      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-05-00827-CV



            Appellant, State of Texas// Cross-Appellant, Edmund Bryan Heimlich

                                                   v.

             Appellee, Edmund Bryan Heimlich// Cross-Appellee, State of Texas


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
       NO. GN100142, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING



                              MEMORANDUM OPINION


                Edmund Bryan Heimlich obtained a district court judgment against the State awarding

him over $600,000 in actual damages. Virtually all of the damages were based on claims Heimlich

had asserted under Texas’s wrongful-imprisonment statute, chapter 103 of the civil practice and

remedies code. See Tex. Civ. Prac. & Rem. Code Ann.§§ 103.001-.154 (West 2005 & Supp. 2007).1

Chapter 103 waives sovereign immunity and authorizes claims against the State for compensation

where the claimant (1) “has served in whole or in part a sentence in prison under the laws of this

state,” and, in relevant part, (2) “has been granted relief on the basis of actual innocence for the crime

for which the person was sentenced.” Tex. Civ. Prac. & Rem. Code Ann. § 103.001(a). Heimlich

based his chapter 103 claim on his imprisonment pending his appeal of a theft conviction in which




        1
         For convenience, we will cite to the current version of the statute except when substantive
differences in an applicable prior version are relevant.
he ultimately obtained a reversal on legal-insufficiency grounds. Heimlich also recovered roughly

$10,000 under a takings claim under article I, section 17 of the Texas Constitution. The State has

appealed the judgment, contending that Heimlich’s claims are barred by sovereign immunity.

               In State v. Young, we determined that the legislature in chapter 103 intended to

waive sovereign immunity only for claimants who obtained habeas corpus relief from

their convictions based on “actual innocence.” No. 03-07-00572-CV, ___ S.W.3d___, ___

(Tex. App.—Austin July 31, 2008, no pet. h). Young controls here and, under its analysis,

Heimlich’s wrongful-imprisonment claim is barred by sovereign immunity. We also conclude that

Heimlich’s takings claim is supported by legally insufficient evidence. Accordingly, we will reverse

and render judgment dismissing Heimlich’s wrongful-imprisonment claim for want of subject-matter

jurisdiction, and that Heimlich take nothing on his takings claim.


                                        BACKGROUND

               The circumstances giving rise to this appeal are summarized in Heimlich v. State,

988 S.W.2d 382 (Tex. App.—Houston [14th Dist.] 1999, pet. denied), and Heimlich v. State,

107 S.W.3d 643 (Tex. App.—Austin 2003, no pet.). Heimlich, a licensed real estate broker, was

charged with felony theft in connection with a dispute with an associated real estate salesperson

involving a $5,050 commission check. The salesperson received the commission check for funds

owed to him. However, the commission check was made payable to Heimlich because he was the

salesperson’s sponsoring broker. Heimlich, 988 S.W.2d at 382-83 & n.3. The salesperson allegedly

was induced by Heimlich to surrender the commission check to Heimlich in exchange for a

post-dated check from Heimlich paying the salesperson the commission amount. Id. at 382-83; id.

                                                 2
at 385-86 (Hudson, J., dissenting). Heimlich endorsed the commission check made out to him, and

the funds were deposited in his bank account. Heimlich later issued an order to stop payment on the

post-dated check he had written and given to the salesperson in exchange for the commission check.

Id. at 383. Concerned that he would not receive his commission, the salesperson filed a complaint

with the check fraud division of the Harris County District Attorney’s office. The bank subsequently

placed a hold on the funds in Heimlich’s account, and a district judge later signed a warrant

authorizing the seizure of the disputed funds, which were placed in the court’s registry. Id.

               Heimlich was prosecuted for theft of property with a value between $750 and less

than $20,000. Id. The State’s theory at trial was that the salesperson had been the owner of the

commission check made payable to Heimlich because the salesperson was entitled to the commission

the check was written to pay, and that Heimlich had acted with intent to deprive the salesperson of

his commission when he induced the salesperson to surrender the check in exchange for a check

from Heimlich on which he ultimately stopped payment. A jury found Heimlich guilty of theft, and

he was sentenced to four years in prison. Heimlich appealed, challenging his conviction on grounds

that included legally insufficient evidence that he committed theft. Id.

