                                                                                      ACCEPTED
                                                                                 03-14-00739-CV
                                                                                        3701562
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                             1/8/2015 3:29:37 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK

                             No. 03-14-00739-CV
                                                                FILED IN
                                                         3rd COURT OF APPEALS
                     In the Court of Appeals                 AUSTIN, TEXAS
                 Third District of Texas — Austin        1/8/2015 3:29:37 PM
                                                           JEFFREY D. KYLE
                                                                 Clerk

           EX PARTE ROBERT BURNS SPRINGSTEEN IV,
                         Appellant

        Appealed from the 353rd District Court, Travis County, Texas
     Cause No. D-1-GN-14-001847; Before the Honorable Darlene Byrne


                       APPELLANT’S BRIEF

Charles F. Baird                       Broadus A. Spivey
Texas Bar No. 00000045                 Texas Bar No. 00000076
Amber Farrelly                         LAW OFFICES OF BROADUS A. SPIVEY
Texas Bar No. 24069671                 3303 Northland Drive, Suite 205
BAIRD☆FARRELLY CRIMINAL DEFENSE        Austin, Texas 78731
2312 Western Trails Blvd Ste. 102-A    Tel. 512-474-6061
Austin, TX 78745                       Fax 512-474-1605
Tel. 512-804-5911                      bas@spivey-law.com
jcfbaird@gmail.com adfelaw@gmail.com

James W. Hackney
Texas Bar No. 08671000
LAW OFFICES OF JIM HACKNEY
5109 McDade Dr.
Austin, TX 78735
Tel. 512-422-3956
Fax 512-233-0764
jim@jameshackneylaw.com

           Attorneys for Appellant, Robert Burns Springsteen IV

                   ORAL ARGUMENT REQUESTED
                           No. 03-14-00739-CV

             EX PARTE ROBERT BURNS SPRINGSTEEN IV,

                                Appellant

 ________________________________________________________________

                 IDENTITY OF PARTIES & COUNSEL
 ________________________________________________________________

Robert Burns Springsteen IV, Appellant

     Broadus A. Spivey
     Texas Bar No. 00000076
     LAW OFFICES OF BROADUS A. SPIVEY
     3303 Northland Drive, Suite 205
     Austin, Texas 78731
     Tel. 512-474-6061 Fax 512-474-1605
     bas@spivey-law.com

     James W. Hackney
     Texas Bar No. 08671000
     LAW OFFICES OF JIM HACKNEY
     5109 McDade Dr.
     Austin, TX 78735
     Tel. 512-422-3956
     jim@jameshackneylaw.com

     Charles F. Baird
     Texas Bar No. 00000045
     Amber Farrelly
     Texas Bar No. 24069671
     BAIRD☆FARRELLY CRIMINAL DEFENSE
     2312 Western Trails Blvd Ste. 102-A
     Austin, TX 78745
     Tel. 512-804-5911
     jcfbaird@gmail.com
     adfelaw@gmail.com

                                    2
Rosemary Lehmberg, Travis County District Attorney, Appellee

     Patrick M. Kelly
     Texas Bar No. 11228000
     Pat.kelly@co.travis.tx.us

     Andrew M. Williams
     Texas Bar No. 24068345
     Andrew.williams@co.travis.tx.us

     Sherine E. Thomas
     Texas Bar No. 00794734
     Sherine.thomas@co.travis.tx.us

     County Attorney, Travis County
     P. O. Box 1748
     Austin, Texas 78767
     Tel. 512-854-9513
     Fax 512-854-4808




                                       3
                                    TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL ...................................................... 2

INDEX OF AUTHORITIES.......................................................................... 5

STATEMENT OF THE CASE...................................................................... 8

STATEMENT ON ORAL ARGUMENT ..................................................... 8

ISSUES PRESENTED................................................................................... 9

STATEMENT OF FACTS .......................................................................... 10

SUMMARY OF THE ARGUMENT .......................................................... 12

ARGUMENT ............................................................................................... 14

   Issue 1: The trial court erred when it granted a plea to the jurisdiction
   because sovereign immunity does not bar Appellant’s action. .............. 14

   Issue 2: The trial court erred when it granted the plea to the jurisdiction
   because Appellant presented justiciable issues. ...................................... 16

   Issue 3: The trial court erred when it granted the plea to the jurisdiction
   because the Open Courts Provision of the Texas Constitution provides
   jurisdiction over Appellant’s action. ....................................................... 31

   Issue 4: The trial court erred when it granted the plea to the jurisdiction
   because Appellant was not seeking a civil court determination of a criminal
   issue, but rather was properly seeking a civil court’s construction of a civil
   statute. ...................................................................................................... 33

   Issue 5: The trial court erred when it granted the plea to the jurisdiction
   because Appellant’s state court action was not barred by his earlier federal
   action. ....................................................................................................... 36

PRAYER ...................................................................................................... 39

CERTIFICATE OF SERVICE .................................................................... 40

APPENDIX .................................................................................................. 41

                                                      4
                                    INDEX OF AUTHORITIES

                                                    CASES
Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) ................. 37

Arendt v. Carter, 210 S.W.2d 976 (Tex. 1948) ........................................... 20

Autoflex Leasing, Inc. v. Manuf. Auto Leasing, Inc., 16 S.W.3d 815
  (Tex.App.—Fort Worth 2000, pet. denied) ............................................. 38

Bd. of Regents of State Colleges v. Roth, 400 U.S. 564 (1972). .................. 29

Brennan v. City of Willow Park, 376 S.W.3d 910 (Tex.App.—Fort Worth
  2012, pet. denied) ....................................................................... 15, 17, 34

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ......................... 16

City of Longview v. Head, 33 S.W.3d 47 (Tex.App.—Tyler 2000, no pet.).34,
  38

City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008). ......................... 23

City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003) ............ 23

Coffin v. United States, 156 U.S. 432 (1895) .............................................. 26

Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006) ......................... 22

Ex parte Kerr, 64 S.W.3d 414 (Tex.Crim.App. 2002). ............................ 19

Ex parte Powell, 558 S.W.2d 480 (Tex.Crim.App. 1977)........................... 19

Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002) ........................... 21

Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863 (Tex. 2009)
  ................................................................................................................. 23

Harrington v. Richter, 131 S.Ct.770 (2011). .............................................. 19

Hinojosa v. Tarrant County, 355 S.W.3d 812 (Tex.App.—Amarillo 2011, no
  pet.) .......................................................................................................... 37
                                                         5
In re House, 65 S.W.3d 694 (Tex.App.—Amarillo 2001, no pet.). ............ 19

In re Smith, 333 S.W.3d 582 (Tex. 2011) .................................................... 21

In re Winship, 397 U.S. 358 (1970) ............................................................. 26

LeCroy v. Hanlon, 713 S.W.2d 335 (Tex. 1986) ................................... 31, 32

McAllen Hospitals, L.P. v. Suehs, 426 S.W.3d 304 (Tex. App.—Amarillo 2014,
  no pet.) .................................................................................................. 29

Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984). ......................................... 32

Paul v. Davis, 424 U.S. 693 (1976) ............................................................ 28

State v. Morales, 869 S.W.2d (Tex. 1994) .................................................. 34

State v. Oakley, 227 S.W.3d 58 (Tex. 2007) ............................................... 21

State ex. rel. Abbott v. Young, 265 S.W.3d 697 (Tex.App.—Austin 2008, pet.
   denied) ..................................................................................................... 21

Stratton v. Austin Ind. Sch. Dist., 8 S.W.3d 26 (Tex.App.—Austin 1999, no
   pet.) .......................................................................................................... 29

Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993)27

Texas Lottery Comm’n, 325 S.W.3d 628 (Tex. 2010) ................................. 23

Trantham v. Isaaks, 218 S.W.3d 750 (Tex.App.—Fort Worth 2007, pet.
  denied) ............................................................................................... 30, 38

Wieman v. Updegraff, 344 U.S. 183 (1952) ................................................ 28

Wiley v. Spratlan, 543 S.W.2d 249 (Tex. 1976) .......................................... 20

Wisconsin v. Constantineau, 400 U.S. 433 (1971) ...................................... 29



                                           CONSTITUTION
Tex. Const. art. I, §13 .................................................................................. 31

                                                         6
                                             STATUTES
TEX. CIV. PRAC. & REM. CODE ANN. § 103.001(c)
  ................... 8, 12, 13, 15, 16, 17, 18, 20, 24, 25, 26, 27, 28, 29, 30, 33, 38

TEX. CIV. PRAC. REM. CODE ANN. § 37.002 .......................................... 30, 38

TEX. CIV. PRAC. REM. CODE ANN. §37.004 ........................................... 17, 34

                                                RULES
Tex. R. App. P. 38.......................................................................................... 8

Tex. R. App. P. 39.......................................................................................... 8




                                                     7
                        STATEMENT OF THE CASE
  Appellant sought a declaratory judgment that he was entitled to compensation

under TEX. CIV. PRAC. & REM. CODE § 103.001 for his time spent wrongfully

imprisoned from 2001-2009. Clerk’s Record 298-99 [hereinafter C.R.]. Appellee

filed a plea to the jurisdiction. C.R. 263. Following oral argument and a bench

hearing, the judge granted Appellee’s plea to the jurisdiction and dismissed the

case with prejudice on October 16, 2014. C.R. 526.




