Wendell C. Radford Jr., Beaumont, for Relator.

Jeffrey C. Mateer, Philip A. Lionberger, Austin, Kyle D. Hawkins, for Real Party in Interest State of Texas.

Jeffrey C. Mateer, Philip A. Lionberger, W. Kenneth Paxton Jr., Austin, Kyle D. Hawkins, for Respondent Glenn Hegar (Texas Comptroller of Public Accounts).

Stacey M. Soule, Austin, for Amicus Curiae Office of State Prosecuting Attorney.

Justice Devine delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Guzman, Justice Lehrmann, Justice Busby, and Justice Bland joined.

The sole issue in this original mandamus proceeding is whether relator Colton Lester is entitled to wrongful-imprisonment compensation under the Tim Cole Act. We conclude that Lester is entitled to Tim Cole Act compensation because the conduct for which he was imprisoned was not a crime at any time during his criminal proceedings. We therefore conditionally grant Lester's petition for writ of mandamus.

I

This is an egregious case of the criminal-justice system gone wrong. In 2013, the Court of Criminal Appeals ruled that Section 33.021(b) of the Texas Penal Code (Online Solicitation of a Minor) was unconstitutional. Ex parte Lo , 424 S.W.3d 10 (Tex. Crim. App. 2013). In 2014, seventeen-year-old Lester attempted to sexually proposition a minor over text message. Lester was charged with attempted online solicitation of a minor under Section 33.021(b), a third-degree felony, even though the Court of Criminal Appeals had already declared the statute unconstitutional. Unaware that his prosecution was illegal, Lester pleaded guilty to the charge and received a five-year deferred adjudication sentence. Lester's probation was later revoked, and Lester was sentenced to three years in prison. He ultimately served two years in prison before obtaining relief on his first petition for a writ of habeas corpus. After his release, Lester applied for compensation under the Tim Cole Act. His application was denied. Lester then filed an application to cure, but that application was also denied. Lester subsequently filed this original proceeding. The Tim Cole Act entitles certain wrongfully imprisoned individuals to compensation from the State. The Texas Comptroller of Public Accounts has the duty to determine eligibility for Tim Cole Act compensation. TEX. CIV. PRAC. & REM. CODE § 103.051(b)(1). This duty is purely ministerial. Id. § 103.051(b-1). The Act further provides that an applicant may challenge the Comptroller's denial of compensation by bringing an action for mandamus relief. Id. § 103.051(d) – (e). This Court has exclusive jurisdiction to mandamus the Comptroller, as an executive officer of the State, and thus the mandamus action must be filed as an original proceeding here. See TEX. GOV'T CODE § 22.002(c) (providing that only the Supreme Court has authority to issue writs of mandamus against executive officers of the state); In re Smith , 333 S.W.3d 582, 585 (Tex. 2011).

The Tim Cole Act provides several avenues for compensation, but only one is at issue here. Texas Civil Practice & Remedies Code Section 103.001(a)(2)(B) provides that a wrongfully imprisoned person is entitled to compensation if the person "has been granted relief in accordance with a writ of habeas corpus that is based on a court finding or determination that the person is actually innocent of the crime for which the person was sentenced." Lester contends that he is "actually innocent" of the crime of online solicitation of a minor because the Court of Criminal Appeals had already declared Section 33.021(b) unconstitutional before Lester sent the offending text message.

II

In In re Allen , 366 S.W.3d 696, 706 (Tex. 2012), we acknowledged that "actual innocence" is a "legal term of art [that] has acquired a technical meaning in the habeas corpus context." There are two types of actual-innocence claims in Texas habeas law. Id. at 703 (citing Ex parte Franklin , 72 S.W.3d 671, 675 (Tex. Crim. App. 2002) ). First, Herrera claims are substantive claims in which a petitioner "asserts that newly discovered evidence establishes an applicant's innocence." Id. ; see also Herrera v. Collins , 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). "The most familiar Herrera -type cases are those in which DNA testing leads to exoneration of the applicant." Allen , 366 S.W.3d at 703. Second, Schlup claims are procedural claims that provide a "gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Id. at 704 (quoting Schlup v. Delo , 513 U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) ). Thus, a petitioner may succeed on a Schlup claim only if the petitioner's claims for habeas relief are procedurally barred.

Here, Lester does not have any "newly discovered evidence" on which to base a Herrera claim. Lester's habeas petition also was not procedurally barred, eliminating the need for a Schlup gateway claim. Thus, Lester does not have either type of actual-innocence claim currently recognized in Texas habeas law.

However, habeas actual-innocence jurisprudence—and our related decision in Allen —is based on the assumption that the petitioner's alleged conduct was criminal at the time it was committed. For example, in Allen , petitioner Billy Frederick Allen was charged with murder. 366 S.W.3d at 701. There was no question—before, during, or after Allen's criminal trial—that Allen's alleged actions, if proven, constituted a crime. Rather, Allen relied on newly discovered exculpatory evidence to successfully argue that (1) he probably did not commit the crime, so the court should consider his procedurally barred successive habeas petition (a Schlup claim); and (2) his counsel was unconstitutionally deficient, entitling him to relief. Ex parte Allen , Nos. AP-75580, AP-75581, 2009 WL 282739 (Tex. Crim. App. Feb. 4, 2009). We ultimately concluded that Allen was entitled to Tim Cole Act compensation because his successful Schlup claim brought him within the "narrow class of cases that satisfy the actual innocence standard." Allen , 366 S.W.3d at 710. But again, our decision assumed that Allen's conduct would have been criminal had the state been able to prove that Allen in fact committed the murders for which he was charged.

