
services issues and all these sorts of things, I think the Senate and the
House have done a good job over the years of trying to address these
problems. I think this bill is, I think it has a lot of support. I think we do have
to deal with those 2 issues. I think that it really, the 2 issues with regard to
the, uh, uh, tuition and the fee exemptions and the health insurance,
those are the two issues that are different. Is that?

Ellis:        That's right. We have Senator West's permission which is a
separate bill but that's a good thing, I mean I know it's the Innocence
Project, some of our lawyers who helped get people out get really
emotionaily drained because they get a bus ticket when they are
released and that's it. Sometimes it takes the wheels of justice a while to
work things out and in those states where people can sue; it's a different
deal. Part of what's driving this legislation, obviously, is to keep some of
our local municipal govemment from being sued and I don't know, as we
go through this process this session or even on future sessions, these 2 big
items that I am reluctant to take out but I want to get a bill passed. Uh,
the health provisions, uh, and also the educational part. I'm still hopeful
we might work out something on the education part.

Chair:        One idea and and there is the risk pool, where we, we heard
a bill that Senator Averitt's working on on the risk pool. The risk pool is a, is
certainly an option and the question is; how do you access that the, with
these, uh, person's. So, we'll continue to work on those issues and.

Ellis:         We might. Mr. Chairman, I think that even if it; we don't want
to hurt its success if it ends up in conference. Even in a separate bill, we
could even give a county that, uh, that a wrongful conviction came from.
I don't know if we could on their own but we could give them (witness
making??) power but they could link these wrongfully convicted
individuals going to their county health care program. There are a

     number of ways to do this. Years ago, I didn't want to hurt the bill that
o    you and I passed some time ago and erase it from we were trying to go
     from 25 period to 25 a year. I think it had been Senator West that had a

o    bill that required a county of a wrongful conviction to reimburse the state.
     And I was afraid the counties would fight the bill and the thought is we
     could try and find some vehicle, this one or some other one to give the

o    county of the wrongful conviction, Harris, Dallas or wherever, where the
     County Commissioners could vote to let these people who have been
     wrongfully convicted into their,
     Chair:      Let's explore all ideas and see what we can come up with.
o    Appreciate the effort on that. We do have a witness, uh, on this, if there
     are no questions. Mr. Heimlich. Welcome back. You know the rules.

o    Heimlich:     Yes, thank you, Senator. Um, I've also submitted written
     testimony. The, uh, one thing that, uh, I think needs to be changed is

o    Section, 103.00 1A to E, uh, should be amended to remove the phrase
     actual innocence. And I've suggested that if be replaced without
     tainted post conviction acquittal or a finding of not guilty. And, uh, I'd be
o    happy to answer any questions you have. Uh, One comment I would
     make on just that our Texas Constitution, Section 4 or Article 5 submits the,

o    um, I'm sorry, Section 5 of, uh, Article 5 says the Court of Criminal Appeals
     say it's determination shall be final in all criminal cases of whatever grade.
     And we've sort of had a situation where, um, under the statute as the

o    term is, with that phrase actual innocence, the Attomey General has used
     that, um, to, um, imply that the people of Texas are inherently guilty. Um,
     there's no such thing as innocence, period. And that, uh, whatever the
     Court of Criminal Appeals says or even the Supreme Court says doesn't
[J   matter, um, so I think it's going to take the state unnecessary litigation
     expense. Uh, if we just clarify that that one line there to, uh, a tainted post
J    conviction acquittal or a not guilty finding because, uh, relief on the basis
     on actual innocence; that's not a phrase that's always used but that
     doesn't mean that that was not the substance of the relief. The relief,
!]   there's 110 relief from conviction unless it is on the basis of actual
     innocence, urn, in a, in a state where the rule of law prevails.

]    Chair:        Any questions? Thank you very much. We've got your written
     testimony too. We will put it in the record. We appreciate your input on
]    the bill. Thank you, Mr. Heimlich. All right, is there anyone else who would
     wish to testify for, against or on, uh, HB 1736 or the, we don't have
     anything on it yet, okay, on HB, uh, 1736? All right, well, the Chair hears
o    none. The, um, public testimony is closed. Uh, the bill be left pending.
     Thank you.

n        House Bill 1736
         Acts 2009,81 51 Legislature, Regular Session
         Senate Committee on State Affairs
tJ       Public Hearing and Testimony
         May 4, 2009

o        1:11:15-1:16:18

         Chair:        Chair pulls up HB 1736 by Anchia. The Senate sponsor is
         Duncan. Uh, Senator Ellis has previously offered a committee substitute
         and members in that substitute we, uh, I think, um, uh, amended the bill
         by taking out,uh, entitlement to health insurance through ERS and also
         tuition, the exempfions. I think Senator Ellis and I are working on the seeing

o        the exemption language and we're going to ask our, I would ask that we
         move this bill to the floor and we will try to work through that issue as we
         get down to the floor.
,J       ?:            1736.

         Ellis:        Is this the compensation for wrongful conviction?

         Chair:        This is the, uh, compensation for wrongfully convicted
J        individuals. And what we are doing is raising that from $25,000.00 to
         $50,000.00, I mean, 50 to 80.

J        Ellis:        50 to 80.

         Chair:        It does have the posthumous language. And, um,
         (Inaudible question)

J          Chair:      Well, that's the issue, is that if a wrongfully convicted person,
           um, then that person is deceased; that would be the Tim Cole case, well
         . then the families,

!]       Ellis:        So the family estate would get it.

         Chair:        The beneficiaries would get, be able to receive that, um,
i. ..J

         ?:            Is there any, anything in state law that corrects, corrects this
lJ       to not, into to investigate the wrongful, uh, conviction of a person
         whereby the DA or whoever knowing they knew that person might not

                                                                                           I. -   041
         have been guilty and still pursued that? For whatever reason? Is there
. I      something like that?

         Chair:         That op, that option would still be available. What um, bring
~        that in a civil lawsuit? But if you bring a civil lawsuit you waive your right to
         the state benefits.

[1       ?:           That would be civil.

Y        Chair:
                      That that's one of the trade offs in this bill but it our cities and,

:l       ?:
         you know.
                      I don't doubt that there, there could be for whatever reason,

.   '.
.~)      ?:           Does the estate and then probate it or what?

o        Chair:        No, it WOUld, it would go to the the beneficiaries or basically
         its spelled out in the bill and it would be,

         ?:            It could be a spouse?

         Ellis:       Could be a spouse as a will.

         Chair:       The beneficiary.
lJ       ?:            Parents?