                   STATEMENT ON ORAL ARGUMENT
  The Court should grant oral argument for the following reasons:

       a.   The issues presented have not previously been authoritatively decided.

            See Tex. R. App. P. 39.1(b).

       b.   Oral argument will give the Court a more complete understanding of

            the facts presented in this appeal. See Tex. R. App. P. 39.1(c).

       c.   Oral argument will allow the Court to better analyze the complicated

            legal issues presented in this appeal. See Tex. R. App. P. 39.1(c).

       d.   Oral argument will significantly aid the Court in deciding this case.

            See Tex. R. App. P. 38.1(e), 39.1(d).



                                        8
                     ISSUES PRESENTED FOR REVIEW
  Issue 1: The trial court erred by concluding that it lacked subject-matter
jurisdiction over Petitioner’s action because Petitioner’s action was not barred by
sovereign immunity.

  Issue 2: The trial court erred by concluding that it lacked subject-matter
jurisdiction over Petitioner’s action because Petitioner’s claim presented justiciable
issues which the Court had power to decide under the Declaratory Judgments Act.

  Issue 3: The trial court erred by concluding that it lacked subject-matter
jurisdiction over Petitioner’s action because Petitioner established jurisdiction
under the Open Courts Provision of the Texas Constitution.

  Issue 4: The trial court erred by concluding that it lacked subject-matter
jurisdiction over Petitioner’s action because Petitioner was not asking for a civil
court to rule on a criminal matter, but rather was seeking a civil court’s
interpretation of a civil statute.

  Issue 5: The trial court erred by concluding that it lacked subject-matter
jurisdiction over Petitioner’s action because Petitioner’s action was not in any way
barred by his earlier federal court action.




                                          9
                            STATEMENT OF FACTS
      On June 21, 2001, a Travis County jury convicted Appellant for the murder

of four young girls in what came to be known as the “Yogurt Shop Murders.” C.R.

427. Appellant was sentenced to death. Id. Appellant was convicted without any

physical evidence linking him to the crime, and the primary evidentiary bases for

his conviction were his confession and the confession of one of his alleged

accomplices, Michael Scott. Id. In June 2005, Appellant’s death sentence was

commuted by the Governor of the State of Texas on the basis of Roper v. Simmons

because he was less than 18 years old at the time the crime was committed. Id.

      On May 24, 2006, Appellant’s conviction was overturned by the Texas

Court of Criminal Appeals on the grounds that the use of Michael Scott’s

confession at trial constituted a violation of Appellant’s constitutional rights under

the Confrontation Clause. Id. at 241, 246. The case was remanded to the District

Court, and Appellant remained imprisoned while awaiting the new trial. Id. at 427.

      In March of 2008, results from a previously-unavailable DNA test

conclusively established that the DNA found on the body of one of the victims

indisputably contracted Appellant’s alleged confession to the crime and the

prosecution’s theory of the case. Id. at 435. Those DNA results showed that

someone other than Appellant and his three alleged accomplices had committed the

crime. Id. That person remains unidentified today. Id. The DNA tests and results
                                         10
were obtained not by the defendant, but by the State of Texas. Id. at 27.

      On June 24, 2009, Appellant was released from jail on a personal bond

pending a new trial. Id. at 6. Appellant was imprisoned for nearly nine years, four

of which were spent on death row. Id. at 5-6. The District Attorney for Travis

County filed a motion to dismiss all charges against Appellant and Michael Scott

on October 28, 2009. Id. at 27-28. The District Court granted that motion and

dismissed the charges against Appellant. Id. at 29.

      Appellant filed his declaratory judgment action in the Travis County District

Court on December 10, 2013. Id. at 3-8. On October 16, 2014, a plea to the

jurisdiction was granted against Appellant, and the action was dismissed with

prejudice. Id. at 526. Appellant here brings his appeal from that dismissal.




                                         11
                       SUMMARY OF THE ARGUMENT
  Appellant’s first point challenges the trial court’s conclusion that the trial court

lacked subject-matter jurisdiction over Appellant’s action on the ground that his

action was barred by sovereign immunity.         Appellant sought the trial court’s

construction of a statute, which constitutes a waiver of sovereign immunity under

Texas case law. Furthermore, Appellant named Rosemary Lehmberg, the state

officer claiming sovereign immunity, as an interested party rather than as a

defendant. Therefore, Appellant was not suing the state and sovereign immunity is

not implicated in this action.

  Appellant’s second point is that the trial court erred when it concluded that it

lacked jurisdiction over Appellant’s claim on the ground that Appellant failed to

present a justiciable issue which the Court had power to decide under the

Declaratory Judgments Act. Appellant sought a declaration of his rights under

TEX. CIV. PRAC. & REM. CODE § 103.001, a declaration of his status of actual

innocence under the terms of that statute, and the opportunity to vindicate his due

process rights to property in his right to compensation under the statute and his

reputation.

  Appellant’s third point further disputes the trial court’s conclusion that it lacked

jurisdiction over Appellant’s action. Appellant argues that jurisdiction exists over

this action under the Open Courts Provision of the Texas Constitution. That
                                         12
provision provides a remedy in Texas Courts for every person who has suffered an

injury to his reputation or property. Appellant has not been afforded a judicial

remedy to vindicate his compensation interest under the statute or to repair the

reputation damage caused by his wrongful conviction and subsequent

imprisonment.

  Appellant’s fourth point challenges the trial court’s conclusion that it lacked

jurisdiction over Appellant’s action on the ground that a civil court cannot make a

determination on a criminal matter. Appellant argues that this conclusion was

incorrect because Appellant did not seek a determination of a criminal matter from

a civil court, but rather sought the trial court’s interpretation of his rights under

TEX. CIV. PRAC. & REM. CODE § 103.001, which is a civil statute.

  Appellant’s last point is that the trial court erred in deciding that Appellant’s

action was barred by his earlier declaratory action in federal court. Appellant’s

federal court action was dismissed without prejudice for a lack of jurisdiction

based on issues relating to the power of federal courts which do not apply to Texas

state courts. Therefore, the federal court action does not affect the trial court’s

jurisdiction over Appellant’s state court action.




                                          13
                        ARGUMENT & AUTHORITIES

I. The trial court erred when it granted the plea to the jurisdiction because

sovereign immunity does not bar Appellant’s action.

      The trial court was not barred from exercising jurisdiction over Appellant’s

action by sovereign immunity. Sovereign immunity was not implicated because

Appellant did not bring this suit against a political subdivision of the state, whether

it be the Travis County District Attorney’s office or any other. C.R. 201. Appellee

was added as an interested party, not as a defendant. Id.