Here, as a matter of historical fact, Lester's conduct was not a crime at the time it was committed because the Court of Criminal Appeals had already declared the online-solicitation statute unconstitutional. Lester is therefore actually innocent in the same way that someone taking a stroll in the park is actually innocent of the crime of walking on a sidewalk. No such crime exists. Just because existing actual-innocence jurisprudence does not contemplate something as outrageous as Lester's case does not mean that Lester, who committed no crime, is anything but actually innocent.

Our decision today does not conflict with the Court of Criminal Appeals' decision in Ex parte Fournier , 473 S.W.3d 789 (Tex. Crim. App. 2015). In Fournier , as in this case, the petitioners sought habeas relief on the ground that their convictions for online solicitation of a minor under Section 33.021(b) were unconstitutional. Id. at 790. Although the Fournier Court concluded that the petitioners were entitled to habeas relief, the Court held that the petitioners were not "actually innocent" of the crime for which they were convicted. Id. at 793. The Court reasoned that the petitioners were not "actually innocent" of the crime of online solicitation of a minor because the "conduct on which the criminal prosecution was based still exists as a matter of historical fact." Id.

The State urges us to adopt Fournier 's reasoning here: Lester admits that he, in fact, sent the text message in question, so the State reasons that Lester cannot be "actually innocent" of the crime. Again, however, the Fournier decision assumes that the underlying conduct would have been a crime if proven. See id. at 797 (Alcala, J., concurring) ("[The petitioners] did commit acts that, at the time those acts were committed, were considered criminal under the laws of this State." (emphasis added)). Indeed, Fournier acknowledged that a petitioner is actually innocent when the petitioner "did not, in fact, commit the charged offense or any of the lesser-included offenses." Id. at 792 (quoting State v. Wilson , 324 S.W.3d 595, 598 (Tex. Crim. App. 2010) ). The Fournier petitioners were charged under Section 33.021(b) before the Court of Criminal Appeals declared the statute unconstitutional. Id. at 790. Thus, the Fournier petitioners did, "in fact, commit the charged offense" of online solicitation of a minor. Id. at 792. In contrast, the Court of Criminal Appeals had already declared Section 33.021(b) unconstitutional at the time Lester sent the offending text message, and Lester's prosecution under that statute was illegal from its inception. Lester therefore could not have "commit[ted] the charged offense" of online solicitation of a minor because that offense, in fact, no longer existed. Id. ; see also Reyes v. State , 753 S.W.2d 382, 383 (Tex. Crim. App. 1988) ("[A]n unconstitutional statute, as a general rule, amounts to nothing and accomplishes nothing and is no law."). Lester did not commit acts that, at the time those acts were committed, were criminal under the laws of the State. See Fournier , 473 S.W.3d at 797 (Alcala, J., concurring). Thus, Fournier is consistent with our holding today.

Both dissents see Fournier differently. Justice Blacklock's dissent observes that the Court of Criminal Appeals used similar language in its orders granting relief in this case and in Fournier . Post at ––––. Thus, because the Court of Criminal Appeals expressly rejected the Fournier petitioners' actual-innocence theory, Justice Blacklock concludes that we must do the same here. Justice Blacklock also emphasizes that the Tim Cole Act requires an applicant's supporting papers to "clearly indicate on their face" that the applicant was granted relief on actual-innocence grounds. Id. at 479; TEX. CIV. PRAC. & REM. CODE § 103.051(b-1). In light of Fournier , Justice Blacklock argues, Lester could not have made such a showing. Post at ––––.

However, this approach elevates form over substance. At bottom, Justice Blacklock would limit Tim Cole Act compensation to only those cases in which the Court of Criminal Appeals expressly states that the petitioner is actually innocent. See id. at ––––. We do not see the Act as so limited. First, the Act does not include this express requirement. And second, from a practical perspective, such a limited approach would essentially prohibit any further litigation about who is eligible for compensation under the Act. We have already declined to adopt such a rigid approach. See Allen , 366 S.W.3d at 709–10 (holding that the petitioner was entitled to Tim Cole Act compensation, even though the Court of Criminal Appeals did not "explicitly state that its holding [was] based on actual innocence").