               A panel of the Fourteenth Court of Appeals, with one justice dissenting, reversed the

judgment of conviction and rendered a judgment of acquittal. The majority acknowledged that “[t]he

State demonstrated at trial that Heimlich was having difficulty in making the rental fees for his office

space,” and that “[h]e had apparently represented to the landlord that he had a sum of approximately

$5,000 owed to him, and that he would use the sum to pay his arrearages.” Id. However, it

concluded that the evidence was legally insufficient to demonstrate Heimlich appropriated property



                                                   3
“owned” by the salesperson, an essential element of theft. Id. at 384. The majority reasoned that

the sole evidence of any property “owned” by the salesperson that Heimlich had appropriated was

the commission check itself, and “[w]hile the complainant may have actually possessed the piece

of paper called a ‘check,’ Heimlich remained the only person with a legal ownership interest in the

thing of value the check signified—the order to pay $5050.”2 Id. It acknowledged that “[o]bviously,

Heimlich could have appropriated the money by gaining possession of the commission funds, using

them for his own personal use, and refusing to tender payment to the complainant in the amount and

at the time called for in their contract,” but that he could not have done so because the bank

had placed a stop on Heimlich’s account before he obtained use of the funds. Id. at 385.

Although acknowledging that “the situation raised somewhat of a catch-22,” the majority observed

that “the complainant’s swift action may have been the factor that kept Heimlich from committing

the alleged crime.” Id. at 385 n.8.

               During the pendency of the appeal from his criminal conviction, it is not disputed that

Heimlich served a portion of his sentence in prison. Heimlich, 107 S.W.3d at 644 & n.2. In 2001,

Heimlich filed suit against the State in Travis County district court seeking compensation

under chapter 103 of the civil practice and remedies code. At the time Heimlich initially filed suit,

chapter 103 authorized claims for compensation related to wrongful imprisonment if the claimant:




       2
         The commission check was, in fact, made payable to Heimlich. There was no indication
on the check itself that the salesperson had any interest in the funds ordered to be paid by the check.

                                                  4
               (1)    has served in whole or in part a sentence in prison under the
                      laws of this state;

               (2)    pleaded “not guilty” to the charge for which he was convicted
                      and that led to the imprisonment;

               (3)    is not guilty of the crime for which he was sentenced; and

               (4)    has received a full pardon for the crime and punishment for
                      which he was sentenced.


Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1985 Tex. Gen. Laws 3242, 3307.

               Meanwhile, during its 77th Regular Session in 2001, the legislature extensively

revised chapter 103. Act of May 26, 2001, 77th Leg., R.S., ch. 1488, 2001 Tex. Gen. Laws 5280.

Among other key changes, compensation claims were authorized for persons who had “served in

whole or in part a sentence in prison under the laws of this state,” and either “received a full

pardon on the basis of innocence for the crime for which the person was sentenced” or was

“granted relief on the basis of actual innocence for the crime for which the person was sentenced.”

Act of May 26, 2001, 77th Leg., R.S., ch. 1488, § 1, sec. 103.001, 2001 Tex. Gen. Laws 5280, 5280

(now codified at Tex. Civ. Prac. & Rem. Code Ann. § 103.001(a)) (emphasis added). The

amendments were made applicable to pending suits. Act of May 26, 2001, 77th Leg., R.S., ch. 1488,

§ 4, 2001 Tex. Gen. Laws 5280, 5284. Also during the pendency of his suit, the counsel who had

filed Heimlich’s original petition withdrew. Heimlich, now acting pro se, subsequently filed an

amended petition asserting claims for damages under numerous constitutional provisions, including

article I, section 17 of the Texas Constitution. Regarding his chapter 103 claim, Heimlich

acknowledged that the legislature had amended the statute but pled that “[t]his action is brought



                                                5
under the code as it existed prior to revision,” although he purported to “reserve the right to re-file

his claim under the revised code if redress and remedy should be denied to him.”

                 The State filed a traditional motion for summary judgment. “Noting Heimlich’s

insistence on bringing the action under the old code,” Heimlich, 107 S.W.3d at 644, the State relied

solely on the ground that Heimlich had not “received a full pardon for the crime and punishment for

which he was sentenced,” as had been required under the former statute. As for Heimlich’s

constitutional damage claims, the State’s motion relied on the principle that “the Texas Bill of

Rights, with the exception of Section 17 of Article I, are self-executing to the extent that a party may

only seek injunctive relief for violations of those rights.” Ho v. University of Tex. at Arlington,

984 S.W.2d 672, 687 (Tex. App.—Amarillo 1998, no writ) (citing City of Beaumont v. Bouillion,

896 S.W.2d 143, 148-49 (Tex. 1995)). The district court granted the State’s motion without

stating its grounds and rendered final judgment dismissing Heimlich’s suit. Heimlich appealed

to this Court.