         ?:            I mean, how how is it determined, how, you know, is there a
[J       priority there, we assume parents or adult?

]        Chair:         This, the language in the, in the bill if you will look on the
         section on the bill and I'll just read it so if you don't have it in front of you.
         If a deceased person with the entitled compensation under subsection a2
]        if living including a person who receives a posthumous pardon, the
         persons heirs, legal representatives, uh, and estate are entitled to a lump

iJ       sum com pen, a lump sum compensation under 103.052. So, if the person
         is dead, then it would go, it would distribute to the heirs' legal
         representatives and estate as they would be entitled, uh, to, if there, if

         there is a an estate; it would go to the estate and be distributed
          according to that.

]        ?:         If they didn't have a will. Would it just be like somebody who
         died and didn't have a will?

•.    -],   Chair:        Contest to see, would determine how that would,

            ?:          Who worked it out with this, with the lawyer representing the
            Cole family? So, we

            Chair:        Plus, it's pretty much similar to what we do in in civil practices.

            ?:            Survivor statute?

            Chair:       All right, members, are there any other questions? Um, we
            passed this bill out of this this committee earlier, um, this is an identical bill
            to that other than, um, we have taken out, uh, the ERS provision and the
            tuition and fee exemption. Um, Senator Ellis moves that HB 1736 do not
            pass but that the committee substitute in lieu thereof do pass and be
            printed. Clerk will call the roll.

            Clerk calls roll.

            Chair:        There being 8 ayes and no nays, the, uh, committee
            SUbstitute to HB 1736 be referred to the full Senate with the
            recommendation that it do pass and be printed.

            House Bill 1736
            Acts 2009,81 st Legislature, Regular Session

     o      Senate Floor Debate
            2nd Reading
            May 8, 2009
     I]     3:05:40 - 3:19:29

            Speaker:    Senator Duncan is recognized for a motion, to suspend the
            regular order of business on sb, House Bill 1736.
            Duncan:      Thank you, Mr. President and members. This is what we call
      ]     the Tim Cole Act. You'll remember that Tim Cole was on the Senate, or his
            family was on the Senate Floor. Tim Cole was convicted of rape in
            Lubbock, Texas. Uh, and died in prison as a result of that conviction. Uh,
        1   posthumously we, it was determined that he was innocent of that crime
            and you'll recall, Timo, Tim Cole was a veteran. Uh, was a college student
            on his way to success. He died in prison of an asthma problem, uh, never
      [J    to find out that he was actually later to be declared innocent of the
            crime. Uh, this bill, uh, changes a little bit of some of the things that we've
      'J    done with regard to compensation for those wrongfully convicted. Um, it
            increases the lump sum compensation for all exonerees from $50,000.00 to

      $80,000.00 per year, uh, including time spent in city or county jail because
      of a current, the current compensation only, uh, applies to the TDCJ time.
      It allows lump sum compensation to pass to the family in the event an
      innocent person dies before released as TImothy Cole did. It creates a
      lifetime annuity payments up to the exoneree based on the present value
      of the lump sum compensation, amortizing it at a 5% rate. And as under
      current law, um, a person who receives subsequent failed due to
      conviction loses their eligibility for compensation. Any annuity payment
      would cease. In other words, if their, if their, uh, if they commit a crime
      after their release and that compensation would cease. Uh, there are
      about 38 exonerees in Texas. You'll recall that is a result of some of the
      things we did with regard to our DNA laws. We changed several years
      ago to allow process for, uh, going back in, uh, post conviction and
      determining innocence based on DNA evidence. The 38 exonerees,
      there are approximately 14 persons known to have claims that could be
      filed for compensation under this bill. Uh, the, uh, fiscal note on this is
      about $680,000.00 a year. Uh, members, I'd say that, uh, for those who
      have been wrongfully, uh, incarcerated in our system, that's a small, uh,
     .amount for us to pay to be able to, uh, help those people get on with
      their lives. There used to be a provision in this bill earlier that added ERS
      benefits, that is not in this bill. We decided that would be a a not a good
      precedenl to go into our ERS system and allow person's who are not
      employees to receive that comp, tha that benefit. Um, there will be an
      amendment that, uh, Senator Ellis will carry that will allow, uh, tutu ion and
      fee exemptions, uh, if the persons pursue a college degree within 5 years.
      So, uh, with that explanation; I'll be happy to answer any questions.
       Otherwise I would move to suspend the Senate's regular order of business
      to take up and consider HB 1736.

     Speaker;     Senator Hinojosa. For what purpose do you rise?

[J   Hinojosa:
                Will the gentleman yield for a couple of comments or

[]   Duncan:       I will yield.

     Hinojosa:     You know, uh, Senator Duncan, you know, you're an attomey
]    and I'm an attorney and and, uh, we are both a little work, and I know it's
     uh, I do a lot of criminal defense work, uh, many tax people don't realize
     that our criminal justice system, uh, is not perfect. Uh, and tragedies do
     occur. Uh, convicted of wrongful, uh, wrongfully, uh, a person who is
     innocent, uh, and a little work towards signs of a better system, uh, it will
     never be perfect but willing to work and continue to make changes in the
     law as we see different problems and address them and focus on them,
     uh, but the very least that we can do, uh, where we as a state failed, uh,
'J   and convicted an innocent person, uh, the way to compensate, the
     person once we discover that that person is innocent and in this case it's
     such a tragedy. Uh, that the gentleman passed away going to prison. Uh,
']   and I don't think that any amount of money could ever make up what
     the, but the efforts to bring at least some type of closure, uh, to this type of
']   situation to his family.

     Duncan:       Thank you, Senator, and I, you know, I want everyone to
d    recall, you were actually the House sponsor of Senator Ellis' and my DNA
     bill when it came over and, you know, I think of all of the bills that I have
     passed, you and I have passed over the years, uh, this one really has
]    made a significant difference and when we talk about compensating
     these people its what what is the value of liberty, uh, that we have
     deprived these people of, uh, by, uh, a wrongful conviction. Uh, not only
:]   to time in prison but also the loss of dignity that goes with that. Another
     benefit to this bill is the fact that. uh, if a, uh, this is a benefit to our local
o    units of govemment as well because they are subject to lawsuits under
     the federal civil rights act, uh, in these kinds of cases where immunity does
     not apply to the cities and counties and this is something that. uh, uh, this
J    is an altemative to those lawsuits. And, uh, I think this is probably a very
     helpful provision for our local units of govemment. Senator West has a a
     provision in here that we have gotten the House to put on as well that. uh,
!J   provides for. uh, process to assist these people, uh, when they are
     released to be able to get back into, uh, the, uh, mainstream of life. So, I
     think a pretty comprehensive bill and I appreciate your help on this as

     Hinojosa:    Well, I must you that. uh, whenever we convict an innocent
     man, uh, or an innocent person, you know, people deserve
     compensation within the criminal justice system. Uh, and one of the, uh, I
     guess, uh, proudest moments of of my career in the legislature was when I
     passed the DNA legislation and it freed a lot of people who were
     wrongfully convicted. Thank you very much.