      When Appellant filed his first amended request with the trial court on

February 19, 2014, he forwarded a courtesy copy of that pleading to Appellee as a

party in interest via the e-file email system. Id. at 198-201. When Appellant did

not receive a response or an acknowledgement that Appellee had received the

amended petition, he then had Appellee served in order to ensure that as a party in

interest she had the most recent pleading, given her interest and appearance in the

case after Appellant’s original petition, namely her filings with the trial court and

with the Court of Criminal Appeals. Id. at 198-201. On the request for service,

Appellant clearly indicated on the style “Robert Burns Springsteen, IV – EX

PARTE vs. Rosemary Lehmberg – INTERESTED PARTY.” Id. at 211. When the

citation was delivered to Appellee, that clarifying language in the style apparently

was not communicated, although Appellant clearly stated within the petition that
                                          14
Appellee had not been – and has not been – sued. The status and parties in

Appellant’s case should not be determined based on a form letter issued by the

Texas e-file system. Appellee is an interested party in this action, but she is not a

Defendant.

      Appellant has never entertained the notion of pursuing a writ of prohibition,

an injunction, or any other legal proceeding to stay any potential future criminal

proceedings or grand jury actions. Accordingly, sovereign immunity does not bar

Appellant’s action because it is not implicated under these facts.

      Sovereign immunity does not bar Appellant’s action because sovereign

immunity has been waived under these circumstances. Texas courts have held that

when a governmental entity is a party to a declaratory judgment action that is

brought seeking statutory interpretation, sovereign immunity is waived. Brennan v.

City of Willow Park, 376 S.W.3d 910, 922 (Tex.App. –Fort Worth 2012, pet.

denied). Sovereign immunity is waived in this case because Appellant is neither

suing the state on a theory of liability nor bringing a suit in an attempt to recover

money damages. Appellant is seeking a declaration of legal innocence and a

clarification of his rights as construed under TEX. CIV. PRAC. & REM. CODE §

103.001. The DJA allows courts to declare relief by construing statutes whether or

not further relief is or could be claimed. Id.

      Appellee's and the state’s immunity are waived in this case even if the trial
                                           15
court’s declaration of Appellant’s innocence ultimately resulted in Appellant’s

recovery of the compensation he is owed under TEX. CIV. PRAC. & REM. CODE

§103.001. If the trial court were to grant Appellant’s request for a hearing on a

declaratory judgment action and therefore later require the Comptroller to issue

payment to Appellant, the State’s immunity would be waived then as well. The

Texas Supreme Court has held that suits to require State officials to comply with

statutory or constitutional provisions are not prohibited by sovereign immunity,

even if a declaration to that effect compels the payment of money. City of El Paso

v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).

      Appellant has not challenged the constitutionality of TEX. CIV. PRAC. &

REM. CODE § 103.001. Appellant requested a clarification – an interpretation – and

affirmation of his rights under the statute, namely that he is actually innocent under

the law. If he is determined to be “actually innocent,” he is entitled to the

compensation he is due as a matter of law.



II. The trial court erred when it granted the plea to the jurisdiction because

Appellant presented justiciable issues.

      The trial court does not lack subject-matter jurisdiction over Appellant’s

action because Appellant presented justiciable issues which were within the power

of the trial court to grant relief. Specifically, Appellant sought the trial court’s
                                          16
construction of § 103.001, a declaration of his rights under that statute, a

declaration of legal innocence, and a forum in which to litigate his property rights

to compensation and to his reputation. C.R. at 430-31.



      A. Appellant presented a justiciable issue by seeking a trial court’s

         construction of a civil statute through a declaratory action.

      Appellant presented a justiciable issue by requesting the trial court’s

construction of § 103.001. Texas courts have held that a party may bring an action

under the Declaratory Judgments Act to obtain a declaration of his rights under a

statute. Brennan v. City of Willow Park, 376 S.W.3d 910 (Tex.App.—Fort Worth

2012, pet denied); TEX. CIV. PRAC. & REM. CODE ANN. § 37.004. TEX. CIV. PRAC.

& REM. CODE § 103.001 provides as follows:

      (a) A person is entitled to compensation if:
            (1) the person has served in whole or in part a sentence in
                prison under the law of this state; and
            (2) the person:
                   (A) has received a full pardon on the basis of innocence
                       for the crime for which the person was sentenced;
                   (B) 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; or
                   (C) has been granted relief in accordance with a writ of
            habeas
                       corpus and:
                          (i) the state district court in which the charge
                              against the person was pending has entered an
                                        17
                             order dismissing the charge; and
                         (ii) the district court’s dismissal order is based on a
                             motion to dismiss in which the state’s attorney
                             states that no credible evidence exists that
                             inculpates the defendant and, either in the
                             motion or in an affidavit, the state’s attorney
                             states that the state’s attorney believes that the
                             defendant is actually innocent of the crime for
                             which the person was sentenced.

      Appellant served nearly nine years in prison under Texas law, and

indisputably meets the requirements of § 103.001(a)(1). Appellant does not argue

that he is entitled to compensation under § 103.001(a)(2)(A) because he never

received a pardon. Instead, Appellant argues that he is entitled to compensation

because he has functionally met the requirements of (a)(2)(B) and (a)(2)(C).



      1. Appellant presented a justiciable issue when it sought the court’s

         construction of § 103.001(a)(2)(B) and a declaration of his

         entitlement to compensation under that provision.

      Appellant requested that the trial court provide its construction of §

103.001(a)(2)(B), arguing that he was entitled to compensation under (a)(2)(B)

because he “has been granted relief in accordance with a writ of habeas corpus”

and can demonstrate his actual innocence.       Appellant sought the trial court’s

determination that he falls within the parameters of § 103.001(a)(2)(B).

      The purpose of a writ of habeas corpus is to obtain a speedy and effective
                                         18
adjudication of a person’s right to liberation from illegal restraint. Ex parte Kerr,

64 S.W.3d 414, 419 (Tex.Crim.App. 2002). The spirit of the habeas corpus statute

is the intent to prevent a prisoner’s unconstitutional incarceration, and it stands as a

safeguard against imprisonment of those held in violation of the law. Harrington v.

Richter, 131 S.Ct.770, 780 (2011). In operation, a Court of Criminal Appeals

reversal accomplishes the same. The Court of Criminal Appeals in this case

reversed Appellant’s conviction on constitutional grounds, which is effectively the

same as if Appellant had been granted a writ of habeas corpus because of

imprisonment in violation of the law. In either case, a prisoner would be released

because his conviction and imprisonment were constitutionally untenable, as

Appellant’s was.

      While habeas corpus may be used to challenge any unlawful restraint, it may

not be used as a substitute for an appeal. Ex parte Powell, 558 S.W.2d 480

(Tex.Crim.App. 1977). Texas law holds that when an individual has available to

him a remedy other than a writ of habeas corpus – such as a direct appeal – he is

obligated to exhaust that remedy first, and the appellate court should not exercise

its discretionary authority to issue a writ of habeas corpus. In re House, 65 S.W.3d

694, 695 (Tex.App.—Amarillo 2001, no pet.). Appellant was required under the

law to file a direct appeal before filing any petition for a writ of habeas corpus,

despite the fact that the process of that appeal and the subsequent reversal and
                                          19
pending retrial took over eight years. The habeas corpus statute contemplates the

prevention of lengthy incarcerations for those who may be held on unconstitutional

grounds, the purpose of the writ being to obtain speedy adjudication of a person’s

right to liberation from illegal restraint. Arendt v. Carter, 210 S.W.2d 976, 977

(Tex. 1948). Appellant spent five years in prison during an extremely lengthy

direct appeal before the Court of Criminal Appeals held that his conviction was

based on unconstitutional grounds and reversed in 2006. C.R. at 60. Appellant

remained incarcerated for several more years while waiting for a retrial – one that

ultimately never came – until the Travis County judge ordered him released on

bond pending such retrial in 2008. Id. In drafting the Tim Cole Act, the legislature

did not contemplate the unreasonable length of a direct appeal such as Petitioner’s.

         The phrase “in accordance with” has been interpreted by the Texas Supreme

Court to mean “commensurate with.” Wiley v. Spratlan, 543 S.W.2d 249, 351

(Tex. 1976). Section 103.001(a)(2)(B) and (C) require that relief be granted “in

accordance with” a writ of habeas corpus, which means that relief must be granted

commensurate with, in agreement with, or in conformity with a writ of habeas

corpus. The relief provided by a Court of Criminal Appeals reversal of conviction

is, by definition, in accordance with a writ of habeas corpus. Both accomplish the

same goal – releasing from prison a person who constitutionally should not be

there.
                                         20
      The wrongfully imprisoned have not always been entitled to state

compensation; the common law provided no recourse for the innocent. State v.