Justice Boyd's dissent takes yet another view of Fournier . Justice Boyd first observes the "well-established principle[ ]" that an unconstitutional statute is void from its inception. Post at 478. Thus, according to Justice Boyd, all individuals convicted under an unconstitutional statute must either be actually innocent from the beginning or not actually innocent at all. Id. at ––––. Put differently, the statute was void at all times; therefore, Justice Boyd argues, all convictions secured under the statute are equally void, regardless of whether the conviction occurred before or after the Court of Criminal Appeals declared the statute unconstitutional. Thus, there can be no difference between the legal status of the Fournier petitioners' convictions (secured before the statute was declared unconstitutional) and Lester's conviction (secured after the statute was declared unconstitutional). Because Fournier held that the petitioners in that case were not actually innocent, Justice Boyd contends that Lester also cannot be actually innocent. However, this approach blurs the lines between the distinct concepts of actual innocence and legal innocence. Lester and the Fournier petitioners are all legally innocent because their convictions were secured under an unconstitutional statute that was void from its inception. However, actual innocence asks a different question: whether the petitioner "did not, in fact, commit the charged offense or any of the lesser-included offenses." Fournier , 473 S.W.3d at 792 (quoting Wilson , 324 S.W.3d at 598 ). Thus, actual innocence is not an inquiry into the legal status of a petitioner's conviction or the legal status of the statute in question. Rather, actual innocence is an inquiry of historical fact. The Fournier petitioners did, in fact, commit the crime of online solicitation because they committed certain acts that met each element of the online-solicitation offense that was in force at that time. In contrast, as a matter of historical fact, Lester's actions did not constitute an offense at the time he committed them. Lester is therefore actually innocent, while the Fournier petitioners are not. But nothing about the historical nature of the actual innocence inquiry undermines the longstanding rule that an unconstitutional statute is legally void from its inception. See Reyes , 753 S.W.2d at 383.

III

Finally, we acknowledge that parts of our Allen decision suggest that actual innocence under the Tim Cole Act is limited to only Herrera or Schlup claims. See Allen , 366 S.W.3d at 708–09. However, that limiting language was immaterial to Allen 's central holding—which we leave undisturbed—that Schlup claims are actual-innocence claims under the Tim Cole Act. See id. at 710. While we acknowledge Justice Blacklock's view that Allen should govern in its entirety, post at ––––, the Allen decision did not contemplate the type of patently unjust (and unconstitutional) prosecution before us today. We now hold that actual innocence under the Tim Cole Act encompasses Herrera claims, Schlup claims, and that "narrow class of cases" in which the petitioner's actions were not criminal at the time the acts were committed. See Allen , 366 S.W.3d at 710.

The Court of Criminal Appeals, in granting Lester habeas relief, determined that Lester's conviction was "not valid" because the Court had declared the online-solicitation statute unconstitutional before Lester's conviction. Lester is therefore entitled to compensation under the Tim Cole Act because he "has been granted relief in accordance with a writ of habeas corpus that is based on a court finding or determination that the person is actually innocent of the crime for which the person was sentenced." TEX. CIV. PRAC. & REM. CODE § 103.001(a)(2)(B). Lester is actually innocent because his wrongful conviction is based on conduct that was not a crime. The Comptroller concluded, however, that Lester's application for wrongful-imprisonment compensation "did not meet the actual innocence requirement of [this provision]." Because it did and the Comptroller's duty under the Act is purely ministerial, we direct the Comptroller to compensate Lester under the terms of the Tim Cole Act. We assume that the Comptroller will comply, and a writ of mandamus will issue only in the event he fails to do so.

The petition for writ of mandamus is conditionally granted.

Justice Boyd filed a dissenting opinion.

Justice Blacklock filed a dissenting opinion, in which Justice Boyd joined as to Part I.

Justice Boyd, dissenting. As the Court correctly observes, this is "an egregious case of the criminal-justice system gone wrong." Ante at 483. And I applaud the Court's diligent effort to right that wrong. As JUSTICE BLACKLOCK correctly observes, however, the issue before us is not whether we think the state should compensate Colton Lester for wrongful imprisonment, but whether the Tim Cole Act authorizes such compensation under these circumstances. The Act authorizes compensation for a person who has "been granted relief in accordance with a writ of habeas corpus that is based on a court finding or determination that the person is actually innocent of the crime for which the person was sentenced." TEX. CIV. PRAC. & REM. CODE § 103.001(a)(2)(B) (emphasis added). I join section I of JUSTICE BLACKLOCK 's dissenting opinion, concluding that Lester's right to compensation depends not on whether we think Lester was "actually innocent" of the crime for which he was sentenced, but on whether the Court of Criminal Appeals granted Lester habeas relief for that reason. And I agree with JUSTICE BLACKLOCK that the Court of Criminal Appeals did not grant Lester relief based on actual innocence. But I agree with that conclusion for a completely different reason.

In 2014, Lester (then seventeen years old) sent a text message attempting to sexually proposition a minor. When charged with the crime of attempted online solicitation of a minor in violation of Texas Penal Code section 33.021(b), he pleaded guilty. The court initially granted him five years of deferred adjudication, but he violated the terms of community supervision two years later. The court then declared him guilty of the offense and sentenced him to three years in prison.

But in 2013, the year before Lester sent the offending text message, the Texas Court of Criminal Appeals declared section 33.021(b) facially unconstitutional because it prohibited constitutionally protected speech and was not narrowly drawn to impose the least restrictive means to achieve the government's compelling interest in protecting children from sexual abuse. See Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When Lester engaged in the offending conduct in 2014, section 33.021(b) remained in the Penal Code as it existed in 2013. In 2015, the legislature amended the Code, revising section 33.021(b) to require an intent to commit particular offenses rather than an intent to arouse or gratify a person's sexual desire. The Court of Criminal Appeals has not yet considered whether the 2015 amendments corrected the constitutional problems identified in Lo .