                 This Court affirmed the district court’s judgment in part and reversed and remanded

in part. While affirming the dismissal of Heimlich’s other constitutional claims in light of Bouillion,

the Court held that summary judgment was error as to his taking claim under article I, section 17

“based on the State’s assertion that the Texas Constitution does not, as a matter of law, support

claims for monetary damages.” Heimlich, 107 S.W.3d at 645. The Court also reversed summary

judgment on Heimlich’s chapter 103 claim. The Court emphasized that the amended version of

chapter 103 governed the case, that “[t]here is no provision for electing to proceed under the former




                                                   6
statute,” and that “[t]he State’s motion for summary judgment addresses only the grounds under the

former statute.” Id. at 645-46.

               The Court further suggested that “[o]n 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.’” Id. In the context of this

discussion, the Court also stated, “Heimlich’s pleadings are sufficient to state a claim under the

amended statute.” Id. at 646.

               The cause was remanded to the district court. Heimlich, still representing himself,

filed an amended petition explicitly invoking the amended version of chapter 103. He also filed a

motion for partial summary judgment that he was entitled to compensation under chapter 103.3

Heimlich cited the fact that he had served part of his sentence in prison and argued that he had

“been granted relief on the basis of actual innocence” when the Fourteenth Court of Appeals reversed

his criminal conviction on legal-sufficiency grounds. In support of that argument, Heimlich cited,

among other things, this Court’s prior opinion, which he contended established that proposition as

law of the case. In response, the State conceded that Heimlich had “served . . . a sentence in

prison under the laws of this state,” but disputed that, as a matter of statutory construction, the

Fourteenth Court of Appeals’ reversal of Heimlich’s conviction on legal-sufficiency grounds




       3
          Heimlich styled this a motion for “no evidence” summary judgment but, in substance, it
is essentially a traditional motion presenting a statutory-construction issue. The State has not
complained that Heimlich’s characterization of the motion improperly shifted the summary-judgment
burden or otherwise rendered it inappropriate.

                                                 7
constituted “relief on the basis of actual innocence.” See Tex. Civ. Prac. & Rem. Code Ann.

§ 103.001(a). After requesting additional briefing on “the definition of Actual Innocence,” the

district court granted Heimlich’s motion.

               The parties proceeded to a bench trial, at which Heimlich was represented by

counsel.4 The district court ultimately rendered final judgment awarding Heimlich a total of

$660,605.74. Nearly all of these damages were awarded as compensation to which the court found

Heimlich to be entitled under chapter 103, including $400,000 in lost wages, $76,139.30 in

attorney’s fees, and approximately $120,000 in prejudgment interest. The district court rejected

Heimlich’s attempts to recover several hundred thousand dollars in additional consequential damages

related to lost profits or business, concluding that Heimlich’s evidence was legally insufficient.

               The court also awarded $5,050 “[f]or Property Unconstitutionally Taken . . . pursuant

to Art. I, § 17 of the Texas Constitution,” plus prejudgment interest on that sum, for a total of

$10,751.94. The district court rejected attempts by Heimlich at trial to recover his other claimed

damages under article I, section 17, ruling that he had pled only for the taking of the $5,050

representing the amount of funds seized from his bank account.5




       4
        Heimlich’s trial counsel also served as appellate counsel to Mr. Young in State v. Young,
No. 03-07-00572-CV, ___ S.W.3d ___ (Tex. App.—Austin July 31, 2008, no pet. h.).
       5
           Curiously, Heimlich’s live petition actually appears to be confined to a chapter 103 claim
and does not explicitly mention a takings claim under article I, section 17 of the Texas Constitution.
In fact, in his summary-judgment filings, Heimlich had stated that his takings claim “is not an issue
before this court in this Action or at this time in this [summary-judgment] hearing and will be
addressed in GN200857,” evidently a second lawsuit that Heimlich had filed. Nonetheless, the State
conceded at trial that Heimlich was attempting to allege a takings claim based on the seizure of the
$5,050 in funds from his bank account.

                                                  8
               The State filed a motion to modify the judgment or for new trial. The State argued

that Heimlich’s suit was barred by sovereign immunity because the reversal of Heimlich’s conviction

on legal-sufficiency grounds did not constitute “relief on the basis of actual innocence” so as to fall

within chapter 103’s waiver of sovereign immunity. Consequently, the State urged, Heimlich

was not entitled to any damages. In the alternative, the State argued that the damages awarded

by the district court exceeded those for which the legislature had waived sovereign immunity in

chapter 103. The district court denied the motion by written order. The State appealed.