Oakley, 227 S.W.3d 58, 62 (Tex. 2007). In 1965, the Texas legislature enacted the

first wrongful imprisonment compensation statute under the penal code, and later,

this statute was moved to the Civil Practice & Remedies Code and revised several

times until it became the Chapter 103 that it is today. In re Smith, 333 S.W.3d 582,

585 (Tex. 2011). Originally, the penal code statute required a pardon from the

governor to show proof of innocence; this was later revised to include a more

relaxed standard, allowing a claimant to receive compensation if they had served

all or part of a prison sentence and either received a full pardon on the basis of

innocence or had been granted relief on the basis of actual innocence.

      The legislature’s use of the phrase “has been granted relief based on actual

innocence,” in the context of Texas jurisprudence, has generally limited § 103

recoveries to claimants obtaining relief from their convictions through habeas

corpus based on actual innocence grounds. State ex. rel. Abbott v. Young, 265

S.W.3d 697, 705 (Tex.App.—Austin 2008, pet. denied). The type of innocence

claim that generally accompanies a writ of habeas corpus is a “bare innocence”

claim, which is a claim made in which the applicant claims there is new evidence

that shows, clearly and convincingly, that no juror would have convicted him. Id.;

Ex parte Tuley, 109 S.W.3d 388, 390 (Tex. Crim. App. 2002). The Court of
                                        21
Criminal Appeals has said that establishing a bare claim of actual innocence is a

“Herculean task” because a person convicted in a fair trial is not permitted to wage

a collateral attack on his conviction without making an exceedingly persuasive

case that he is actually innocent. Ex parte Brown, 205 S.W.3d 538, 545 (Tex.

Crim. App. 2006). To make that case, the person must show by clear and

convincing evidence that, despite the evidence of guilt that supports the conviction,

no reasonable juror could have found the applicant guilty in light of the new

evidence. Id. The DNA evidence that was presented after the reversal of

Appellant’s conviction falls into exactly this category. It shows without a doubt

that at least one other man – who remains unidentified – was responsible for the

crime, and that without a doubt Appellant was not.

      This is evidence that did not exist at the time of the trial and therefore was

not presented; it is new evidence that shows, clearly and convincingly, that no juror

would have convicted him had that knowledge been available at the time.

      For the reasons stated above, Appellant is now able to establish an actual

innocence claim. Other than “confessions” obtained under extreme duress and

improper interrogation, there is absolutely no evidence that Appellant committed

this crime – no physical evidence, no eyewitness evidence, and no circumstantial

evidence. In fact, what evidence the State has in its possession shows without a

doubt that the perpetrator was not Appellant. But for the State’s constitutional
                                         22
violation of Appellant’s rights under the Confrontation Clause at trial and the

Court of Criminal Appeals’ subsequent reversal of Appellant’s conviction,

Appellant would still be imprisoned and therefore be eligible to make a petition for

a writ of habeas corpus. As the matter stands, the Court of Criminal Appeals

rightfully reversed Appellant’s conviction, and fortunately Appellant was able to

escape spending additional wasted years in prison for a crime he did not commit.

The fact that Appellant was fortunate enough to escape further prison time,

however, should not preclude him from receiving the compensation he is due for

the many years he did spend in prison wrongfully.

      Texas appellate courts review issues of statutory construction de novo, and

in construing statutes, the primary objective is to give effect to the Legislature’s

intent. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003);

Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009).

The Court relies on the plain meaning of the text as it expresses legislative intent

unless a different meaning is supplied by legislative definition, is apparent from the

context, or the plain meaning leads to absurd results. Texas Lottery Comm’n, 325

S.W.3d 628, 635 (Tex. 2010); City of Rockwall v. Hughes, 246 S.W.3d 621, 625-

26 (Tex. 2008). The intent of the legislature was to correct the wrong suffered by

prisoners spending years of their lives in prison for crimes someone else

committed. This is exactly Appellant’s circumstance.
                                         23
      The Act provides for compensation to be paid by the state even if the person

wrongfully imprisoned is deceased at the time of pardon. TEX. CIV. PRAC. & REM.

CODE ANN. § 103.001(c). It is illogical and improbable that the legislature would

consider paying compensation to the family of a deceased inmate but intend that it

be denied to a man who functionally complies and “checks all the boxes” required

by the statute but is unable to obtain a writ of habeas corpus because he has finally

been released from prison due to a Court of Criminal Appeals reversal of his

conviction as a result of the State’s own bungling of the case at the trial level.

      When new Y-STR DNA test results released in March of 2008 showed

without a doubt that it was impossible that Appellant had committed the crimes for

which he’d been imprisoned, it was clear at that moment that Appellant was

innocent under the law, despite not having a court who declared the magic words

“actually innocent.” The statute requires “a court finding” of actual innocence.

      The statute does not specify which court must make this determination, nor

does it require any particular court to grant this finding. The DJA grants courts the

authority to clarify and affirm a petitioner’s rights under the statute. Appellant

requested that the trial court exercise its authority to grant Petitioner the relief that

he requests.




                                           24
         2. Appellant presented a justiciable issue when he sought the court’s

             construction of § 103.001(a)(2)(C) and a declaration of his

             entitlement to compensation under that provision.

         As noted in the arguments regarding habeas corpus above, Appellant fits

within the parameters and requirements of the first part of § 103.001(a)(2)(C),

which states that an applicant has been granted relief in accordance with a writ of

habeas corpus.

         Appellant meets the second prong of the statute under § 103.001(a)(2)(C).

Subsection § 103.001(a)(2)(C)(i) has been met. On October 28, 2009, the Travis

County Court granted Ms. Lehmberg’s Motion to Dismiss the charges pending

against Appellant. C.R. 27-29. Subsection § 103.001(a)(2)(C)(ii) has also been

met. In Ms. Lehmberg’s Motion to Dismiss, she stated that DNA tests showed an

unknown male donor was involved in the crime and that the State was continuing

tests in order to identify that donor.                         C.R. 27. In that statement, Appellee

effectively admitted that she had no credible evidence that Appellant had

committed the crime.1 In stating that she had no evidence against Appellant,

Appellee admits that Appellant is innocent under the law.



1
 Appellee actually admitted that she had no evidence against Petitioner in her press release of June 24, 2009. In that
press release, Appellee stated that “[t]he reliable scientific evidence in the case presents one, and one only, unknown
male donor.” C.R. at 375-76.

                                                          25
      If Appellant is refused his declaration of actual innocence by means of

affirmation of his status under § 103.001, the district attorneys of the State of

Texas effectively would be able to frustrate the statute and legislative intent,

circumventing any possibility of a similarly situated and wrongfully imprisoned

person receiving compensation under the Act by merely releasing any possible

applicants pending “further investigation.” Appellant fits under § 103.001(a)(2)(C)

because a Court of Criminal Appeals reversal of conviction is functionally

equivalent to a writ of habeas corpus.

      As everyone in America who has ever watched a television crime drama –

not to mention someone who is a seasoned attorney – knows, an accused person is

presumed innocent until proven to be guilty. The presumption of innocence is an

axiomatic and elementary principle, the enforcement of which lies at the

foundation of the administration of criminal law in America. In re Winship, 397

U.S. 358, 363 (1970); see Coffin v. United States, 156 U.S. 432, 453 (1895).

Appellee has admitted that she has not a shred of evidence whatsoever to tie

Appellant to the crimes for which he spent years in prison. Therefore, by valid

interpretation, under the law Appellant is presumed to be innocent, and Appellee’s

motion to dismiss states as much.




                                         26
      B. Appellant is not seeking an advisory opinion, but rather has properly

          brought a declaratory judgment action to clarify his rights under the

          statute.

      The distinctive feature of an advisory opinion prohibited by law is that it

decides abstract questions of law without binding the parties. Texas Ass’n of Bus.

v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). A request for an

advisory opinion is characterized by seeking a redress for a hypothetical injury

rather than remedying an actual or imminent harm. Id.

