
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN






NO. 03-02-00151-CV


Edmund Bryan Heimlich, Appellant

v.

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





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


O P I N I O N


	Edmund Brian Heimlich appeals the summary judgment denying his request for
damages due to wrongful imprisonment.  We will affirm the judgment in part, reverse the judgment
in part, and remand the cause for further proceedings.

BACKGROUND

	Heimlich was convicted of theft and was sentenced to four years in prison.  Heimlich
v. State, 988 S.W.2d 382, 382 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd).  After serving
some of his sentence, (2) he was awarded shock probation.  See id. at 382 n.2.  A court of appeals
reversed his conviction and rendered a judgment of acquittal based on legal insufficiency of the
evidence.  Id. at 385.  The court concluded that he could not have committed theft of a check as
charged because he was the owner of the check.  Id.
	Heimlich sued for compensation under constitutional and statutory provisions.  He
cited several constitutional provisions that he claimed were violated.  See Tex. Const. art. I, §§ 1,
2, 3, 9, 10, 16, 17-19, 28, & 30(2), art. III, § 51-c.  He also sought relief under the statutory provision
for compensation for wrongful imprisonment.  See Tex. Civ. Prac. & Rem. Code Ann. § 103.001
(West Supp. 2003).  He asserted in his amended petition that, despite the revision of the statute by
the 2001 Legislature, his petition was brought under the pre-revision code.
	The State moved for summary judgment.  Noting Heimlich's insistence on bringing
the action under the old code, the State moved for summary judgment based on his failure to show
that he had "received a full pardon for the crime and punishment for which he was sentenced" as
required by the former statute.  See Act of May 28, 1965, 59th Leg., R.S., ch. 507, § 2(d) 1965 Tex.
Gen. Laws 1022 (recodified 1973, amended 2001) (current version at Tex. Civ. Prac. & Rem. Code
Ann. § 103.001 (West Supp. 2003)).  The State attached a copy of the letter from the Board of
Pardons & Paroles stating that "the Theft offense cannot be pardoned because there is no
conviction."  The State moved for summary judgment against Heimlich's constitutional claims on
grounds that persons may seek only injunctive relief, not monetary damages, for violations of
constitutional provisions, citing Beaumont v. Bouillion, 896 S.W.2d 143, 148-49 (Tex. 1995).  The
State quoted language from a case noting a limited exception to this general rule regarding article
I, chapter 17 of the Texas Constitution.  See Ho v. University of Tex. at Arlington, 984 S.W.2d 672,
687 (Tex. App.--Amarillo 1998, pet. denied); see also Tex. Const. art. I, § 17.
	Heimlich opposed the motion, contending that the constitution requires the courts to
remain open and that he had a common-law right to enforce the bill of rights.  He argued that the
requirement of a full pardon was not mandatory.
	The district court granted the State's motion for summary judgment.

DISCUSSION

	Heimlich appeals, contending that the district court placed form over substance, that
section 103.001 is an unconstitutional limitation on his right to recover under article III, section 51-c
of the Texas Constitution, that he met the substance of the requirement of a full pardon by showing
he was acquitted of the offense, and that an element of the State's motion was defeated by its own
admission that a monetary remedy existed for violations of the takings clause of the Texas
constitution, article I, section 17.  He also contends that the confiscation of the funds from the
disputed check constitutes an illegal tax.  He finally complains that the court did not allow him
sufficient time for discovery.
	Because these complaints overlap, we will consider them together as they apply to
the various asserted grounds for recovery.  Because the summary judgment was based on questions
of law, we review the trial court's decision de novo.  See Fulton v. Associated Indem. Corp., 46
S.W.3d 364, 366 (Tex. App.--Austin 2001, pet. denied).