Meanwhile, after serving two years of his prison sentence, Lester obtained a writ of habeas corpus setting aside his conviction based on the statute's unconstitutionality as declared in Lo . The writ did not expressly find or determine that Lester was actually innocent of the offense. Nevertheless, he sought compensation for wrongful imprisonment under the Tim Cole Act.

Lester is not the only person convicted under section 33.021(b) who later sought relief based on actual innocence. In 2015, the Court of Criminal Appeals granted habeas relief to two others on the ground that (as the Court had declared in Lo ) the statute was unconstitutional. Ex parte Fournier , 473 S.W.3d 789, 796 (Tex. Crim. App. 2015). But the Court of Criminal Appeals specifically refused to grant relief on the ground of actual innocence. Id. Because the applicants in Fournier did "not contest that they engaged in the conduct for which they were convicted" and the "conduct on which the criminal prosecution was based still exists as a matter of historical fact," the Court concluded that they did "not assert true claims of actual innocence for which [habeas] relief may be granted." Id. at 793.

Lester finds himself in the same predicament. He does not deny that he engaged in conduct the Penal Code prohibited, and his conduct still exists as a matter of historical fact. Although he obtained habeas relief based on Lo 's declaration that the statute was unconstitutional, Fournier requires the conclusion that the relief was not based on actual innocence.

Instead of disagreeing with and rejecting the Court of Criminal Appeals' decision in Fournier , the Court attempts to distinguish it on the ground that the applicants in that case committed the offending conduct before Lo declared the statute unconstitutional, while Lester committed the conduct after Lo . According to the Court, Lester (unlike the Fournier applicants) obtained habeas relief declaring him actually innocent because his conduct was not "criminal at the time it was committed." Ante at 472. But the Court's attempt to distinguish this case from Fournier rests on a misunderstanding of the effect of the Lo decision declaring section 33.021(b) unconstitutional. I cannot agree with the Court's distinction because, as we explain in another case decided today, unconstitutional laws are void ab initio and invalid from inception. See Ex parte E.H. 602 S.W.3d 486, –––– (Tex. May 15, 2020).

The United States Supreme Court explained long ago that an "unconstitutional law is void, and is no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void." Ex parte Siebold , 100 U.S. 371, 376, 25 L.Ed. 717 (1879). As a matter of law, section 33.021(b) was " ‘void from its inception ... as if it had never been,’ " and "is to be considered no statute at all." Smith v. State , 463 S.W.3d 890, 895 (Tex. Crim. App. 2015) (quoting Reyes v. State , 753 S.W.2d 382, 383 (Tex. Crim. App. 1998) ). And, as we explain today in E.H. , "in the absence of the statute, no ‘offense’ ever occurred" under section 33.021(b), at least prior to its amendment in 2015. E.H. , 602 S.W.3d at –––– ; see Offense , BLACK'S LAW DICTIONARY (11th ed. 2019) ("A violation of the law; ... a crime ...."). If (as the Court of Criminal Appeals concluded) the applicants in Fournier were entitled to habeas relief, they were entitled to that relief because section 33.021(b) was never valid to begin with, not because it became invalid when the Court of Criminal Appeals issued its decision in Lo . Under Fournier , those applicants, like Lester, were entitled to habeas relief, but they were not "actually innocent" of engaging in the conduct the statute prohibited.

Contrary to these well-established principles, the Court's holding today can only be correct if an unconstitutional statute is not completely void and ineffective until a court declares it to be unconstitutional. Under the Court's analysis, section 33.021(b) retained some unidentified effect after Lo declared it unconstitutional, prohibiting the Fournier applicants from being actually innocent because they committed the conduct before Lo but making Lester actually innocent because he committed the conduct after Lo . But an unconstitutional statute is void from its inception. E.H. , 602 S.W.3d at ––––. Its " ‘unconstitutionality dates from the time of [the statute's] enactment, and not merely from the date of the decision so branding it.’ " Reyes , 753 S.W.2d at 383–84 (quoting 16 AM. JUR. 2d Constitutional Law § 256 (1979) ).

As the Court explains, Lester "could not have ‘commit[ted] the charged offense’ of online solicitation of a minor because that offense, in fact, no longer existed." Ante at 473. But under Fournier , his habeas relief was not based on a finding or determination of actual innocence. For both Lester and the Fournier applicants, the offense "no longer existed" from the time section 33.021(b) was enacted in 2007 because Lo declared the statute unconstitutional in 2013. Regardless of when the person committed the offending conduct, the conviction cannot stand because the statute's unconstitutionality prevented an offense from ever occurring. But whether the person committed the conduct before or after Lo , the person is not actually innocent because " Lo is irrelevant to whether [the person's] conduct was in fact committed." Fournier , 473 S.W.3d at 793. Because Lester cannot meet the Tim Cole Act's requirement of "actual innocence," I would deny the petition for the writ of mandamus. I therefore respectfully dissent.

Justice Blacklock, joined by Justice Boyd as to Part I only, dissenting.