      Appellant did not seek an advisory opinion. Appellant sought to have an

affirmation of his status as an actually innocent person under § 103.001 by means

of a declaration of the trial court holding that Appellant qualifies as a person who

is actually innocent. The question – which is not an abstract one – that Appellant

wishes to be determined by the trial court is whether Appellant’s standing is

functionally equivalent to that of someone who has been granted a writ of habeas

corpus.

      Appellant’s injury is very real and not remotely hypothetical. He has spent

nearly 9 years of his life imprisoned for murders he did not commit – a good part

of that time spent in isolation on Death Row – and has now been denied the

compensation that he justly deserves for those wasted years. The trial court’s

interpretation and clarification of § 103.001 would provide remedy for the
                                        27
injustices Appellant has suffered, and that court is authorized to make that call by

virtue of our statutorily created Declaratory Judgments Act.



         C. Appellant presented a jusiciable issue regarding the deprivation of

his property               rights to compensation and his reputation without receiving

an adequate forum in                which to litgate those claims.

         Appellant presented a justiciable issue by requesting a forum in which to

litigate his property right to compensation under the statute and his property right

to his reputation. Appellant can demonstrate that he is entitled to compensation

under § 103.001, and can demonstrate that he is "actually innocent" and thereby

vindicate his right to his reputation. Due process demands that Appellant be given

a forum in which to vindicate his property rights.

         The State’s interpretation of the statute is improperly narrow and has

resulted in an unconstitutional deprivation of Appellant’s property right in the

compensation that he is due, as well as having prevented him from effectively

clearing his name and reputation from the taint of over eight years spent

wrongfully imprisoned for murders he did not commit.2 “Where a person’s good


2
 The U.S. Supreme court has held that although reputation alone does not implicate the Due Process Clause, when
coupled with another liberty or property interest due process is implicated. See Paul v. Davis, 424 U.S. 693 (1976).
Even so, “[w]here the State attaches ‘a badge of infamy’ to the citizen, due process comes into play.” Wieman v.
Updegraff, 344 U.S. 183, 191 (1952)

                                                         28
name, reputation, honor, or integrity is at stake because of what the government is

doing to him, notice and an opportunity to be heard are essential.” Wisconsin v.

Constantineau, 400 U.S. 433, 437 (1971). If an individual is deprived of a property

right, the government must afford an appropriate and meaningful opportunity to be

heard consistent with the requirements of procedural due process. McAllen

Hospitals, L.P. v. Suehs, 426 S.W.3d 304 (Tex. App.—Amarillo 2014, no pet.).

         Property interests protected by procedural due process extend well beyond

actual ownership of real estate, chattels or money. Bd. of Regents of State Colleges

v. Roth, 400 U.S. 564, 571-72 (1972). An individual’s property interest is

protected, creating due process rights, if he has a legitimate claim of entitlement

that is created, supported, or secured by rules or mutually explicit understandings.

Stratton v. Austin Ind. Sch. Dist., 8 S.W.3d 26, 29 (Tex.App.—Austin 1999, no

pet.).

         Appellant’s property interest has been created by the legislature’s intent that

the wrongly imprisoned be compensated for the time taken away from them during

which they sat in prison while innocent. Appellant has so far been denied due

process in that he has been afforded no opportunity to have clarified his rights and

status under § 103.001, even though he is equally situated to someone who has

spent years wrongfully in prison and then received either a pardon or received a

writ of habeas corpus. The trial court has the authority to grant Appellant the due
                                            29
process opportunity he requests by interpreting and affirming his rights under §

103.001.

      Appellee has argued that Appellant’s action is not permitted under Texas

law because the DJA cannot be used to declare a person’s guilt or innocence of a

crime. Appellee cited Trantham v. Isaaks, 218 S.W.3d 750 (Tex.App.—Fort Worth

2007, pet. denied) in support of her misplaced argument that Appellant cannot use

the DJA as a vehicle to determine any potential criminal liability. Appellant is not

requesting that the trial court remove any potential future criminal liability. Neither

is Appellant seeking to enjoin Appellee from any future action based on any

criminal prosecution she may wish to pursue. Appellant is requesting a

clarification of his status under § 103.001, which is a civil statute and not a penal

statute as discussed in Trantham. In the very paragraph to which Appellee cites,

the Trantham court held that “[t]he Declaratory Judgments Act [was] a remedial

statute designed to settle and to afford relief from uncertainty and insecurity with

respect to rights, status, and other legal relations.” Trantham v. Isaaks, 218 S.W.3d

at 753; TEX. CIV. PRAC. & REM. CODE ANN. § 37.002(b). Appellant is requesting

exactly this – that his rights and status under § 103.001 be clarified and settled by

means of a declaration that he qualifies as a person actually innocent for the

purposes of the statute. These are rights that Appellant maintains at present

because of the DNA exoneration and the complete lack of any other evidence that
                                          30
he has committed any crime.

III. The trial court erred when it granted the plea to the jurisdiction because

the Open Courts Provision of the Texas Constitution provides jurisdiction

over Appellant’s action.

      The trial court committed error when it granted the plea to the jurisdiction

because Appellant established jurisdiction over his action under the Open Courts

Provision of the Texas Constitution. The Open Courts Provision (Article I, sec.

13) states that "[e]xcessive bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishment inflicted. All courts shall be open, and every

person for an injury done him, in his lands, goods, person or reputation, shall have

remedy by due course of law."

      The Texas Supreme Court in LeCroy v. Hanlon, 713 S.W.2d 335, 329 (Tex.

1986), gave a broad construction to this provision, noting that the language of the

provision indicated the legislature's intent to provide a right of access to the courts

for the vindication of all injuries, including injuries to property and reputation:

       The provision’s wording and history demonstrate the importance of
the right of access to our courts of law. The provision’s wording indicates
the extremely        high value the drafters and ratifiers placed on our right of
access to the courts.      First, the language is mandatory: ‘shall be open’
and ‘shall have remedy by due course of law.’ Further, it is all-inclusive:
‘all’ courts are to be open; ‘for every person’; for all interests, ‘lands’ (real
property), ‘goods’ (personal property),        ‘person’ (body and mind), and
‘reputation’ (good name); at all times, since there      is     no    emergency
exception. This all-inclusive language contrasts with         the      qualifying
                                           31
language used in other sections.

Id. In the present case, Appellant seeks access to the courts for an opportunity to

vindicate his interests to property and his reputation, which falls within the scope

of the Court's interpretation of the Open Courts Provision in LeCroy.

      The Court also pointed out that that "[e]very Texas constitution has

contained an open courts provision with identical wording." Id. “Besides an open

courts provision, every Texas constitution has also included a separate due process

provision.” Id at 341. “The open courts provision must have been intended to

provide rights in addition to those in the due process provision or the former would

be surplusage.” Id.

      “The Open Courts Provision specifically guarantees all litigants the right to

redress their grievances – to use a popular and correct phrase, the right to their day

in court.” Nelson v. Krusen, 678 S.W.2d 918, 921 (Tex. 1984). The constitutional

guarantee of a remedy by due course of law is a substantial right. Id. Appellant has

the right to have his “day in court” and to prove that he functionally fits within the

parameters of the compensation statute, and the Open Courts Provision ensures

that Appellant’s right to be heard is secure. Appellant spent years of his young life

in prison – some in solitary on Death Row – for a crime the state now has

indisputable evidence that he did not commit. The legislature has enacted a statute

specifically for people in Appellant’s situation. The legislature has no power to
                                         32
make a remedy by due course of law contingent on an impossible condition. Id at

921. The Open Courts Provision provided the trial court with jurisdiction over

Appellant’s request for clarification of his rights under the statute.



IV. The trial court erred when it granted the plea to the jurisdiction because

Appellant was not seeking a civil court determination of a criminal issue, but

rather was properly seeking a civil court’s construction of a civil statute.


      The trial court erred when it granted the plea to the jurisdiction, because

Appellant was properly seeking a civil court's construction of a civil statute, and

was not seeking a civil court determination of a criminal matter.