Constitutional complaints
	Heimlich correctly notes that the supreme court acknowledged in Bouillion, and the
State agrees, that actions for monetary recovery exist under the takings clause.  Id. at 149 ("The text
of section 17 waives immunity only when one seeks adequate compensation for property lost to the
State."); see also Tex. Const. art. I, sec. 17.  The district court accordingly erred by granting
summary judgment against Heimlich's section 17 claim based on the State's assertion that the Texas
Constitution does not, as a matter of law, support claims for monetary damage.
	None of Heimlich's other claims for damages from constitutional violations survives. 
His arguments do not overcome the supreme court's analysis that the Texas Constitution does not
generally provide for a right of monetary recovery.  See Bouillion, 896 S.W.2d at 148-49. (3)  He does
not point to authority for monetary damages based on constitutional violations other than those
involving article I, chapter 17.  Heimlich argues that he can recover under article III, section 51-c,
which provides as follows:

The Legislature may grant aid and compensation to any person who has heretofore
paid a fine or served a sentence in prison, or who may hereafter pay a fine or serve
a sentence in prison, under the laws of this State for an offense for which he or she
is not guilty, under such regulations and limitations as the Legislature may deem
expedient.


Tex. Const. art. III, § 51-c.  This section plainly makes the provision of aid and compensation
optional and contingent on Legislative action.  Thus, this section does not create an absolute,
independent constitutional right to monetary recovery.

Statutory provision
	The Legislature has exercised its constitutional authority to create a system whereby
wrongfully imprisoned persons might be compensated under limitations it deems expedient.  See
Tex. Const. art. III, § 51-c; Tex. Civ. Prac. & Rem. Code Ann. §§ 103.001-.154 (West 1997 & Supp.
2003).  Although Chapter 103 was extensively revised in 2001 before the State's summary-judgment
motion was filed, Heimlich insisted at trial that he was proceeding under Chapter 103 as it stood
before the amendments.  The State's motion for summary judgment addresses only the grounds
under the former statute.
	On appeal, Heimlich argues that the district court erred by granting summary
judgment against his claims because the court of appeals reversed his conviction on grounds that he
did not commit a crime; he is thereby essentially claiming that he has "been granted relief on the
basis of actual innocence of the crime."  Receiving relief based on actual innocence is an additional
basis for compensation under the amended statute.  See Tex. Civ. Prac. & Rem. Code Ann.
§ 103.001(a)(2)(B) (West Supp. 2003).  The amended statute applies to this case because the
Legislature specified that the amendments apply to all actions "pending on that effective date and
in which the trial, or any new trial or retrial following motion, appeal, or otherwise begins on or after
that effective date."  Act of May 26, 2001, 77th Leg., R.S., ch. 1488, § 4(a)(2), 2001 Tex. Gen. Laws
5280, 5284.  There is no provision for electing to proceed under the former statute.  See id.  The
statute was effective June 15, 2001.  See id.  The State filed its motion for summary judgment on
November 29, 2001, and the court granted that motion on January 8, 2002.  Thus, despite surplusage
in Heimlich's pleadings to the contrary, the amended statute applies because trial in this case had not
begun on the effective date of the amendment.  See id.  Moreover, Heimlich's pleadings are
sufficient to state a claim under the amended statute.  Accordingly, we conclude that the district court
erred by granting summary judgment against his claim for recovery under section 103.001.

CONCLUSION

	Having considered all of Heimlich's complaints, we reverse the summary judgment
granted against Heimlich's claims for compensation under article I, section 17 of the Texas
Constitution and under Texas Civil Practice and Remedies Code section 103.001.  We affirm the
summary judgment in all other respects.  We remand the cause for further proceedings.


  
					Bea Ann Smith, Justice
Before Justices Kidd, B. A. Smith and Yeakel
Affirmed in Part; Reversed and Remanded in Part
Filed:   January 30, 2003
1.   This cause was originally filed against the previous attorney general of Texas, John Cornyn. 
Greg Abbott has succeeded Cornyn as attorney general and is automatically substituted as a party
in this cause.  See Tex. R. App. P. 7.2(a).
2.   Heimlich alleges without controversion that he served five months in prison.
3.   The supreme court notes that we must consider the constitution in light of the
contemporaneous legal climate, and also notes that sovereign immunity has been cited as support
for the absence of a right to seek monetary damages for constitutional violations.  See Bouillion, 896
S.W.2d at 148.  Sovereign immunity was recognized by the supreme court of the Republic of Texas. 
Board of Land Comm'rs v. Walling, Dall. 524, 525-26 (Tex. 1843).  Sovereign immunity was also
recognized early in statehood.  Hosner v. DeYoung, 1 Tex. 764, 769 (1847).