                                            ANALYSIS

               The State brings three issues on appeal. In its first issue, the State argues that

chapter 103 of the civil practice and remedies code did not waive its sovereign immunity from claims

for wrongful-imprisonment compensation by persons who, like Heimlich, were acquitted on the basis

of legal insufficiency of the evidence. Assuming that its immunity is waived in such cases, the State

urges, in its second issue, that the district court awarded Heimlich damages beyond the scope of

chapter 103’s waiver. In its third issue, the State contends that Heimlich failed to prove a cognizable

takings claim under the Texas Constitution and that his claim, though purportedly based on

article I, section 17, is barred by sovereign immunity.

               Heimlich has filed a cross-appeal. He brings several issues complaining that the

district court erred in refusing to award him an additional $707,741 on his claims.6


       6
         Heimlich, once again representing himself, also makes assertions to the effect that the State
has “waived” various appellate arguments by its alleged refusal to accept a settlement offer at some
point during the proceedings below, by alleged “stipulations” at trial, or because it did not take an
interlocutory appeal on its jurisdictional issue. He also seems to assert that various legal issues
became “final” in the district court and are beyond our power to review. Heimlich has also filed a

                                                  9
Chapter 103 claim

               Whether Heimlich can recover compensation under chapter 103 turns on whether he

“has been granted relief on the basis of actual innocence for the crime for which the person was

sentenced” so as to come within the statute’s waiver of sovereign immunity. Id. § 103.001(a); see

id. § 103.101(a). As a threshold matter, Heimlich asserts that his right to bring his claim under

chapter 103 was established as law of the case by this Court’s prior decision reversing and

remanding the cause.7 He emphasizes the Court’s statement that “Heimlich’s pleadings are sufficient

to state a claim under the amended statute,” Heimlich, 107 S.W.3d at 646, which he construes as a

holding that his claims are within the statute’s waiver and are not barred by sovereign immunity.

As we explained in Young, however, the statements on which Heimlich relies were dicta to the

extent they could be construed as addressing whether Heimlich “has obtained relief based on

actual innocence.” ___, S.W.3d at ___. The doctrine of law of the case is not implicated here. See

Four Bros. Boat Works, Inc. v. Tesoro Petroleum Cos., 217 S.W.3d 653, 662 (Tex. App.—Houston

[14th Dist.] 2006, pet. denied).




motion to dismiss the State’s appeal on some of these grounds and also on grounds that intervening
statutory changes have “abolished” “cognizable ground for appeal.” These contentions are without
merit, and we overrule Heimlich’s motion to dismiss. We similarly overrule Heimlich’s motion for
sanctions.
       7
           Heimlich also asserts that the Court’s prior opinion held that the State was liable to
him under both his chapter 103 claim and his takings claim. To the contrary, the Court held only
that the summary judgment that the State was not liable under those claims should be reversed
and remanded the cause for further proceedings. Heimlich v. State, 107 S.W.3d 643, 645-46
(Tex. App.—Austin 2003, no pet.). Thereafter the burden remained with Heimlich to prove the
State’s liability under the correct version of the statute as well as any damages in order to recover
on his claims.

                                                 10
               To support his claim that he “has been granted relief based on actual innocence,”

Heimlich has relied on the Fourteenth Court’s reversal of his theft conviction based on legally

insufficient evidence and an expunction order he subsequently obtained from a Harris County district

court. He also appears to argue that “actual innocence” is a fact issue that was determined in his

favor by the district court. Young forecloses Heimlich’s claim. Heimlich did not obtain relief from

his theft conviction based on “actual innocence,”8 much less obtain habeas corpus relief from his

theft conviction on that ground. ___ S.W.3d at ___. Consequently, he has not “been granted relief

on the basis of actual innocence for the crime for which the person was sentenced,” as the legislature

used that phrase in chapter 103 of the civil practice and remedies code. We are bound to give effect

to the legislature’s intent. Accordingly, sovereign immunity bars Heimlich’s claims for damages

from wrongful imprisonment. We sustain the State’s first issue. And, because Heimlich can thus

recover no damages under chapter 103, we overrule the parties’ issues regarding the amount of

damages the district court awarded.9




        8
          In addition to relying on his acquittal based on legal insufficiency of the evidence, Heimlich
cites language from his expunction order that he portrays as an “actual innocence” determination:
the charges were “dismissed because the presentment had been made because of mistake, false
information, or other similar reason indicating absence of probable cause at the time of the dismissal
to believe the person committed the offense or because it was void.” These concepts relate to the
State’s burden of proof at trial or related procedural requirements, not “actual innocence” as it is
known in Texas law.
        9
           For the same reasons, we dismiss as moot Heimlich’s motion for judicial notice of a
“legislative fact” relating to the damages recoverable under chapter 103, as well as the State’s motion
to strike Heimlich’s filing.