      Despite Appellee's insistence that this matter be categorized as a criminal

one, this is a civil claim – a request for declaratory judgment to determine

Appellant's rights and status under the Tim Cole Act, which is a civil statute and

not part of the penal code, for statutory construction. Petitioner is not requesting a

criminal trial or any binding declaration of criminal law. He requested that the trial

court interpret § 103.001 in light of his circumstances and affirm that it

functionally applies to Petitioner’s situation, thereby making available Petitioner’s

right to compensation. TEX. CIV. PRAC. REM. CODE § 103.001. The trial court has

jurisdiction – and the statutory and constitutional obligation – to interpret and

                                           33
clarify statutes in a declaratory judgment action. Brennan v. City of Willow Park,

376 S.W.3d 910 (Tex.App.—Fort Worth 2012, pet denied); TEX. CIV. PRAC. REM.

CODE ANN. § 37.004.

         In her plea to the jurisdiction, Appellee cited State v. Morales, 869 S.W.2d

941 (Tex. 1994) in support of her position that the trial court had no jurisdiction to

issue the declaratory judgment Appellant requested. C.R. at 316-318. Morales

involved a suit brought to enjoin the enforcement of a criminal statute proscribing

sodomy on grounds that it violated the privacy rights of consenting adults. The

Morales court held that it had no jurisdiction to issue the declaratory judgment

requested because it was not shown that the respondent would engage in the

activity the petitioner sought to enjoin, namely prosecution. There was no showing

that the statute had ever been or would ever be prosecuted or that any property

rights had been impinged. The petitioners in that case could not claim a specific

instance in which their property rights were affected by the statute. Morales is

worlds apart from the issue at hand.

         Appellant does not seek to enjoin the enforcement of any criminal statute.3

He requested that his status be clarified under a civil statute – a statute with a

legislatively-designed purpose to deal with former prisoners and former criminal


3
 Even so, civil courts do have the jurisdiction to address the validity of penal statutes in limited circumstances. City
of Longview v. Head, 33 S.W.3d 47 (Tex.App.—Tyler 2000, no pet.)
                                                          34
matters. Appellant's property rights have been affected in the most egregious way –

almost nine years of his life were spent in a state correctional facility. Further, the

Texas legislature has provided a means for wrongly convicted prisoners in exactly

Appellant's situation to recoup the loss of their property rights and, in a small way,

be repaid for the gross injustice handed to them by the State. The Tim Cole Act is

clearly a civil statute creating a remedy for a person wrongly treated under penal

law. Thus, Appellee's argument that no Texas court has jurisdiction to use a civil

remedy to obviate an action involving penal law is faulty.

      When the Court of Criminal Appeals overturned Appellant's underlying

criminal conviction but stated that the evidence of Petitioner’s guilt was legally

sufficient for a re-trial, the DNA evidence showing without a doubt that someone

else had committed the crime had not yet been released and therefore was not

within the Court of Criminal Appeals’ knowledge. C.R. 11-12. The re-trial that the

Court of Criminal Appeals held the state was entitled to bring never occurred

because the State acknowledged that its only evidence connected to the actual

murderer showed that Appellant did not commit the crime. The State then

voluntarily moved to dismiss the case. This same evidence proves that Appellant is

innocent.

      Appellee cannot continue to rely on the decision by the Court of Criminal

Appeals as justification for some hypothetical future prosecution she may or may
                                          35
not someday bring against Appellant. The statements that Appellee repeatedly

referred to from the Court of Criminal Appeals decision – most specifically, the

statement that the evidence is sufficient for retrial – are now clearly moot because

the State itself has produced the evidence that disproves any case they were going

to bring against Appellant. See, e.g., C.R. 267. Appellant will not be retried for

murder at any time, as Appellee purports, because the State has no evidence that

Appellant committed this crime. The evidence the State has injected into this case

exonerates Appellant without question.

      The evidence shows that Appellant is innocent. Appellant is requesting that

the Court affirm his status under the law.



V. The trial court erred when it granted the plea to the jurisdiction because

Appellant’s state court action was not barred by his earlier federal action.

      The trial court erred when it granted the plea to the jurisdiction because

Appellant's state court action was not barred by his earlier federal action.

Although irrelevant to the matter at hand, Appellant's suit in federal court was

dismissed without prejudice on grounds of jurisdiction completely unrelated to this

action. C.R. 213-14. Appellant's case was dismissed based on three issues, those

being (1) Eleventh Amendment immunity, (2) mandamus, and (3) standing. Id. at

218-26. None of these issues apply to the case at hand.
                                         36
   i. Eleventh Amendment immunity.

   The federal court held that Eleventh Amendment immunity barred Petitioner’s

suit against the State. Id. at 223. That issue is not relevant here because Appellant

has not sued the State. Appellee has been designated as a party in interest, not a

Defendant. Appellant is not suing Appellee on a theory of liability or for damages.

   ii. Mandamus.

   The federal court held that it – as a federal court – did not have authority to

issue a mandamus to a state official. Id. In this case, Appellant has not requested a

mandamus, nor is the issue of mandamus relevant at this point. Therefore, that

issue is not present in this case. Furthermore, even if Appellant had requested a

mandamus, this jurisdictional issue would not be problematic because state courts

are authorized to issue mandamus to state officials. See Anderson v. City of Seven

Points, 806 S.W.2d 791, 793 (Tex. 1991) (“[A] writ of mandamus may issue in a

proper case to correct a clear abuse of discretion by a public official.”); Hinojosa v.

Tarrant County, 355 S.W.3d 812, 816 (Tex.App.—Amarillo 2011, no pet.) (“A

district court possesses mandamus jurisdiction over county officials.”).

   iii. Standing.

   The federal court held that it did not have the authority to redress the wrong

Appellant alleged in his federal complaint, and therefore Appellant failed the

redressability prong of the standing analysis. C.R. at 225-26. In this case, the trial
                                          37
court did have the authority to redress the wrong Appellant alleges because the trial

court has the authority to interpret and properly construe a state statute and clarify

Appellant's right under that statute by declaratory judgment. Trantham v. Isaaks,

218 S.W.3d at 753; TEX. CIV. PRAC. REM. CODE ANN. § 37.002(b). In fact, the

purpose of declaratory judgment is to obtain a clarification of one’s rights. City of

Longview v. Head, 33 S.W.3d 47, 50 (Tex.App.—Tyler 2000, no pet.). In

construing the statue, a court’s primary objective is to give effect to the

legislature’s intent by considering the plain meaning of the enactment, even

looking to the history and purpose of the statute if necessary. Autoflex Leasing, Inc.

v. Manuf. Auto Leasing, Inc., 16 S.W.3d 815, 817 (Tex.App.—Fort Worth 2000,

pet. denied).

   A federal court’s dismissal of Appellant's action for want of jurisdiction should

not be interpreted as a bar to Appellant's ability to bring his request in another

court in Texas. Appellant brought his request to the trial court precisely because

the federal court did not have jurisdiction. The trial court, however, does have that

jurisdiction. Appellant is requesting a clarification and interpretation of § 103.001

and an affirmation of his rights under it. This declaration is well within the trial

court’s power to grant and therefore the trial court has the power to redress the

harm Appellant has suffered. The redressability issue present in the former federal

case is not an issue in the present action.
                                              38
                                      PRAYER
      For the foregoing reasons, Appellant respectfully requests that the judgment

of the trial court in granting a plea to the jurisdiction be reversed, and that the case

be remanded to the trial court for further proceedings.