     Duncan:       Thank you, Senator.

     Speaker:      Senator Duncan has moved suspension of the regular order
     of business to take up and consider HB 1736. Is there objection? Hearing
     none, the rules are suspended. The Chair lays out on 2nd reading, House
     Bill 1736. The Secretary will read the caption.

     Secretary: CSHB 1736 relating to compensation and services to persons
     wrongfully imprisoned.

                                                                                           ,. to -
:]     Speaker: Floor Amendment #1 by Ellis. The Secretary will read the

]      Secretary:    Floor Amendment # 1 by Ellis .

       Speaker:      Senator Ellis to explain the amendment.
•. J
         Ellis:         Thank you, uh, Mr. President. Right before I explain the
;]       amendment, I do want to, uh, also praise, uh, Chairman Duncan for
         carrying this bill. When we opened this session up, Senator Ivans wanted a
         second to, uh, the nomination to make him President pro temp. I made
']       reference to that, uh, DNA bill and, uh, that was an important bill and this
         is an important bill and although it may not have the fanfare of the

J        budget and a lot of other things that we have passed. It really is one of
         the most important bills that you have worked on. Uh, I was in New York
         earlier this week, at an Innocence Project, uh, gala. And we had maybe

J        about 30 or 40 exonerees from around the country and I want to stress this
         is not just a Texas problem, it's a national problem. We only had one, uh,
       . family member of an exoneree, uh, from Texas there. We, uh, had your
lJ       constituent, Tim Cole's brother, there, Cory Session and he did the, uh, the
          last speech, uh, on behalf the exonerees there, a really good job, a a a
         tremendous appeal, uh, in addition to, uh, the 38 that you mentioned, we
[J        really have about our 391hexoneralion now in Texas, which sets ihe record
         for the country, this one out of Harris County. And in addition to this bill,
          members, there are things that will continue to improve in defense,
J         eyewitness ID procedures, recordings and interrogations, uh,because the
          worst thing that happens when someone is wrongfully convicted in
          addition to that person's life and family members lives being, uh,
          disrupted, would be the fact that somebody feels empowered because a
          guilty person gets off and it must feel truly empowered because they can
          commit other crimes and think at least they are covered on that one. Uh,
          so Senator, I just want to just the time, take this time to praise, you for this
          bill. Uh, and say how proud I am of you for doing it. The amendment that
[]        I have, members, um, will add up to 120 hours of tuition payments and
          fees for persons wrongfully convicted in Texas who makes a, uh,
          compensation claim under this legislation. College education was
 J        included as you mentioned in the House bill, we took it out in committee.
          We met with the leadership, uh, and Chairman Ogden and they have
r]        agreed that we ought to put it in. There is one person on the Floor, uh,
          that I also want to recognize, Anthony Robinson, helped us go and check
           this from 25,000 period when someone was wrongfully convicted to 25 a
U         year, last session we moved it to 50 and 100,000 if someone was on death
           row, the wrong person. Uh, Anthony is the kind of person that could

      benefit from this. He won't because he already has his education. Um,
      but, uh, back in those days when he was wrongfully convicted, you could
      get a college degree in prison. Something we ought to consider, uh,
      even if somebody is guilty, he was innocent, but he got his Master's
      Degree from the University of Houston, Clear Lake, on site when he was in
      prison for a decade for rape he didn't commit. When he got out and
      helped pass that bill, some of us, Senator West. put money up, uh,
      Chairman Whitmire, and we raised money, uh, I guess Joe Jamail wrote
      the biggest check to pay for him to go to law school and take the prep
      class, LSAT class. He graduated from Thurgood Marshall's Law School and
      then went to China to get a Master's Degree in LLM from Chingwow
      University in China. He is working on his PhD this session. He is on the floor
      because he is in the Texas Legislative Intemship program, but Anthony, in
      addition to Tim Cole, this this this bill, we won't have your name on it, uh,
      but your work over here says, uh, has helped a lot. Uh, members, I'd be
      more than happy to answer any questions, uh, and I think the
      amendment might be, uh, is acceptable to the author.

      Speaker:    Senator Duncan? Is the amendment acceptable to the
      author? Members, Senator Ellis moves adoption of Floor Amendment # 1
      which is acceptable to the author, Duncan. Is there objection? Hearing
      none, Floor Amendment #1 is adopted. Thank you, Senator Ellis. Floor
      Amendment #2 by Duncan. The Secretary will read the amendment.
      Secretary:   Floor Amendment #2 by Duncan.

~     Speaker:     Senator Duncan to explain the amendment ..

]     Duncan:      This is the famous Ogden Amendment.

      Speaker: acceptable to the author?
L     Duncan:      It's acceptable to the author.

      Speaker:    Senator, Senator Duncan moves the adoption of Floor
      Amendment #2. Is there objection? Hearing none. Floor Amendment #2
      is adopted. Senator Duncan is now recognized for a motion.
      Duncan:      I move passage to engrossment.

o     Speaker:      Senator Duncan moves passage to 3rd reading of HB 1736. Is
      there objection? Hearing none, HB 1736 is passed to 3rd reading. Senator
oJ    Ellis for what purpose do you rise?

      Ellis:          Just to, uh, make a quick point while our colleagues are
:1    deliberating there. Senator, Chairman Duncan mentioned that we took
      out the, uh, health care provision, uh, that was in on the House side. I do
      want to stress that we, uh, took it out because we did not want to set a
]     precedent but it does not mean that we don't think that they ought to be
      compensated for health care. Many of them ended upwith health, uh,

l     problems related to being incarcerated. And and I am going to look for a
      vehicle throughout the rest of this session to maybe give the counties or,
      uh, the local units of government, the police department, uh, that had
H     something to do with thewrongful conviction the ability. We could opt to
      give counties the option if they wanted to, uh, to put them in their health
      care system because it does seem, uh, unfair to me that if someone was
r]    in prison 10,20, we have some that have been wrongfully convicted and
      in prison in Texas, uh, for up to 30 years and, uh, then have health care
      issues that they have got to try and address for the rest of their lives, uh, I
J     hope that we will be able to do that. Uh, I don't want to talk any longer
      than I have to, I think I might ask if we just, uh, take a little, 5 minutes
[]    break, uh, while these 2 are visiting on the matter so that maybe we can
      pull this bill forward. If that's alright, Mr. President. Or I could try singing if
      you ali want me to.
o     Speaker:      Senator Ellis moves to,

o     Ellis:        5 minutes.