No provision of the Tim Cole Act authorizes compensation in "egregious case[s] of the criminal-justice system gone wrong." Ante at 476. Try as it might to make the Act conform to its sense of what Colton Lester deserves, the Court cannot alter the Act's stubbornly narrow text or what the Court of Criminal Appeals (CCA) and this Court have already decided about "actual-innocence" claims and eligibility for wrongful-imprisonment compensation. Lester pleaded guilty to online solicitation of a minor for sex. His conviction was vacated. But he is not "actually innocent," as that concept is understood in habeas corpus law. No court has ever found him to be "actually innocent" (until today), and the Tim Cole Act comes nowhere close to mandating that Texas taxpayers compensate him. The Court's outrage over Lester's prosecution does not change what the Tim Cole Act says or how this Court and the CCA have previously understood "actual-innocence" claims. Lester is not entitled to compensation, and his petition should be denied.

I respectfully dissent.

I.

The Act states that a wrongfully imprisoned person is entitled to compensation if the person "has been granted relief in accordance with a writ of habeas corpus that is based on a court finding or determination that the person is actually innocent of the crime for which the person was sentenced." TEX. CIV. PRAC. & REM. CODE § 103.001(a)(2)(B). This statutory right to compensation is not triggered by the claimant's "actual innocence" in some abstract sense. In other words, it does not matter whether this Court thinks Lester deserves to be called "actually innocent." Under the statute's text, all that matters is whether another court, presented with a habeas corpus petition, has already granted relief to Lester "based on a court finding or determination that [Lester] is actually innocent." Id. Again, it does not matter whether Lester was "actually innocent" under whatever theory of "actual innocence" this Court announces. Under the statute, what matters is whether the habeas relief Lester actually obtained was based on "a court finding or determination" that he "is actually innocent." Id.

This Court's decision in In re Allen accurately stated the proper standards for deciding wrongful-imprisonment compensation claims. 366 S.W.3d 696, 706 (Tex. 2012). The standards dictated by the Act and by Allen look nothing like the "actual-innocence" analysis the Court applies today. The Act requires that we focus exclusively on whether the criminal courts granted habeas relief on "actual-innocence" grounds, as that term is understood in habeas corpus law. Whether we think the applicant is "actually innocent," as we believe that concept should be understood, has nothing to do with it. "Whether compensation may be awarded under the TCA depends, in the first instance, on determinations in the criminal courts of the merits of the applicant's conviction." Id . at 703. "The term ‘actual innocence’ has a particular meaning within habeas corpus jurisprudence, in that it is a particular type of claim ‘that may be raised in a collateral attack on a conviction.’ " Id. at 706 (quoting Ex parte Tuley , 109 S.W.3d 388, 390 (Tex. Crim. App. 2002) ). "Therefore, in order for [Lester] to be eligible for compensation under the TCA, the Court of Criminal Appeals' determination must be based on actual innocence." Id. at 709. In Allen , we did not ask, as the Court does today, whether it was fair or just or "outrageous" to think of Allen as "anything but actually innocent." Ante at 473. Instead, we did what the statute commands. We limited the analysis to "whether the court order [awarding habeas relief] was granted or rendered on the basis of the claimant's actual innocence." Allen , 366 S.W.3d at 709.

As explained above, section 103.001(a)(2)(B) limits the inquiry to an examination of the habeas-granting court's basis for relief. And as Allen recognizes, other provisions of the Tim Cole Act reinforce this limitation. "To apply for compensation under this subchapter, the claimant must file with the comptroller's judiciary section," among other things "(2) a verified copy of the pardon, court order, motion to dismiss, and affidavit, as applicable, justifying the application for compensation." Id. § 103.051(a)(2). And then, crucially:

In determining the eligibility of a claimant, the comptroller shall consider only the verified copies of documents filed under Subsection (a)(2). If the filed documents do not clearly indicate on their face that the person is entitled to compensation under Section 103.001(a)(2), the comptroller shall deny the claim.

Id. § 103.051(b–1) (emphasis added). Thus, the question we should be asking is not merely whether the CCA's grant of habeas relief to Lester "is based on a court finding or determination that [Lester] is actually innocent." Id . § 103.001(a)(2)(B). The proper question is whether the CCA's order and related papers "clearly indicate on their face" that Lester received habeas relief "based on a court finding or determination that [he] is actually innocent." Allen , 366 S.W.3d at 709 (describing the correct inquiry as "whether the Court of Criminal Appeals' decision clearly indicated on its face that the writ was based on a court finding or determination of actual innocence.").

Despite the statute's plain text and Allen 's clear and accurate instruction for how to apply the text, the Court's opinion all but ignores what ought to be the controlling document in this case: the CCA decision granting habeas relief to Lester. Only if that decision is "based on a court finding or determination of actual innocence" is Lester entitled to compensation. The decision is worth quoting in its entirety:

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young , 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of attempted online solicitation of a minor and sentenced to imprisonment. TEX. PENAL CODE § 33.021(b). There was no direct appeal.

In Ex parte Lo , this Court declared the statute of conviction, § 33.021(b), unconstitutional. Ex parte Lo , 424 S.W.3d 10 (Tex. Crim. App. 2013). The trial court, with the State's agreement, finds that Applicant's conviction is not valid in light of Ex parte Lo . This Court agrees. Ex parte Chance , 439 S.W.3d 918 (Tex. Crim. App. 2014).