                                        Respectfully submitted,

                                        ATTORNEYS FOR APPELLANT
                                        ROBERT BURNS SPRINGSTEEN IV

                                        Broadus A. Spivey
                                        Texas Bar No. 00000076
                                        LAW OFFICES OF BROADUS A. SPIVEY
                                        3303 Northland Drive, Suite 205
                                        Austin, Texas 78731
                                        Tel. 512-474-6061 Fax 512-474-1605
                                        bas@spivey-law.com

                                        James W. Hackney
                                        Texas Bar No. 08671000
                                        LAW OFFICES OF JIM HACKNEY
                                        5109 McDade Dr.
                                        Austin, TX 78735
                                        Tel. 512-422-3956
                                        jim@jameshackneylaw.com

                                        Charles F. Baird
                                        Texas Bar No. 00000045
                                        Amber Farrelly
                                        Texas Bar No. 24069671
                                        BAIRD☆FARRELLY CRIMINAL DEFENSE
                                        2312 Western Trails Blvd Ste. 102-A
                                        Austin, TX 78745
                                        Tel. 512-804-5911
                                        jcfbaird@gmail.com adfelaw@gmail.com
                                          39
                                      By: ___________________________
                                            Broadus A. Spivey

                      CERTIFICATE OF COMPLIANCE

       I certify that the computer program used to prepare this document reported
that there are 6,870 words in the pertinent parts of the document, per TRAP
9.4(i)(2).

                                      By: ______________________________
                                            Broadus A. Spivey


                         CERTIFICATE OF SERVICE

      I hereby certify that on January 8, 2015, a true and correct copy of the
foregoing Appellant’s Brief was served on the following counsel of record by the
means indicated:

      Via e-file
      Patrick M. Kelly
      Andrew M. Williams
      Sherine E. Thomas
      Travis County Attorney’s Office
      P.O. Box 1748
      Austin, Texas 78767
      512-854-9512
      512-854-4808
      Pat.kelly@co.travis.tx.us
      Andrew.williams@co.travis.tx.us
      Sherine.thomas@co.travis.tx.us


                                      By: ___________________________
                                                  Broadus A. Spivey



                                        40
                                    No. 03-14-00739-CV

                EX PARTE ROBERT BURNS SPRINGSTEEN IV,

                                            Appellant,

________________________________________________________________

                    APPELLANT’S APPENDIX
________________________________________________________________



                                  LIST OF DOCUMENTS



 Tab A .................... October 16, 2014 Order Granting Plea to the Jurisdiction

 Tab B ................................................................ Texas Constitution art. I, §13

 Tab C ................................... TEX. CIV. PRAC. & REM. CODE ANN. § 103.001

 Tab D .................................... October 28, 2009 State’s Motion for Dismissal

 Tab E .............June 24, 2009 Press Release by Travis County DA Lehmberg

 Tab F ........................... March 3, 2014 Request for Process in Bexar County




                                                 41
TAB

“A”
                                      DC          BK14300 PG526




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                                 CAUSE NO. D-1-GN-14-001847                           8
                                                                                      .....
                                                                                            ~  ~
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                                                                                                   -X:\  c
                                                                                                            ~~
                                                                                        0- =>.
                                                                                       ·...   ~    -    '"0
                                                                                                   -C"'oo     c::
                                                                                            ....              C1J
EX PARTE                                           §              IN THE DISTRICT COUR1f §          .-        ~
                                                                                       Co~                  ,:ii
                                                   §                                    (I>(.)                5,
                                                                                       .ell)       ,._        ;:::
                                                   §                                 t-·:;; w                 "8
ROBERT SPRINGSTEEN, IV                             §              OF TRAVIS COUNTY, T~S o                     ';
                                                   §                                   <I>-
                                                                                       =o                   _e"'
                                                                                       1.1..                c(c(
                                                   §
                                                   §              353RD JUDICIAL DISTRICT

   ORDER GRANTING TRAVIS COUNTY DISTRICT ATTORNEY LEHMBERG'S
                    PLEA TO THE JURISDICTION

       On this day to be heard Travis County District Attorney Rosemary Lehmberg's Plea to

 the Jurisdiction and after considering the pleadings, evidence and arguments of counsel, the

 Court finds the Plea to the Jurisdiction is meritorious and should be GRANTED.

       Therefore, it is ORDERED, ADJUDGED, AND DECREED that Travis County District

Attorney Rosemary Lehmberg' s Plea to the Jurisdiction is in all things Granted.

       IT IS THEREFORE ORDERED that Defendant's Plea to the Jurisdiction is in all things

 GRANTED and this cause is DISMISSED with prejudice to there-filing of the same.




       SIGNED this       (   b   day of    ()   <'-:\n(o e { , 2014.




                                                PRESIDING JUDGE           U




                                                                  526
TAB

“B”
Texas Constitution, Article I, Section 13:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel or
unusual punishment inflicted. All courts shall be open, and every person for an
injury done him, in his lands, goods, person or reputation, shall have remedy by
due course of law.
TAB

“C”
§ 103.001. Claimants Entitled to Compensation and Health..., TX CIV PRAC & REM...




  Vernon's Texas Statutes and Codes Annotated
    Civil Practice and Remedies Code (Refs & Annos)
      Title 5. Governmental Liability
         Chapter 103. Compensation to Persons Wrongfully Imprisoned (Refs & Annos)
           Subchapter A. Eligibility; Notice of Eligibility

                                    V.T.C.A., Civil Practice & Remedies Code § 103.001

                    § 103.001. Claimants Entitled to Compensation and Health Benefits Coverage

                                                 Effective: September 1, 2011
                                                         Currentness


(a) A person is entitled to compensation if:


  (1) the person has served in whole or in part a sentence in prison under the laws of this state; and


  (2) the person:


     (A) has received a full pardon on the basis of innocence for the crime for which the person was sentenced;


     (B) 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; or


     (C) has been granted relief in accordance with a writ of habeas corpus and:


       (i) the state district court in which the charge against the person was pending has entered an order dismissing the charge;
       and


       (ii) the district court's dismissal order is based on a motion to dismiss in which the state's attorney states that no credible
       evidence exists that inculpates the defendant and, either in the motion or in an affidavit, the state's attorney states that
       the state's attorney believes that the defendant is actually innocent of the crime for which the person was sentenced.


(b) A person is not entitled to compensation under Subsection (a) for any part of a sentence in prison during which the person
was also serving a concurrent sentence for another crime to which Subsection (a) does not apply.


(c) If a deceased person would be entitled to compensation under Subsection (a)(2) if living, including a person who received
a posthumous pardon, the person's heirs, legal representatives, and estate are entitled to lump-sum compensation under Section
103.052.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 1
§ 103.001. Claimants Entitled to Compensation and Health..., TX CIV PRAC & REM...




(d) Subject to this section, a person entitled to compensation under Subsection (a) is also eligible to obtain group health benefit
plan coverage through the Texas Department of Criminal Justice as if the person were an employee of the department. This
subsection does not entitle the person's spouse or other dependent or family member to group health benefit plan coverage.
Coverage may be obtained under this subsection for a period of time equal to the total period the claimant served for the crime
for which the claimant was wrongfully imprisoned, including any period during which the claimant was released on parole or
to mandatory supervision or required to register under Chapter 62, Code of Criminal Procedure. A person who elects to obtain
coverage under this subsection shall pay a monthly contribution equal to the total amount of the monthly contributions for that
coverage for an employee of the department.


(e) Notwithstanding Section 103.053(c), annuity payments may be reduced by an amount necessary to make the payments
required by Subsection (d), and that amount shall be transferred to an appropriate account as provided by the comptroller by
rule to fund that coverage.


Credits
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001; Acts
2009, 81st Leg., ch. 180, § 2, eff. Sept. 1, 2009; Acts 2011, 82nd Leg., ch. 698 (H.B. 417), § 2, eff. June 17, 2011; Acts 2011,
82nd Leg., ch. 1107 (S.B. 1686), §§ 1, 2, eff. Sept. 1, 2011.



Notes of Decisions (31)

V. T. C. A., Civil Practice & Remedies Code § 103.001, TX CIV PRAC & REM § 103.001
Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   2
TAB

“D”
                                         DC BK09301 PG1485

•




                   CAUSE#                 D1-DC-99-6015
                                          D 1-DC-99-60 16
                                          D1-DC-99-6017
                                          D 1-DC-99-60 18



    THE STATE OF TEXAS                            §              IN THE DISTRICT COURT
                                                  §
    v.                                            §               I 67TH JUDICIAL DISTRICT
                                                  §
    ROBERT SPRINGSTEEN                            §              TRAVIS COUNTY, TEXAS


                            STATE'S MOTION FOR DISMISSAL

           COMES NOW the State ofTexas by and through its District Attorney and files
    this Motion for Dismissal in the above numbered and entitled causes and would
    respectfully show the Court the following:

                                                 I.