      Speaker:      Senator Duncan. We will come back to you shortly.
J     The Senate Floor moves on and HB 1736 was not brought up on the floor
]     again until 3rd reading and final passage .

      .House Bill 1736
]      Acts 2009, 81 51 Legislature, Regular Session
       Senate Floor Debate
       3rd Reading
lJ     May 11,2009
       43:24 - 48:36

'.J   Speaker:    Senator Duncan. The Chair recognizes Senator Duncan for a
      motion to reconsider the vote by which CSHB 1736 passed to 3rd reading.

U     Duncan:       Thank you, Mr. President, members. Members, this is the, uh,
      we call it the Tim Cole Act, this is the act that changes the compensation
'1    for those who have been wrongfully convicted. You'll recall several years
      ago, we passed legislation that provides a compensation package for

     those person's who are exonerated from crimes because of the DNA
C]   evidence. This bill as we discussed on Friday, uh, expands the
     compensation concept. Uh, we put on, uh, an amendment that, uh, is

;l   the so called Ogden Amendment but because this is made from an
     estimated appropriation, uh, that is from an account over in the
     Controller's office in the claims division, then, uh, we, uh, the Ogden
:J   amendment is not necessary. So the reason we held up was to determine
     whether or not we actually needed the Ogden Amendment. You'll recall
     the Ogden Amendment is the. one that says that the bill does not enact
~]   unless there is an appropriation that goes along with it. So, at least, uh, or
     at least does not, uh, implement unless the appropriation is present, so,
     with that explanation, I would move to reconsider the vote by which we,
11   uh, passed, uh, Committee Substitute for HB 1736 to engrossment.

     Speaker:    Members, you've heard the motion by Senator Duncan. Is
]    there objection to the motion to reconsider? The Chair hears no
     objection and the motion is adopted. Chair recognizes Senator Duncan

o    for a motion to reconsider the vote by Floor Amendment #2 was

o    Duncan:  Members, I move to reconsider the vote by which Floor
     Amendment #2 was adopted. That's the Ogden Amendment.

[J   Speaker:       Members, you've heard the motion by Senator Duncan. Is
     there objection from any member? Chair hears none. And the Secretary

o    will call the roll.

     Secretary calls roll.
]    Speaker:    Members, there 30 ayes and 1 nay. The motion is adopted.
     Chair recognizes Senator Duncan for a motion to move, excuse me, for a
]    motion.

     Duncan:       Thank you, I move passage to engrossment.
     Speaker:    The Chair recognizes Senator Duncan for a motion to
     withdraw Floor Amendment #2.
U    Duncan:  Uh, uh, thank you, Mr. President. I move to withdraw Floor

iJ   Amendment #2.

     Speaker:     Members, you've heard the motion by Senator Duncan. Is
,]   there objection from any member? Chair hears no objection. The Floor

                                                                                      "   -
      Amendment #2 is withdrawn. The Chair recognizes Senator Duncan for a
[]    motion, uh, or passage to 3rd reading, CSHB 1736 as amended.

      Duncan:   Thank you, Mr. President. I move passage to 3rd reading, the
]     Committee Substitute for HB 1736.

      Speaker:    Members, you've heard the motion by by Senator Duncan. Is
[]    there objection from any member? The Secretary will call the roll.

o     Secretary calls roll.

      Speaker:    There being 27 ayes, uh Senator Ellis, did you wish to speak?
[]    There being 27 ayes and 4 nays; the Committee Substitute to House Bill
      1736 as amended passes to 3rd reading. The Chair recognizes Senator
      Duncan for a motion to suspend the constitutional rule that bills be read
      on 3 several days.

o     Duncan:

                    Thank you, Mr. President. I so move.

                   Members, you've heard the motion by Senator Duncan. The
]     Secretary will call the roll.

o     Secretary calls roll.

      Speaker:    There being 27 ayes and 4 nays the rule is suspended. The
      Chair lays out on 3rd reading and final passage, Committee Substitute to
J     HB 1736 as amended. The Secretary will read the caption.

iJ    Secretary: CSHB 1736 relating to compensation of and services to
      persons wrongfully imprisoned.

[J    Duncan:       I move.

      Speaker:    Senator Ellis, for what purpose do you rise? The Chair
]     recognizes Senator Duncan for a motion.

      Duncan:       I move final passage.
      Speaker:     Members, you've heard the motion by Senator Duncan. The

o     Secretary will call the roll.

      (Secretary calls roiL)
     Speaker:     There being 27 ayes and 4 nays, the Committee Substitute to
o    House Bill 1736 as amended is finally passed. Senator Ellis for what

lJ   Ellis:         I'd like to be recognized for an introduction.

     Speaker:       You are recognized.
     Ellis:         Uh, I do want to thank Senator Duncan for his fine work on this -
W    bill and his staff and also, Mr. President, Tim Cole's family is in attendance
     in the Gallery today and they put a lot of work into this bill and I just uh, it
     helps them to, uh, clear the name of their loved one. Uh, but also a lot of
[l   others; there's Ruby Session, Tim Cole's mofher, uh, his brother Cory
     Session, uh, Kevin Canard, uh, his brother, Christy Session, his sister in-law,
]    Sarah Session, Hailey Session, Cory Session, Jr., Lauren Session, Channel
     Session, Tim's nieces and nephews, also Bessie Burks, a cousin and Everin,
     Everett Abrow. Mr. President, if you would make us please stand, I'd like
J    for the members to recognize them on this historic day.

     The Senate Research Analysis dated May 5, 2009 based on the substituted
     bill states:

J              There have been approximately 40 people in Texas exonerated
                for crimes they did not commit. Together, these individuals

fl              served a total of 500 years in prison. Currently, Texas law
                allows those individuals to be compensated $50,000 per year
                for each year the person spent in prison. However,
lJ            - according to the Innocence Project, of those who were
                exonerated after being wrongfully convicted, "most .. .leave
                prison without immediate financial support; it can take
]               months or years before restitution is forthcoming, and
                some exonerees are never compensated." Those who do
                receive some financial compensation for their wrongful
                convictions are left to live on a small amount of their
                compensation money after incurring various expenses due
~J              to the often extended legal proceedings required to prove
                their innocence.

