Opinion

Edmund Bryan Heimlich v. State of Texas, by and Through Greg Abbott, the Attorney General

Court
Texas Court of Appeals, 3rd District (Austin)
Filed
Jan 30, 2003
Status
Published
Cited by
0 cases
Authority
More cited than 36.0%

The opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00151-CV

Edmund Bryan Heimlich, Appellant

v.

State of Texas, by and through Greg Abbott, the Attorney General, (1) Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT

NO. GN100142, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

O P I N I O N

Edmund Brian Heimlich appeals the summary judgment denying his request for

damages due to wrongful imprisonment. We will affirm the judgment in part, reverse the judgment

in part, and remand the cause for further proceedings.

BACKGROUND

Heimlich was convicted of theft and was sentenced to four years in prison. Heimlich

v. State , 988 S.W.2d 382, 382 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd). After serving

some of his sentence, (2) he was awarded shock probation. See id . at 382 n.2. A court of appeals

reversed his conviction and rendered a judgment of acquittal based on legal insufficiency of the

evidence. Id. at 385 . The court concluded that he could not have committed theft of a check as

charged because he was the owner of the check. Id .

Heimlich sued for compensation under constitutional and statutory provisions. He

cited several constitutional provisions that he claimed were violated. See Tex. Const. art. I, §§ 1,

2, 3, 9, 10, 16, 17-19, 28, & 30(2), art. III, § 51-c. He also sought relief under the statutory provision

for compensation for wrongful imprisonment. See Tex. Civ. Prac. & Rem. Code Ann. § 103.001

(West Supp. 2003). He asserted in his amended petition that, despite the revision of the statute by

the 2001 Legislature, his petition was brought under the pre-revision code.

The State moved for summary judgment. Noting Heimlich's insistence on bringing

the action under the old code, the State moved for summary judgment based on his failure to show

that he had "received a full pardon for the crime and punishment for which he was sentenced" as

required by the former statute. See Act of May 28, 1965, 59th Leg., R.S., ch. 507, § 2(d) 1965 Tex.

Gen. Laws 1022 (recodified 1973, amended 2001) (current version at Tex. Civ. Prac. & Rem. Code

Ann. § 103.001 (West Supp. 2003)). The State attached a copy of the letter from the Board of

Pardons & Paroles stating that "the Theft offense cannot be pardoned because there is no

conviction." The State moved for summary judgment against Heimlich's constitutional claims on

grounds that persons may seek only injunctive relief, not monetary damages, for violations of

constitutional provisions, citing Beaumont v. Bouillion , 896 S.W.2d 143, 148-49 (Tex. 1995). The

State quoted language from a case noting a limited exception to this general rule regarding article

I, chapter 17 of the Texas Constitution. See Ho v. University of Tex. at Arlington , 984 S.W.2d 672,

687 (Tex. App.--Amarillo 1998, pet. denied); see also Tex. Const. art. I, § 17.

Heimlich opposed the motion, contending that the constitution requires the courts to

remain open and that he had a common-law right to enforce the bill of rights. He argued that the

requirement of a full pardon was not mandatory.

The district court granted the State's motion for summary judgment.

DISCUSSION

Heimlich appeals, contending that the district court placed form over substance, that

section 103.001 is an unconstitutional limitation on his right to recover under article III, section 51-c

of the Texas Constitution, that he met the substance of the requirement of a full pardon by showing

he was acquitted of the offense, and that an element of the State's motion was defeated by its own

admission that a monetary remedy existed for violations of the takings clause of the Texas

constitution, article I, section 17. He also contends that the confiscation of the funds from the

disputed check constitutes an illegal tax. He finally complains that the court did not allow him

sufficient time for discovery.

Because these complaints overlap, we will consider them together as they apply to

the various asserted grounds for recovery. Because the summary judgment was based on questions

of law, we review the trial court's decision de novo. See Fulton v. Associated Indem. Corp. , 46

S.W.3d 364, 366 (Tex. App.--Austin 2001, pet. denied).

Constitutional complaints

Heimlich correctly notes that the supreme court acknowledged in Bouillion , and the

State agrees, that actions for monetary recovery exist under the takings clause. Id . at 149 ("The text

of section 17 waives immunity only when one seeks adequate compensation for property lost to the

State."); see also Tex. Const. art. I, sec. 17. The district court accordingly erred by granting

summary judgment against Heimlich's section 17 claim based on the State's assertion that the Texas

Constitution does not, as a matter of law, support claims for monetary damage.