Relief is granted. The judgment of conviction for attempted online solicitation of a minor in cause number 23,538 from the 258th District Court of Polk County is set aside, and the cause is remanded to the trial court to dismiss the indictment.

Ex parte Lester , No. WR-88,227-01, 2018 WL 1736686, at *1 (Tex. Crim. App. April 11, 2018). In these three short paragraphs, the CCA granted habeas relief to Lester "in light of Ex parte Lo ," in which the CCA declared the online-solicitation statute unconstitutionally overbroad. Id. The CCA did not mention "actual innocence," much less "clearly indicate" that it was granting relief on that basis. The overbreadth of the online-solicitation statute—not Lester's "actual innocence"—formed the basis of the CCA's grant of relief to Lester.

Allen makes clear that when deciding what "actual innocence" means, we must look to what it means in the CCA's habeas corpus decisions. 366 S.W.3d at 703–07 (analyzing the CCA's understanding of "actual-innocence" claims in the habeas context). At first glance, it might seem odd that this Court is bound by the CCA's understanding of the statutory term "actual innocence" when we are deciding what a non-criminal statute like the Tim Cole Act means. Recall, however, that the inquiry is not whether the claimant is "actually innocent" as this Court understands that term. The inquiry is whether the CCA or another criminal court granted habeas relief based on a "finding or determination" of "actual innocence." Deciding what another court based its decision on can be tricky business, but it is what the statute commands us to do. In so doing, we cannot use our own impression of the equities of the case to discover a "finding or determination" of "actual innocence" that the CCA itself never made. Instead, we must look to what the CCA actually said in its ruling, and what it has said about "actual-innocence" findings in related cases, an approach we previously ratified in Allen . The statute does not authorize us to announce new theories of "actual innocence" never recognized by the CCA and then claim that CCA rulings in the past were premised on our newly announced theory of "actual innocence." We must not put words in another court's mouth.

Under the Act's text and Allen , we must ask whether the CCA considered itself to be granting relief on the basis of "actual innocence," as that term is understood in habeas corpus law, when it granted Lester's habeas petition. Once the inquiry is properly defined, there is no question Lester cannot establish eligibility for compensation. To begin with, the CCA has explicitly disavowed the notion that habeas relief based on the criminal statute's unconstitutionality is tantamount to habeas relief based on "actual innocence." In Ex parte Fournier , the CCA rejected the argument that " Lo entitles [a]pplicants to [habeas] relief under an ‘actual innocence’ theory." 473 S.W.3d 789, 790 (Tex. Crim. App. 2015). The CCA squarely held in Fournier that applicants whose convictions are overturned based on Ex parte Lo have not been granted relief based on claims for "actual innocence." Id. at 710.

The Court seems to acknowledge that, under Fournier , most applicants who have had their online-solicitation convictions overturned under Ex parte Lo are not entitled to wrongful-imprisonment compensation because their habeas relief was not based on their "actual innocence." It claims Lester's case is distinguishable because he committed online solicitation of a minor after Ex parte Lo was decided. Ante at ––––. Thus, the Court reasons, there was "no crime" for Lester to commit, and he is every bit as "actually innocent" as a person walking down the sidewalk. Id. at 473. As explained below, it is an oversimplification to say there was "no crime" for Lester to commit. Infra at 473. But even if the Court is right—even if the crime of online solicitation of a minor ceased to exist for all purposes the moment Ex parte Lo was decided—that does not mean the habeas relief Lester received from the CCA was based on "a finding or determination that [he] is actually innocent." It does not matter whether Fournier and this case are "distinguishable" by virtue of their timing relative to Ex parte Lo . What matters is whether the CCA order granting habeas relief to Lester is distinguishable from the comparable order in Fournier and the many other cases in which the CCA has granted relief in light of Ex parte Lo . The CCA has clarified that those orders do not grant relief on the basis of "actual innocence." Fournier , 473 S.W.3d at 791. Only if the order granting habeas relief to Lester or the supporting papers "clearly indicate on their face" that the CCA granted Lester's relief on grounds related to the timing of his prosecution after Ex parte Lo can Lester's case be distinguished from Fournier in a meaningful way.

Lester comes nowhere close to meeting this burden. He did not even argue to the CCA that he should be granted habeas relief under an "actual-innocence" theory due to his having been prosecuted after Ex parte Lo . Even if he had argued it, what matters is whether the CCA made a "finding or determination that [Lester] is actually innocent" because his prosecution came after Ex parte Lo . The CCA made no such "finding or determination." Quite the opposite, in fact. The passage in which the CCA described its reasons for granting relief to Lester reads: "The trial court, with the State's agreement, finds that Applicant's conviction is not valid in light of Ex parte Lo . This Court agrees. Ex parte Chance , 439 S.W.3d 918 (Tex. Crim. App. 2014)." Ex parte Lester , 2018 WL 1736686, at *1. Thus, the CCA granted habeas relief to Lester because it "agree[d]" that Lester's "conviction is not valid in light of Ex parte Lo ." This is exactly the same reason the CCA gave for granting habeas relief in Fournier , where it made clear it was not ruling on the basis of "actual innocence": "Although we find against Applicants in their claims for actual innocence relief, Applicants are entitled to relief under Lo and our subsequent decision in Ex parte Chance ." Fournier , 473 S.W.3d at 796.