U              C.S.H.B. 1736 amends current law relating to compensation
               of and services to persons wrongfully imprisoned.

-J                                                                                      051
      See also the House Research Organization Bill Analysis dated April 24, 2009
      and the House Committee Report.

o     Complete copies of these analyses are being forwarded. The house
      Research Organization bill Analysis is not an official document but it has
      been held persuasive on legislative intent. Wilson v. Galveston County
[J    Central Appraisal District, 713 S.W, 2d 98, 100-101 (Tex. 1986); Owens
      Corning v. Carter 997, S.W. 2df 560, 580 (Tex. 1999). Certified copies of the
      audiotapes, CDs and House and Senate bill analyses are admissible as
o     public records.

      Certified copies of the audiotapes/CDs and bill analyses are available if
o     you need them.

      This completes our research. If you have any questions please call.
      Thank you for doing business with us as it is our pleasure to do business with
r ]


                                             BILL ANALYSIS

     Senate Research Center                                                                 ':.S.H.B. 1736
     81R29353 AJA-D                                                           By: Anchia   4t aI. (Duncan)
o                                                                                             State AffiUrs
                                                                         Committee Report (Substituted)


     There have been approximarely 40 people in Texas exoneraled for crimes they did not commit

o    Together, these individuals served a total of 500 years in prison. Currently, Texas law allows
     those individuals to be compensated $50,000 per year for each year the person Sf,ent in prison.
     However~ according to the Innocence Project, of those who were exonerate;!: after being
r,   wrongfully convicted, "most.. .leave prison without immediate financial suppo~r; it can take
     months or years before restitution is forthcoming. and some exonerees are never compensated."
iJ   Those who do receive some financial compensation for their wrongful convictions ~ left to live
     on a small amount of their compensation money after incurring various expenses dw..e to the often

o    extended legal proceedings required to prove their innocence.                    '

     C.S.H.B. 1736 .aroends current law relatlog to compensation of and servi'* to persons
     wrongfully imprisoned.                                                  "i


     This bill does not expressly grant any additional ruleroaking authority to a istate officer,
     institution, or agency.


     SECTION 1. Requires that this Act be known as the Tim Cole Act

     SECTION 2. Amends Section 103.001, Civil Practice and Remedies Codb, by adding
     Subsection (c), to entitle the person's heirs, legal representatives, and estate, if a deJ;;eased person
     would be entitled to compensation under Subsection (a)(2) (relatlog to the reql,iirements for

o    entitlement to compensation) ifliving, including a person who received a posthumqus pardon, to
     Imnp-smn compensation under Section 103.052 (Amount and Timing of Compensa',ion).

     SECTION 3. Ameods Section 103.003, Civil Practice and Remedies Code, to re&mre a person

o    seeking compensation under this chapter, not later than the third anniversary o~:the dale the
     person on whose imprisonment the claim is based received the pardon or was imnted relief:
     rather than found not guilty, as required by Section 103.001 (Claimants\, Entitled to
     Compensation), to file an application with the comptroller of public accounts (co;;iIptroller) for

o    compensation under Subchapter B (Administrative Heatiog). Deletes existing ~1 requiring a
     person seeking compensation under this chapter to file suit against the state for ¢~mpensa1ion
     under Subchapter C (Filing Suit) not later than the third anniversary of the doc;" the person
     received the pardon or was found not guilty. Makes nonsubstantive changes.         .

      SECTION 4. Reenacts Section 103.051(a), Civil Practice and Remedies Code, as.aroended by
      Chapters 1190 (liB. 814) and 1388 (S.B. 1719), Acts of the 80th Legislature, Regular Session,
      2007, 2nd aroonds it to require the claimant, to apply for compensation under this .;obchapter, to
      file with the comptroller of public accounts' (comptroller) judiciary section certahi: information
      includiog a statement provided by the Texas Deparlment of Criminal Justice (mcI) and any
      county or municipality that incarcerated the person on whose imprisonment the claiZp. is based in
      connection \vith the relevant sentence verifying the length of incarceration; if ~pplicable, a
]     stateroent from the Deparlment of Public Safety of the State of Texas (DE'S) verifying
      registration as a sex offender and length of registration; and if applicable, a statemerit from mCJ
      verifying the length of time spent on parole. Makes nonsubstantive changes.             •

      SRC-HDA, KRK C.S.liB. 1736 81(R)                                                              Page 1 of4

o    SECTION 5. Amends Section 103.052, Civil Practice and Remedies Code, as fol!l,ws:

o           Sec. 103.052. New headlng: LUMP-SUM COMPENSATION. Ca) Enljities a person
            who meets the requirements of Section 103.001 to compensation in an ari:ount equal to
            $80,000, mther thoo $50,000, multiplied by the nllIDber of years serv~d in prison,

o           expressed as a fraction to reflect partial years, and compensation for ;,Irlld snpport
            payments owed by the person on whose imprisonment the claim is based thct became due
            and interest on child support arrearages that accrued during the time served',in prison but
            were not paid. Deletes existing Subsection Ca-l), entitling a person sente'3ced to death

o           who meets the requirements of Section 103.001, notwithstandlng Sub~ection (a)(l)
            (relating to a person entitled to compensation of $80,000 multiplied by 1").e nllIDber of
            years served in prison, expressed as a fraction to reflect partial years), to compensation in
            00 amount equal to $100,000 multiplied by the number of years servf'4 in prison,
            expressed as a fraction to reflect partial years.                               .,

                    (b) Entities a person who, after serving a sentence in a Texas prison for which the
                   person is entitled to compensation under Subsection (a)(I) (relatinjl to a person
                   entitied to compensation of$80,000 multiplied by the number ofy(:<rrs served in
                    prison, expressed as a fraction to reflect partial years), was release4:on parole or
                    required to register as a sex offender under Chapter 62 (Sex Offendcl'Registration
                    Program), Code of Crintina1 Procedure, to compensation in an am\lunt equal to

o                   $25,000 multiplied by the ntimber of years served either on p~~ole- or as a
                    registered sex offender, expressed as a fraction to reflect partial y~. Deletes
                    existing text requiring a person who is owed an amount of compe$.Sation under
                    Subsection (a)(l) or (a-I) equal to or greater thaIi $50,000 to 1pe paid that

o                   compensation in two equal annual installments.'                      ;

                    (c) Redesignates Subsection (d) as Subsection (c). Deletes extiing text of

                    Subsection (c) requiring that, if requested by the claimant, the Texa); Department
                    of Mental Health and Mental Retardation provide appropriate COUD!~Iing for one
                    year to the claimant at a mutually agreed-on location at no charge to:tbe claimant.
                    Makes nonsubstantive changes.                                         ~.