None of Heimlich's other claims for damages from constitutional violations survives.

His arguments do not overcome the supreme court's analysis that the Texas Constitution does not

generally provide for a right of monetary recovery. See Bouillion , 896 S.W.2d at 148-49 . (3) He does

not point to authority for monetary damages based on constitutional violations other than those

involving article I, chapter 17. Heimlich argues that he can recover under article III, section 51-c,

which provides as follows:

The Legislature may grant aid and compensation to any person who has heretofore

paid a fine or served a sentence in prison, or who may hereafter pay a fine or serve

a sentence in prison, under the laws of this State for an offense for which he or she

is not guilty, under such regulations and limitations as the Legislature may deem

expedient.

Tex. Const. art. III, § 51-c. This section plainly makes the provision of aid and compensation

optional and contingent on Legislative action. Thus, this section does not create an absolute,

independent constitutional right to monetary recovery.

Statutory provision

The Legislature has exercised its constitutional authority to create a system whereby

wrongfully imprisoned persons might be compensated under limitations it deems expedient. See

Tex. Const. art. III, § 51-c; Tex. Civ. Prac. & Rem. Code Ann. §§ 103.001 -.154 (West 1997 & Supp.

2003). Although Chapter 103 was extensively revised in 2001 before the State's summary-judgment

motion was filed, Heimlich insisted at trial that he was proceeding under Chapter 103 as it stood

before the amendments. The State's motion for summary judgment addresses only the grounds

under the former statute.

On appeal, Heimlich argues that the district court erred by granting summary

judgment against his claims because the court of appeals reversed his conviction on grounds that he

did not commit a crime; he is thereby essentially claiming that he has "been granted relief on the

basis of actual innocence of the crime." Receiving relief based on actual innocence is an additional

basis for compensation under the amended statute. See Tex. Civ. Prac. & Rem. Code Ann.

§ 103.001 (a)(2)(B) (West Supp. 2003). The amended statute applies to this case because the

Legislature specified that the amendments apply to all actions "pending on that effective date and

in which the trial, or any new trial or retrial following motion, appeal, or otherwise begins on or after

that effective date." Act of May 26, 2001, 77th Leg., R.S., ch. 1488, § 4(a)(2), 2001 Tex. Gen. Laws

5280 , 5284. There is no provision for electing to proceed under the former statute. See id . The

statute was effective June 15, 2001. See id . The State filed its motion for summary judgment on

November 29, 2001, and the court granted that motion on January 8, 2002. Thus, despite surplusage

in Heimlich's pleadings to the contrary, the amended statute applies because trial in this case had not

begun on the effective date of the amendment. See id . Moreover, Heimlich's pleadings are

sufficient to state a claim under the amended statute. Accordingly, we conclude that the district court

erred by granting summary judgment against his claim for recovery under section 103.001.

CONCLUSION

Having considered all of Heimlich's complaints, we reverse the summary judgment

granted against Heimlich's claims for compensation under article I, section 17 of the Texas

Constitution and under Texas Civil Practice and Remedies Code section 103.001. We affirm the

summary judgment in all other respects. We remand the cause for further proceedings.

Bea Ann Smith, Justice

Before Justices Kidd, B. A. Smith and Yeakel

Affirmed in Part; Reversed and Remanded in Part

Filed: January 30, 2003

1. This cause was originally filed against the previous attorney general of Texas, John Cornyn.

Greg Abbott has succeeded Cornyn as attorney general and is automatically substituted as a party

in this cause. See Tex. R. App. P. 7.2(a).

2. Heimlich alleges without controversion that he served five months in prison.

3. The supreme court notes that we must consider the constitution in light of the

contemporaneous legal climate, and also notes that sovereign immunity has been cited as support

for the absence of a right to seek monetary damages for constitutional violations. See Bouillion , 896

S.W.2d at 148 . Sovereign immunity was recognized by the supreme court of the Republic of Texas.

Board of Land Comm'rs v. Walling , Dall. 524, 525-26 (Tex. 1843). Sovereign immunity was also

recognized early in statehood. Hosner v. DeYoung , 1 Tex. 764, 769 (1847).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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