Not only do the CCA's decisions in Ex parte Lester and Fournier cite the exact same reason for granting habeas relief, they cite the exact same case— Ex parte Chance , 439 S.W.3d 918 (Tex. Crim. App. 2014) (per curiam). Chance committed his crime in 2008, and his direct appeals were exhausted in 2011, Chance v. State , No. 09-10-00506-CR, 2011 WL 303884, at *1 (Tex. App.—Beaumont Jan. 27, 2011), two years before Ex parte Lo . By citing Ex parte Chance in granting Lester's habeas petition, the CCA indicated it believed it was granting relief to Lester for the same reasons it had already granted relief to Chance. The CCA explained its reasoning in Chance as follows:

Applicant, through counsel, filed this habeas application based on the Lo decision and asks that his convictions be set aside. The trial court recommends granting relief. After considering the trial court's findings and the parties' objections and responses regarding them, this Court agrees with the trial court, and relief is granted.

439 S.W.3d at 918. If the CCA thought the timing of Lester's prosecution and conviction had anything to do with its grounds for granting him habeas relief, it would have said so. By justifying its ruling in Lester's case with a citation to Chance , where the crime and conviction occurred before Ex parte Lo , the CCA confirmed that its reasons for granting relief had nothing to do with a distinction between pre- Lo and post- Lo prosecutions. In all these cases— Fournier , Chance , Lester , and others¹ —the CCA granted relief for the same reason: Ex parte Lo 's determination that the online-solicitation statute is unconstitutional. And in Fournier , the CCA rejected the argument that petitioners appealing to Ex parte Lo are entitled to relief on an "actual-innocence" theory. Fournier , 473 S.W.3d at 796. As far as the CCA is concerned, Lester is just one more petitioner in a long line of cases governed by Ex parte Lo and Fournier . That's the end of it. We should take the CCA at its word instead of trying to put words in its mouth.

Finally, there is no reason to wonder whether the CCA secretly harbored extra reasons for granting Lester's petition, reasons related to his post- Lo prosecution. By citing Chance as an analogous case, the CCA left no doubt about the matter. But even if the CCA had left some ambiguity in its decision, that would not be enough for Lester, who is only entitled to compensation if the CCA papers "clearly indicate" that Lester "has been granted relief in accordance with a writ of habeas corpus that is based on a court finding or determination that the person is actually innocent." TEX. CIV. PRAC. & REM. CODE § 103.001(a)(2)(B). Lester cannot even begin to make that showing. He appeals to sympathy for his unusual circumstances, and he raises irrelevant factual distinctions between his situation and that of the petitioners in Allen and Fournier —none of which has anything to do with the statutory standards governing wrongful-imprisonment compensation. He does not and cannot show that the CCA's grant of habeas relief to him "clearly indicate[s]" that the CCA made a "finding or determination" that he is "actually innocent."

In my view, the Comptroller would have committed a clear abuse of discretion had it awarded compensation to Lester on this record. Whether or not this is an "egregious case of the criminal-justice system gone wrong," ante at 476, we should let the Legislature and the CCA take care of the criminal-justice system. We should stay in the box drawn for us by the Tim Cole Act. We should deny Lester's petition.

II.

In addition to misconstruing the statute, the Court also misconstrues the effect of Ex parte Lo on the legal landscape. In so doing, the Court overrules sub silentio its prior, correct statement—just three years ago—regarding judicial declarations of the unconstitutionality of statutes: "When a court declares a law unconstitutional, the law remains in place unless and until the body that enacted it repeals it, even though the government may no longer constitutionally enforce it." Pidgeon v. Turner , 538 S.W.3d 73, 88 n.21 (Tex. 2017) (holding that Texas's traditional marriage laws may retain some legal effect despite Obergefell v. Hodges , 574 U.S. 1118, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015) ). After today, that statement from Pidgeon hangs from a thread (though it remains correct). Under today's decision, statutes declared unconstitutional by courts no longer exist. Ante at ––––. Anyone prosecuted under such a statute is not just protected from prosecution by the Constitution. He is just as "actually innocent" as a person taking a walk in the park.² Ante at ––––.

I disagree, and I would stick with the way Pidgeon sees it. Although lawyers and judges frequently speak of courts "striking down" or "nullifying" statutes, more careful consideration of the matter readily exposes the deficiency of this colloquial rhetoric of judicial supremacy. Courts are not legislatures. The Texas Constitution reserves the law-making and law-rescinding powers to the Legislature, and it prohibits the judiciary from "exercis[ing] any power properly attached to either of the other[ ] [branches]." Tex. Const. art. II, § 1. "The power of judicial review ... permits a court to enjoin executive officials from taking steps to enforce a statute. ... But the statute continues to exist, even after a court opines that it violates the Constitution ...." Jonathan F. Mitchell, The Writ-of-Erasure Fallacy , 104 Va. L. Rev. 933, 936 (2018) ; see also Winsness v. Yocom , 433 F.3d 727, 728 (10th Cir. 2006) (McConnell, J.) ("There is no procedure in American law for courts or other agencies of government—other than the legislature itself—to purge from the statute books, laws that conflict with the Constitution as interpreted by the courts.").