     SECTION 6. Amends Subchapter B,Chapter 103, Civil Practice and Remedies Co'de, byaddlng
     Section 103.053, as follows:                                               '

             Sec. 103.053. ANNUITY COMPENSATION. (a) Entitles a perso~ entitled to
             compensation under Section 103.001(a) (relating to therequirements for ~.ntitlement to
             compensation) to annuity payments, based on a present value sum equal to we amount to
             wIrlch the person is entitled under Sections 103.052(a)(I) and ( b ) . '

o                   (b) Provides that the annui1:y payments onder this section are pai"])le in equal
                    monthly installments for the life of the claimant and are required to tje based on a
                    five percent per annmn interest rate and other actuarial factor$. within the
                    discretion ofthe comptroller.                                         i

J                   (c) Prohibits the annnity payments from being accelerated, deferred,iincreased, or
                    decreased. Prohibits the applicant from selling, mortgaging, 'or otherwise
                    encumbering, or anticipating the payments, wholly or partly, by alssigrunent or
                    otherwise.                                                              .'

     SECTION 7. Amends Section 103.151, Civil Prectice and Remedies Code, as follo\"s:

'J           Sec. 103.151. ADMINISTRATIVE PAYMENT OF COMPENSATION. ita) Requires
             the comptroller to make the compensation, rather than first instalhneut pa~'Dlent, due a
U            claimant under Section 103.052, rather than due an applicmrt, and the lllIDp'~um payment,
             if any, to be paid to the _e disbursement unit, as defined by Section 101:.0302 (State
             Disbursement Unit), Family Code, under Subchapter B, to the extent til!'! funds are
             available and appropriated for that pnrpose, not later than the 30th day    after
                                                                                           the dete the
             comptroller grants the application. Requires that a claim for lump-sum eompensation

      SRC-HDA, KRK C.S.!ill. 1736 81(R)                                                          Page 2 of4

             payable UD'der Section 103.052(0) or (b) survive the death of the claimant in favor of the
             heirs, legaI.irepresenta'tives. and estate of the claimant.

                     (bJi Requires the comptroller to begin making annuity payments to a claimant
                     under Section 103.053(a) on the :first anniversary of the date of payment of the
                     cO';'lpensation due under Section 103.052, rather than pay the amount of the
[]                   secbnd instaIbnent payment on the :first anniversary of the date of the :first

                     (cJi Requires that the money, if appropriated funds are insufficient to pay the
                     am0nnt due a claimant., rather than an applicant., and the amount to be paid to the
[l                   stato disbursement unit., as defined by Section 101.0302, Family Code, be paid
                     onder the procedure described by Section 103.152.
:l    SECTION 8. Aiilends Section 103.152(a), Civil Pra..'1:ice and Remedies Code, to reqoire the
LJ    comptroller, not ;~ater tha."l November 1 of each even-numbered year~ to provide a list of
      claimants entitled\ to payment under Subchapter B, rather than Subchapter B or C, and the
      amounts due for :~:ach claimant to the governor, the lieutenant governor, and the chair of the
      appropriate conun\ttee in each house of the legislature so that the legislature may appropriate the
      amount needed tri!pay the amount owed to each clabnant and the amount to be paid to the state
      disbursement unit,las defined by Section 101.0302, Family Code, on the claimanfs behalf.

      SECTION 9. Mends Section 103.154(b), Civil Practice and Remedies Code, to provide that
      annuity paymen~ito a person under Section 103.151(b) temilnate on the date of the person's
      death. Deletes "'.{;sting text providing that., exeept as provided by Subsection (c) (relating to
      payments not qut,ufying to compensation for child support payments and interest on child
      support arrearage~to paid on a person's behalf), compensation payments to a person under this
      chapter tenninate:(lfi the date of the person's death.

      SECTION 10. })mends Subchapter C, Chapter 501, Govermnent Code, by adding Section
]     501.091, as follows:

              lMPRlS01\lED PERSONS. (a) Defines "wrongfully imprisoned person."
1]                    (b},Requires IDCJ to develop a comprehensive plan to ensure the successful
                      reefftry and reintegration of wrongfully imprisoned persons into the community

o                     folJl>wing discharge from IDCJ. Requires that the reentry and reintegration plan
                      deY~loped under this section include:

                               (I) life-skills, job, and vocational training for a wrongfu1ly imprisoned

                               person following discharge, for as long as those services are beneficial to
                               the person;

                               (2) a requirement that IDCJ provide, before a wrongfu1ly imprisoned
                               person is discharged from IDCJ, the person with any documents that are
;]                             necessary after discharge, including a state identification card; and

                               (3) the provision of financial assistance to aid a wrongfu1ly imprisoned
                               person in the reentry and reintegration process and in covering living
                               expenses following discharge, in an amount not to exceed $10,000.

                       (cYRequires that the provision offinancial assistance under Subsection (b)(3) be
                       adrt.inistered by the Texas Correctional Office on Offenders with Medical or
]                      Meilta1lmpairments (TCOOMMI) or IDCJ.

                       (drlRequires that the amount of financial assistance provided to a wrongfu1ly
                       imp!risoned person under Subsection (b)(3) be deducted from the amount of
                       con,'Pensation provided to the person under Section 103.052, Civil Practice and
                       Reio\edies Code.

       SRC-lIDA, KRK C.s,ER 1736 &1(R)                                                            Page 3 of4

                   (e) Authorizes TDCJ -to contract with private vendors or other entities to
                   implement the comprehensive reentry and reintegration plan required by this

i]                 section.

     SECTION II. Amends Chapter 614, Health and Safety Code, by adding Section 614.021, as

            Sec. 614.021. SERVICES FOR WRONGFULLY IMPRISONED PERSONS.                              (a)
            Defines "wrongfully imprisoned person. It

i]                 (b) Requires TCOOMMI to develop a plan to use existing case management
                   functions to assist wrongfully imprisoned persons who are discharged from IDCJ
                   in accessing medical and dental services, including assistance in completing
                   docmnents required for application to federal entitlement programs; obtaining

o                  mental health treatment and related support services through the public mental
                   health system for as long as the wrongfully imprisoned person requires assistance;
                   and obtaining appropriate support services, as identified by the wrongfully
                   imprisoned person and the assigned case manager, to assist the person in making
                   the transition from incarceration into the community.

