EX PARTE TIMMY LYNN DUKE v. << (2026)

CONCURRING OPINION

This mandamus application is a good example for why this Court should stop labeling successful Elizondo ¹ applicants “actually innocent.” Relator asserts that he was wrongfully convicted of burglary of a habitation in 1992 and that this Court granted him relief based on actual innocence in 2018. Relator submitted an “Application for Compensation of a Wrongful Conviction” under the Tim Cole Act, which was denied by the State Comptroller. In the instant application for a writ of mandamus, Relator asks this Court to compel the Texas State Comptroller to “cure” Relator's 2018 application, acknowledge the Court's findings of actual innocence, and approve compensation under the Tim Cole Act. The Court correctly denies leave to file.

Relator's claim fails for a myriad of reasons. To start, this Court did not declare Relator “actually innocent.” Relator was indicted for burglary of a habitation that occurred in Irving, Texas, in Dallas County on June 26, 1991. However, as the habeas evidence eventually showed, Relator was arrested by the Lewisville Police Department in Denton County for unauthorized use of a motor vehicle (UUMV). Relator was subsequently convicted of both offenses and was sentenced to 25 years’ confinement for the burglary of a habitation offense and 80 years’ confinement for UUMV. In his -10 habeas application, Relator claimed that he was actually innocent because newly discovered evidence—a complete police report—that was not available to Relator at the time of his trial proved he was in Lewisville at the time the burglary of a habitation was committed in Irving.

But the Court's 2018 opinion granting Relator relief did not declare him “actually innocent.” The opinion simply stated:

Applicant seeks post-conviction habeas relief from his conviction for burglary of a habitation. Tex. Penal Code § 30.02(a). The State agrees that relief should be granted. This Court denied relief in Applicant's initial writ application. Ex parte Duke, No. WR-23,129-04 (unpublished order, Apr. 13, 2011). After careful consideration, we reopen Applicant's initial writ application and withdraw our previous order denying relief.

Relief is granted. The judgment in Cause No. F91-31292-L in the Criminal District Court Number Five of Dallas County is set aside, and Applicant is remanded to the custody of the Sheriff of Dallas County to answer the charges as set out in the indictment. The convicting court shall issue any necessary bench warrant within ten days after the mandate of this Court issues. Applicant's subsequent writ application, No. WR-23,129-10, is hereby dismissed as moot.

Ex parte Duke, No. WR-23,129-04, 2018 WL 3134511, at *1 (Tex. Crim. App. June 27, 2018) (mem. op., not designated for publication). Importantly, Relator's -04 writ, which the Court actually granted relief on, did not raise an Elizondo claim but rather an ineffective-assistance-of-counsel claim. So, at the outset, Relator has no claim under the Tim Cole Act.

Moreover, even if this Court had granted Relator Elizondo relief, Relator was correctly denied compensation. Under the Texas Civil Practice and Remedies Code:

(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:

* * *

(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.

Tex. Civ. Prac. & Rem. Code § 103.001(a). But a claimant “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.” Id. § 103.001(b). Relator was serving an 80-year sentence for UUMV at the same time as the sentence for the burglary-of-a-habitation offense. Consequently, Relator is not entitled to compensation. See id.

In any event, even if this Court had granted Relator relief on the basis of actual innocence and Relator was not concurrently serving another sentence, this Court would still be without authority to do anything. The Texas Supreme Court is vested with exclusive “authority to issue a writ of mandamus or injunction, or any other mandatory or compulsory writ or process, against any of the officers of the executive departments of the government of this state to order or compel the performance of a judicial, ministerial, or discretionary act or duty that, by state law, the officer or officers are authorized to perform.” Tex. Gov’t Code § 22.002(a), (c). The executive officers covered by this provision “are the governor, the lieutenant governor, the secretary of state, the comptroller of public accounts, the treasurer, the commissioner of the general land office, and the attorney general.” A & T Consultants v. Sharp, 904 S.W.2d 668, 672 (Tex. 1995) (citing Tex. Const. art. IV, § 1). Thus, the Texas Supreme Court is the proper venue to litigate Relator's claims. In re Smith, 333 S.W. 582 (Tex. 2011); see also Tex. Civ. Prac. & Rem. Code § 103.051(e) (“If the comptroller denies a claim after the claimant submits an application ․ the claimant may bring an action for mandamus relief.”).

And if all those independent reasons are insufficient, this is the second time that Relator has raised these claims in this Court. Relator's -15 writ, filed October 14, 2025, alleged that the Comptroller improperly denied his application for compensation and asked this Court to compel the Comptroller to “cure” his 2018 application, acknowledge the Court's findings of actual innocence, and approve compensation under the Tim Cole Act. This Court denied leave to file on November 6, 2025. The instant mandamus application was filed one month and six days later.

With all that being said, this Court could avoid future similar litigation by abandoning its practice of labeling successful Elizondo applicants “actually innocent.” Several Judges of this Court have advocated that this Court do so. Ex parte Mejia, 730 S.W.3d 389, 406 (Tex. Crim. App. 2026) (Finley, J., joined by Parker, J., concurring and dissenting); Ex parte Chaney, 563 S.W.3d 239, 286 (Tex. Crim. App. 2018) (Yeary, J., concurring). That is not to suggest that those who successfully litigate an Elizondo claim may not be compensated. As Judge Yeary put in in Cacy:

It is fine with me if applicants who satisfy Elizondo get paid and receive benefits—even if they have not established by any real legal burden their “actual innocence” of the crime for which they were convicted. But we cannot allow ourselves to be distracted by such purely civil matters when undertaking to decide whether to declare to the world that a person is “actually innocent” of a crime.

563 S.W.3d at 288 (Yeary, J., concurring). This case—and others—exemplify why this Court should stop its current practice of inappropriately over-utilizing the label.

With these thoughts, I join the Court's decision to deny leave to file.

FOOTNOTES

1.   Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App 1996).

Finley, J., filed a concurring opinion.