That a statute continues to exist and to have potential legal consequences after a court declares it unconstitutional is vividly demonstrated by the history of this very case. Lester admitted to violating a criminal statute. When he did so, Ex parte Lo had already announced the CCA's view that the online-solicitation statute is unconstitutional and that courts in Texas should not enforce it. While the local police may perhaps be excused for not staying abreast of the CCA's opinions, the prosecutors should have done so, and it was ultimately the job of Lester's counsel to raise the defense of the statute's unconstitutionality. Had his counsel done so, the prosecution would no doubt have ended swiftly. But Lester's counsel did not raise it. Instead, Lester pleaded guilty, and his conviction became a final judgment. When his probation was revoked, he was sentenced to three years in prison. There were many points along this path at which someone should have raised Ex parte Lo on Lester's behalf. But that did not happen. And because it did not happen, Lester's conviction gave rise to a procedurally valid final judgment and sentence of imprisonment, which both Lester and the prison system were obligated to follow and which only ceased to be binding when Lester succeeded in a habeas corpus action. All of those real-world events flowed from the statute, which continued to exist and have ongoing legal consequences in cases where Ex parte Lo was not raised as a defense.

The Court analogizes Lester's case to someone arrested for the dystopian non-crime of walking in the park. Ante at ––––. But the two are nothing alike. The Legislature, on behalf of the people of Texas, decided to criminalize online solicitation of a minor to protect children from sexual predators on the internet. The Legislature, which swears the same oath to uphold the Constitution that judges do, did not think a statute criminalizing prurient sexual interaction with children was unconstitutional. Otherwise, they would not have enacted it. The Governor did not think it unconstitutional either. He signed it. The Court of Criminal Appeals disagreed. It thought the statute unconstitutionally overbroad. Courts tend to have the last word on such matters, and this was no exception, despite a few hiccups.

Unlike someone walking in the park, Lester admitted to doing something the legislative and executive branches deemed criminal. His elected prosecutors believed he deserved to be punished for it. His counsel did not figure out the problem. The judges overseeing his case never asked how it could be that someone like Lester is being punished. It is utterly inconceivable that a prosecution for the non-crime of walking down the street could ever go anywhere near as far as Lester's prosecution did. That is because the two scenarios are nothing alike. Yes, in a perfect world, everyone in the criminal-justice system would stay more up-to-date on CCA opinions. But this is not a perfect world, as this case demonstrates. Prosecuting someone for predatory behavior that has been criminalized by statute—in ignorance of court decisions declaring the statute unconstitutional—bears no resemblance to maliciously prosecuting someone for blameless behavior everyone knows is not a crime.

On top of that, the CCA has never held that the Constitution entitles Lester or anyone else to commit the acts for which they were convicted under the online-solicitation statute. It almost certainly does not. Under the First Amendment overbreadth doctrine, "a law may be declared unconstitutional on its face, even if it may have some legitimate application and even if the parties before the court were not engaged in activity protected by the First Amendment." State v. Johnson , 475 S.W.3d 860, 864–65 (Tex. Crim. App. 2015) (citing United States v. Stevens , 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) ). This is an exception to the general rule that prohibits facial injunctions unless the challenger can "establish that no set of circumstances exists under which the Act would be valid." Rust v. Sullivan , 500 U.S. 173, 183, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ). As the CCA understood the law, Mr. Lo did not have to prove that the Constitution protected his behavior in order to win habeas relief based on the online-solicitation statute's overbreadth. Ex parte Lo , 424 S.W.3d at 20. He only had to demonstrate that the protected speech of other hypothetical defendants might be chilled if they remained under threat of prosecution for online solicitation. Id. at 19. Because of the unusual position of petitioners like Lester—convicted of violating an unconstitutional statute but unable to demonstrate the Constitution protects their behavior—there is vigorous disagreement on the CCA about whether these petitioners, including Lester, should ever have had their sentences vacated. See Ex parte Lester , 2018 WL 1736686, at *2 (Yeary, J., concurring) (disagreeing "with the Court's decision to grant relief on that basis" because "the applicant should first demonstrate that the statute was applied unconstitutionally in his case."); Fournier , 473 S.W.3d at 805 (Yeary, J., joined by Keller, C.J., dissenting) ("Applicants today have made no showing that the statute that we struck down in Lo was unconstitutional as it applied to their conduct. Without such a showing, I am reluctant to extend to them the benefit of a retroactive application of Ex parte Lo ."). Because Lester's habeas relief was based on First Amendment overbreadth, there is no reason to think his actions were constitutionally protected and no basis to compare his situation to that of a person "convicted" of the non-crime of walking down the street.

* * *

As the Court interprets the Tim Cole Act, the Legislature has done something quite surprising. It has decided to pay people who admit to committing acts the Legislature itself deemed criminal. By invoking the "actual-innocence" standard from habeas corpus law, however, the Legislature attempted to make sure this very outcome would not occur. The Court's decision today skirts around the statutory text, deviates from prior decisions of this Court and the CCA, and misapprehends the effect of judicial declarations of a statute's unconstitutionality. We should apply the statute exactly as written and deny Lester's petition.

I respectfully dissent.