                   (c) Requires TCOOMMI to submit an annual report to the legislature on the
                   provision of services under this section to wrongfully imprisoned persons.
]    SECTION 12. Repealers: Section 103.002 (Choice of Compensation Method); Subchapter C
     (Filing Suit), Chapter 103 (Compensation to Persons Wrongfully Imprisoned); and Section
     103.152(c) (relating to the amonnt of compensation awarded to a claimant being required to be
     paid on the claimant's behalf in a lnmp-sum payment for distribntion to the oblige nnder the child
     support order), Civil Practice and Remedies Code.

     SECTION 13. (a) Requires IDCJ, as soon as practicable after the effective date of this Act, to
]    develop a comprehensive plan for the reentry and reintegration of wrongfully imprisoned persons
     as required by Section 501.091, Government Code, as added by this Act.

            (b) Requires TCOOMMI, as soon as practicable after the effective date of this Aqt, to
            develop a plan to assist wrongfully imprisoned persons as required by Section 614.021,
            Health and Safety Code, as added by this Act, and to submit the first anoual report to the
            legislature as required by that section not later than September 1, 2010.

[l   SECTION 14. (a) Makes application of Chapter 103, Civil Practice and Remedies Code, as
     amended by this Act, prospective.

            (b) Entitles a person, notwithstanding Section 103.003, Civil Practice aod Remedies
            Code, as amended by this Act, who received compensation under Chapter 103, Civil
            Practice and Remedies Code, before September I, 2009, to annuity payments under
            Section 103.053, Civil Practice and Remedies Code, based on a present value sum equal
            to the amonnt the person would receive nnder Sections 103.052(a)(I) and (b), Civil
]           Practice and Remedies Code, as amended by this Act, if the person were to receive
            compensation under those sections on September I, 2009. Requires the comptroller to
            begio making payments to a claimant nnder this section not later than the 30th day after
            the date the comptroller determines the claimant is eligible to receive compensation under
            this section.

     SECTION 15. Effective date: September I, 2009.

     SRC-HDA, KRK C.S.H.B. 1736 81(R)                                                          Page4of4

                                               BILL ANALYSIS

:]                                                                                         C.S.H.B. 1736
                                                                                   ,          By: Anchia
                                                                                  lCriminal Jurisprudence
                                                                           Committee Report (Substituted)


J     1birty-eight individuals have been exonerated in Texas for crimes they didij:J.ot commit. Although
      Texas law authorizes these individuals to be compensated $50,000 per yeariserved in prison, many
      who are exonerated do not receive the full benefit of this compensati~n. According to the
      Innocence Project, of those who are exonerated after being wrongfully $prisoned, most leave
      prison without immediate financial support; it can take months or yemli: before restitution is
      forthcoming and some exonerees are never compensated. Those who do \t'eceive some financial
      compensation for their wrongful imprisonment often must live on a $nall amount of their
      compensation because of the legal expenses from the proceedings rei,quired to prove their

      C.S.H.B. 1736 increases the lUllljJ-snm compensation for persons wrOll:gfully convicted from
      $50,000 to $80,000 per year of incarceration. The bill sets the lump-sum cOfmpensation for persons
      wrongfully placed on probation or registered as sex offenders at $25,0;00 per year. The bill
      includes time spent in city or county jail in the calculation of the lUllljJ S1l1~, provides for annuity
      payments, and entitles the heirs, legal representatives, and estate of a dece;ased clajmant to lump-
      sum compensation. The bill requires the state to provide the exonerees wit1i,ihealth care and higher
      education.                                                                       .'

      It is the committee's opinion that this bill does not expressly grant any additJ;imal rulemaking
      authority to a state officer, department, agency, or institution.              '
]     C.S.H.B. 1736, the Tim Cole Act, amends the Civil Practice and Remeq;ies Code to entitle the
      heirs, legal representatives, and estate of a deceased person who would be eiD.titled to cow.pensation
      for wrongful imprisonment because the person received a full pardoIl. on ~ basis of innocence for
      the crime for which the person was sentenced or was granted relief on the hasis of actual innocence
      of the crime for which the person was sentenced, if living, including a person who received a
      posthumous pardon, to lump-sum compensation due under provisions relatiilg to compensation for
U     wrongful imprisonment. The bill makes conforming changes to reflect the i')J.titlement.

]     C.S.H.B. 1736 increases the lump-sum compensation to which a person found to be wrongfully
      imprisoned is entitled from $50,000 multiplied by the number of years sef\~ed in prison to $80,000
      multiplied by the number of years served in prison expressed as a fractionlto reflect partial years.
      The bill entitles a person found to be wrongfully imprisoned who, after ;serving a sentence in a
      Texas prison, was released on parole or required to register as a sex offendclr under the sex offender
      registration program to compensation in an amount equal to $25,000 mul1~plied by the number of
  I   years served either on parole or as a registered sex offender, expressedj:as a fraction to reflect
LJ    partial years. The bill entitles a claimant for compensation for wrongful il::Uprisonment, if requested
       by the claimant, to payment for up to 120 hours 6ftuition at a career center~ community college, or
']    http://www.legis.state.txus/tlodocs/8lRlanalysisIh1mllHB01736H.hlm                                 3/24/2010

         state university. The bill removes language entitling a person wrongfully imprisoned and
         sentenced to death to compen5ation in an amount equal to $100,000 multiplied by the number of
         years served in prison, expf(~ssed as a fraction to reflect partial years. The bill removes the
         requirement that a person WhO is owed compensation for wrongful imprisonment equal to or
         greater than $50,000 be paifi that compensation in two equal annual installments. The bill
         authorizes a claimant who is e;'ntitled to compensation becanse the person has served in whole or in
         part a sentence in prison unde;! Texas law and either received a pardon or was granted relief on the
         basis of innocence for the crime for which the person was sentenced, to participate in the group
         benefits program under the T~xas Employees Group Benefits Act on application by the claimant in
         a manner prescribed by the 1:loard of trustees of the Employee Retirement System of Texas and
         provides that the claimant isi:autornatically covered by the basic coverage for annuities provided
         under that act. The bill enti:tles a claimant who participates in the group benefits program to
         receive state contributions forlthe :full cost of the premiums..The bill removes the requirement that
         the Department of Aging andlDisability Services provide appropriate counseling for one year to a
         claimant at a mutually agreed'~ocation at no charge to the claimant, if requested by the claimant.