           In March of2008, the State submitted, inter alia, a vaginal swab from one of the
    victims, Amy Ayers, to Fairfax Identity Laboratories for DNA testing using the YSTR
    technique. This type of DNA testing was previously unavailable. The testing revealed a
    male donor whose identify is unknown to the State.

                                                  II.

            On June 24, 2009 the State sought for the first time a continuance in the case on
    the grounds that it was continuing the investigation to learn the identity and involvement
    of this unknown male. The Court granted the continuance and set the case for a hearing
    on August 12, 2009. The Court on August 11, 2009 entered a written order stating that it
    would deny any further Motion for Continuance by the State on grounds identical to
    those offered at the June 24, 2009 hearing and set the case for October 28, 2009. The
    State is continuing its testing to identify the male donor.

                                                  III.

            The State's only viable option at this time is to seek a dismissal pending further
    investigation given the Court's written order that it would deny any further State
    continuances and the fact that the State has not yet identified the male donor.

                                                                       Flied In The District Court
                                                                        of Travis County, Texas

                                                                             rsr 28 2009
                                                                       At
                                                                       Amalia Rodrlguu
                                                                                      ''~~Cltlk
                                                                                            M. (._
                                                                                                T    _

                                                                  27
                                         DC BK09301 PG1486


•




           WHEREFORE, PREMISES CONSIDERED, the State respectfully requests that
    the Court grant the State's Motion for Dismissal.




                                                 Rosemary Lehmberg
                                                 District Attorney
                                                 Travis County, Texas




                                      Certificate of Service

            By signature above, the attorney for the State hereby certifies that a true and
    correct copy ofthe foregoing State's Motion for Contijy~was delivered to the
    Attorney for the Defendant, James Sawyer, on this the·          day of October, 2009.




                                                                  28
TAB

“E”
                  Rosemary Lehmberg                   * Travis County District Attorney
                         P.O. Box 1748 Austin, Texas 78767 • Telephone: 5U-854-9400 • Fax: 512-854-9534
                                e-mail: district.attorney@co.travis.tx.us • www.traviscountyda.org




For Immediate Release                                                           Contact: Rudy Magallanes
June 24, 2009                                                                            512-854-9398


Travis County District Attorney Rosemary Lehmberg today issued the following statement:

Today I requested a continuance in the case against Michael Scott, a defendant in the
Yogurt Shop murders, whose trial was scheduled to begin on July 6th. Judge Mike Lynch
granted that motion but also released both Michael Scott and Robert Springsteen on
personal bond, as he indicated he would do in his previous scheduling order.

Requesting a delay in the case was a difficult decision but one that I believe is the best
course toward an ultimate successful prosecution of this important matter.

Knowing that Judge Lynch would release both defendants, we requested certain conditions
on their bonds, requiring them to remain in Travis County and report to the Court any
change of residence, to have no contact with the victims' families or witnesses, that they not
carry weapons or consume alcohol or illegal drugs, that they report to the Court on a routine
basis and attend all court appearances.

As you know, both Springsteen and Scott were convicted by juries in June of 2001 and
September of2002. Their convictions were then overturned by the appellate court, but their
statements to law enforcement were found to be voluntarily given.

Since the original trial of these two men, new developments in DNA technology have
become available. As we prepared for retrial, in March of 2008, we submitted various
evidentiary items for what is called YSTR testing. This test looks for male DNA only and is
deemed to be the most accurate test for samples that are mixtures of female and male DNA,
as in this case.

We sought this testing because we have an ongoing duty and responsibility to use the most
up to date science available, to seek the truth in this and all the cases we prosecute.


                                                 -MORE-

                      Criminal Justice Center • 509 West 11th Street • Austin, Texas 78701


                                                                          375
Yogurt Shop Statement
June 24, 2009
Page2




Currently, it is clear to me that our evidence in the death of these four young women
includes DNA from one male whose identity is not yet known to us. The defense asserts
that the testing reveals more than one unknown male, but the evidence presented at the
hearing on Thursday, June 18th contradicts that notion.

The reliable scientific evidence in the case presents one, and one only, unknown male
donor. Given that, I could not in good conscience allow this case to go to trial before the
identity of this male donor is determined, and the full truth is known. I remain confident
that both Robert Springsteen and Michael Scott are responsible for the deaths at the Yogurt
Shop but it would not be prudent to risk a trial until we also know the nature of the
involvement of this unknown male.

My office and the Austin Police Department remain committed to these cases. Their further
investigation will continue to be a priority. My commitment to the victims, their families
and this community is that we will not give up until all of the people responsible for these
terrible and tragic murders are brought to justice.

                                                      ###




                      Criminal Justice Center • 509 West 11th Street • Austin, Texas 78701


                                                                          376
TAB

“F”
FILEO
3/3/2014 7:53:18 AM
Donna Kay rV'IcKinney                                                                      CIT CMUSAC 2
Bexar County District Clerk
Accepted By: Roxanne Mujica



                                                   Donna Kay M'Kinney
                                                 Bexar County District Clerk
                                                         Request for Process
                                                        D-1-GN-14-001847          353RD
   Style:
    Robert Burns Springsteen, IV- EX PARTE


   Vs.                                                                                         District Court _28.;..;.8_ __
    Rosemary Lehmberg - INTERESTED PARTY

   Request the following process: (Please check all that Apply)
   Citation ljl Notice D Temporary 0Restraining Order D Notice of Temporary Protective Order
   0Temporary Protective Order D Precept with hearing 0Precept without a hearing 0Writ of Attachment
   0Writ of Habeas Corpus D Writ of Garnishment 0Writ of Sequestration Dcapias D Other: - - - - - - - -

   1.
   Name: Rosemary Lehmberg
   Registered Agent/By Serving: _T_ra_v_is_c_o_u_nty...._D_is_tr_ic_t_A_tto_r_ne..:y~-------------------­
   Address P.O. Box 1748, Austin, Texas
   Service Type: (Check one) 0Private Process 0Sheriff 0Publication (Check One) Ocommercia/ Recorder Onart Beat Ocourthouse Door
               lj!Certijied Mail Registered Mail     Dout of County Dsecretary of State Dcommissioner of Insurance
   2.
   Name: _________________________________________________________________________

   Registered Agent/By S e r v i n g : - - - - - - - - - - - - - - - - - - - - - - - - - -_ -
   Address ______________________________________________________________________
    Service Type:            0Private Process Dsherif.f 0Pub/ication (Check One) Ocommercia/ Recorder Onart Beat Dcourthouse Door
                      (Check One)
               0Certified Mail Registered Mail OOut of County Dsecretary of State Dcommissioner of Insurance
   3.
   Name: _____________________________________________________________________________

   Registered
   Address    Agent/By Serving: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -__
           ___________________________________________________                                    -

    Service Type:            0Private Process 0Sherif.f 0Pub/ication (Check One) Ocommercial Recorder 0Hart Beat Dcourthouse Door
                      (Check One)
               Dcertified Mail Registered Mail OOut of County Dsecretary ofState Dcommissioner of Insurance
    4.
    Name: _________________________________________________________________________

    Registered Agent/By Serving: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
    Address ______________________________________________________________________                 _-
    Service Type:            0Private Process Dsherif.f 0Publication (Check One) Ocommercial Recorder 0Hart Beat Ocourthouse Door
                      (Check One)
               0Certified Mail Registered Mail Oout of County Osecretary of State Dcommissioner of Insurance


    Name of Attorney/Pro se: _B_ro_a_d_us_A_._s..:.p_iv_e..:..y_ _ _ _ _ _ Bar Number: _o_oo_o_o_o_76_ _ _ _ _ _ __
    Address: 48 East Avenue                                                Phone Number: .;;.5..;.12;;.-4..;.7_4_-6_0_6_1_ _ _ _ __
                Austin, TX 78701

                      Attorney for Plaintiff .;..x;....._______ Defendant---- Other-------

            ****IF SERVICE IS NOT PICKED UP WITHIN 14 BUSINESS DAYS, SERVICE WILL BE DESTROYED****


                                                                                               211