                                                  11
Takings claim

                In its third issue, the State contends that the district court erred in awarding damages

under Heimlich’s takings claim under article I, section 17 of the Texas Constitution. Sovereign

immunity does not shield the State from a claim based upon a taking under article I, section 17 of

the Texas Constitution. State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007). However, the State

argues that, for several reasons, Heimlich’s ostensible “takings” claim is in fact not cognizable under

article I, section 17, and, therefore, is a damages claim that is barred by sovereign immunity. While

phrasing its issue in jurisdictional terms, the substance of the State’s contentions is that there was

legally insufficient evidence of the elements of a takings cause of action.10

                The takings clause directs that “[n]o person’s property shall be taken, damaged

or destroyed for or applied to public use without adequate compensation being made, unless by

the consent of such person.” Tex. Const. art. I, § 17. A takings cause of action consists of

three elements: (1) an intentional act by the government under its lawful authority; (2) resulting

in a taking of the plaintiff’s property; and (3) for public use. See Holland, 221 S.W.3d at 643;

City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex. 2004); General Servs. Comm’n

v. Little-Tex Insulation Co., 39 S.W.3d 591, 599 (Tex. 2001). We need only consider the second

element—whether the State’s actions resulted in a “taking” of Heimlich’s property.

                The subject matter of Heimlich’s takings claim is $5,050 in funds—representing the

amount of the disputed commission check—that were seized from Heimlich’s bank account in


        10
           To the extent that Heimlich is still contending, as he did in the district court, that he could
be entitled to takings damages beyond the $5,050 amount, we conclude that the district court did not
err in denying that recovery.

                                                   12
connection with his criminal prosecution. The funds were seized pursuant to a warrant, signed by

a Harris County district judge, and were deposited into the court’s registry. Heimlich, 988 S.W.2d

at 383. These actions were expressly based on article 18.16 of the code of criminal procedure,

“Preventing consequences of theft,” which provides:


       Any person has a right to prevent the consequences of theft by seizing any personal
       property that has been stolen and bringing it, with the person suspected of
       committing the theft, if that person can be taken, before a magistrate for examination,
       or delivering the property and the person suspected of committing the theft to a peace
       officer for that purpose. To justify a seizure under this article, there must be
       reasonable ground to believe the property is stolen, and the seizure must be openly
       made and the proceedings had without delay.


Tex. Code Crim. Proc. Ann. art. 18.16 (West 2005). Heimlich characterized the seizure of the funds

as actions as theft of his property under color of law, and testified that he never recovered them.

Beyond this, the record is silent regarding the Harris County district court’s ultimate disposition of

the seized funds in light of the competing claims of ownership apparent in his criminal case.

Contrary to Heimlich’s understanding, the Fourteenth Court of Appeals did not decide that Heimlich

owned these funds, as opposed to the “piece of paper called [the commission] ‘check.’” Heimlich,

988 S.W.2d at 384-85. Instead, the court acknowledged that “Heimlich could have appropriated the

money by gaining possession of the commission funds, using them for his own personal use, and

refusing to tender payment to the complainant” but that he had been prevented from any such actions

by “the bank plac[ing] a stop on Heimlich’s account before he obtained use of the funds.” Id. at 385.

               On this record, Heimlich’s assertions that he has a right to the seized funds that could

be a basis for a takings claim is, at best, speculative, and cannot support the judgment awarding him



                                                 13
damages under that theory. Tex. Code Crim Proc. Ann.. art. 59.01(2)(C), .06, .08, .12 (West 2007);

see City of Keller v. Wilson, 168 S.W.3d 802, 830 (Tex. 2005). We sustain the State’s third issue.


                                        CONCLUSION

                We reverse the district court’s judgment awarding damages to Heimlich under

chapter 103 of the civil practice and remedies code, and render judgment dismissing that claim for

want of subject-matter jurisdiction. We also reverse the judgment of the district court awarding

damages under article I, section 17 of the Texas Constitution, and render judgment that Heimlich

take nothing.




                                             ____________________________________________

                                             Bob Pemberton, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Reversed and Rendered

Filed: July 31, 2008




                                               14