         C.S.H.B. 1736 entitles a person who is entitled to compensation because of wrongful imprisonment
         to annuity payments for that;~ompensation based on a present value sum equal to the amount of
    ]    lump-sum compensation to Which the person is entitled. The bill provides that these annuity
         payments are payable in equai monthly installments for the life of .the claimant and must be based
         on a five percent per annum'iinterest rate and other actuarial factors within the discretion of the
 [J      comptroller of public accounf$. The bill prohibits the acceleration, deferment, increase, or decrease
         of the annuity payments and 'Prohibits the applicant for compensation from selling, mortgaging, or
         otherwise encumbering or antijcipating the payments, wholly or partly, by assignment or otherwise.
'fJ c.
~        C.S.H.B. 1736 requires a qlaim for lump-sum compensation payable because of wrongful
         imprisonment to survive the death of the claimant in favor of the heirs, legal representatives, and
         estate of the claimant. The Bill requires the comptroller to begin making annuity payments to a
         claimant on the first anniversajry of the date of payment of the compensation due. The bill removes
         the requirement that the comptroller pay the lump-sum compensation amount in two installments
    [J   by specified dates. The lji1I specifies that annuity payments, rather than payments for
         compensation other than cojhpensation for child support, being made to a person because of
         wrongful imprisonment tenninate on the date of the person's death.

          C.S.H.B. 1736 repeals provIsions authorizing a person to bring a suit against the state for
          compensation for wrongful¥nprisonment. The bill requires the comptroller to begin making
    :1    payments to a claimant not l~ter than the 30th day after the date the comptroller determines the
          claimant is eligible to recei;.e compensation for wrongful imprisonment. The bill makes its
          provisions regarding annuitY! payments applicable to a person who received compensation for
          wrongful imprisonment befote September 1,2009, if the person were to receive such compensation
          on September 1,2009.

    ]     C.S.H.B. 1736 reenacts and'!amends Section 103.051(a), Civil Practice and Remedies Code, as
          amended by Chapters 1190 (l:I.B. 814) and 1388 (S.B. 1719), Acts of the 80th Legislature, Regular
          Session, 2007, to include in ilie documents a claimant for compensation for wrongful imprisonment

          is required to file with the comptroller's judiciary section a statement provided by a county or
          municipality that incarcerated; the person on whose imprisonment the claim is based in connection
          with the relevant sentence ~;verifying the length of the incarceration, a statement from the
          Department of Public Safety'iverifying registration as a sex offender and length of registration, if
          applicable, and a statement frpm the Texas Department of Criminal Justice verifying the length of
          time spent on parole, if applicable.

    ,J   http://www.legis.state.tx.usitlodocs/81R1analysislhtmllHBOI736H.htm                             3/24/2010

           C.S.H.B. 1736 repeals the following provisions of the Civil Practice and Remedies Code:

             • Section 103.002
             • Subchapter C, Chaptf'r 103
             • Section 103.152(c)

            September 1, 2009.
            C.S.H.B. 1736 differs from $.e original by referencing the provisions of the substitute as the Tim

o           Cole Act. The substitute '!adds a provision not in the original entitling the heirs, legal
            representatives, and estate ~f a deceased person who would be entitled to compensation for
            wrongful imprisonment if lh<jng, including a person who received a posthumous pardon, to lump·
            sum compensation and make$, conforming changes and clarifYing changes to reflect the addition.
fJ          C.S.H.B. 1736 differs froro;ithe original by clarifying that the compensation for child support
            payments that a wrongfullYi imprisoned person is entitled to applies to the person on whose
]           imprisonment the claim is6ased. The substitute differs from the original by clarifying that a
            claimant's authorization to p$rticipate in the group benefits program under the Texas Employees
            Group Benefits Act on appliqation by the claimant in a manner prescnoed by the board of trustees
~J          of the Employee Retirement$ystem of Texas applies to a claimant who is entitled to compensation
            if the person has been wrQP'gfully imprisoned. The substitute removes a provision from the
            original specifying that eligi$ility to participate in the group benefits program does not extend to
            the claimant's dependents. ..

            C.S.H.B. 1736 differs from;!the original by entitling a person entitled to compensation for the
            person's wrongful imprisonripent, rather than a person entided to lump-sum and certain other
            compensation for wrongful iJ;t,tprisonment as in the original, to ;annuity payments.

    :]                          3/24/2010

    J ....... .
                                                            WITNESS LIST
                 FIB 1736


                 Criminal Jurisprudence Committee

'J               April 1,2009 - 2:00 PM or upon final adjournJrecess
                              For:          Casto, Larry (City of Dallas)

o                                           Cha1man, Charles (Self and Innocence Project of Texas)
                                            Glasheen, Kevin (Varions Exonorees - James Woodard, Thomas McGowan,
                                            Billy Smith et al)
:]                                          j(:arage, Ente (Self)
                                            Mahsler, Kristina (Self)
                                            Session, Cory (Tim Cole, Innocence Project of Texas)
',-J                                        &mith, Billy (Self and Innocence Project ofTX)
                                            Waller, James (Innocence Project)

                              Agajnst:      qIeimlich, Ed (Self and Informed Citizens of Texas)
                              Registering, bii not testifYing:
                              For:           Colfax, Edwin (The Jnstice Project)
                                             'Qlieter, Alison (Self and Texas Moratorium Network)
                                             r;,1artin, Laura (ACLU of Texas)
                                             1(.helton, Emily (Texas Impact)
[1                                           yanez-Correa, Ana (Texas Criminal Justice Coalition)


:'~ J


     § 311.034, Texas Government Code
     Waiver of Sovereign Immunity

[]   In order to preserve the legislature's interest in managing state fiscal matters through
     the appropriations process, a statute shall not be construed as a waiver of sovereign
     immunity unless the waiver is effected by clear and unambiguous language. In a
[]   statute, the use of "person," as defined by Section 311.005 to include governmental
     entities, does not indicate legislative intent to waive sovereign immunity unless the

o    context of the statute indicates no other reasonable construction. Statutory prerequisites
     to a suit, including the provision of notice, are jurisdictional requirements in all suits
     against a governmental entity.


        § 312.005, Texas Government Code

        Legislative Intent

o       In Interpreting a statute, a court shall diligently attempt to ascertain legislative intent and
        shall consider at all times the old law, the evil, and the remedy.


J     § 312.023. Texas Government Code

      Statute Construction Aids
      In construing a statute, whether or not the statute is considered ambiguous on its face,

[J    a court may consider among other matters the:
             (1) object sought to be attained;
             (2) circumstances under which the statute was enacted;
fJ           (3) legislative history;
'=           (4) common law or former statutory provisions, including laws on the same
                  or similar subjects;
[l           (5) consequences of a particular construction;
lJ           (6) administrative construction of the statute; and
             (7) title (caption), preamble, and emergency provision.



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