In RE COLTON LESTER v. the State of Texas

IN THE SUPREME COURT OF TEXAS
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No. 18-1041
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IN RE COLTON LESTER, RELATOR

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ON PETITION FOR WRIT OF MANDAMUS
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JUSTICE BOYD, dissenting.

As the Court correctly observes, this is “an egregious case of the criminal-justice system

gone wrong.” Ante at __. And I applaud the Court’s diligent effort to right that wrong. As JUSTICE

BLACKLOCK correctly observes, however, the issue before us is not whether we think the state

should compensate Colton Lester for wrongful imprisonment, but whether the Tim Cole Act

authorizes such compensation under these circumstances. The Act authorizes compensation for a

person who 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.” TEX. CIV. PRAC. & REM. CODE § 103.001(a)(2)(B) (emphasis added). I join

section I of JUSTICE BLACKLOCK’s dissenting opinion, concluding that Lester’s right to

compensation depends not on whether we think Lester was “actually innocent” of the crime for

which he was sentenced, but on whether the Court of Criminal Appeals granted Lester habeas

relief for that reason. And I agree with JUSTICE BLACKLOCK that the Court of Criminal Appeals

did not grant Lester relief based on actual innocence. But I agree with that conclusion for a

completely different reason.
In 2014, Lester (then seventeen years old) sent a text message attempting to sexually

proposition a minor. When charged with the crime of attempted online solicitation of a minor in

violation of Texas Penal Code section 33.021(b),1 he pleaded guilty. The court initially granted

him five years of deferred adjudication, but he violated the terms of community supervision two

years later. The court then declared him guilty of the offense and sentenced him to three years in

prison.

But in 2013, the year before Lester sent the offending text message, the Texas Court of

Criminal Appeals declared section 33.021(b) facially unconstitutional because it prohibited

constitutionally protected speech and was not narrowly drawn to impose the least restrictive means

to achieve the government’s compelling interest in protecting children from sexual abuse. See Ex

parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When Lester engaged in the offending

conduct in 2014, section 33.021(b) remained in the Penal Code as it existed in 2013. In 2015, the

legislature amended the Code, revising section 33.021(b) to require an intent to commit particular

offenses rather than an intent to arouse or gratify a person’s sexual desire.2 The Court of Criminal

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At the time the code provided:

A person who is 17 years of age or older commits an offense if, with the intent to
arouse or gratify the sexual desire of any person, the person, over the Internet, by
electronic mail or text message or other electronic message service or system, or
through a commercial online service, intentionally:
(1) communicates in a sexually explicit manner with a minor; or
(2) distributes sexually explicit material to a minor.

See Act of May 21, 2007, 80th Leg., R.S., ch. 610, § 2, 2007 Tex. Gen. Laws 1167, 1167–68 (current version at TEX.
PENAL CODE § 33.021(b)).
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The 2015 amendments revised the statute as follows:

A person who is 17 years of age or older commits an offense if, with the intent to
commit an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal

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Appeals has not yet considered whether the 2015 amendments corrected the constitutional

problems identified in Lo.

Meanwhile, after serving two years of his prison sentence, Lester obtained a writ of habeas

corpus setting aside his conviction based on the statute’s unconstitutionality as declared in Lo. The

writ did not expressly find or determine that Lester was actually innocent of the offense.

Nevertheless, he sought compensation for wrongful imprisonment under the Tim Cole Act.

Lester is not the only person convicted under section 33.021(b) who later sought relief

based on actual innocence. In 2015, the Court of Criminal Appeals granted habeas relief to two

others on the ground that (as the Court had declared in Lo) the statute was unconstitutional. Ex

parte Fournier, 473 S.W.3d 789, 796 (Tex. Crim. App. 2015). But the Court of Criminal Appeals

specifically refused to grant relief on the ground of actual innocence. Id. Because the applicants in

Fournier did “not contest that they engaged in the conduct for which they were convicted” and the

“conduct on which the criminal prosecution was based still exists as a matter of historical fact,”

the Court concluded that they did “not assert true claims of actual innocence for which [habeas]

relief may be granted.” Id. at 793.

Lester finds himself in the same predicament. He does not deny that he engaged in conduct

the Penal Code prohibited, and his conduct still exists as a matter of historical fact. Although he

Procedure arouse or gratify the sexual desire of any person, the person, over the
Internet, by electronic mail or text message or other electronic message service or
system, or through a commercial online service, intentionally:
(1) communicates in a sexually explicit manner with a minor; or
(2) distributes sexually explicit material to a minor.
See Act of May 11, 2015, 84th Leg., R.S., ch. 61, § 2, 2015 Tex. Gen. Laws 1036, 1036 (current version at TEX. PENAL
CODE § 33.021(b)).
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obtained habeas relief based on Lo’s declaration that the statute was unconstitutional, Fournier

requires the conclusion that the relief was not based on actual innocence.

Instead of disagreeing with and rejecting the Court of Criminal Appeals’ decision in

Fournier, the Court attempts to distinguish it on the ground that the applicants in that case

committed the offending conduct before Lo declared the statute unconstitutional, while Lester

committed the conduct after Lo. According to the Court, Lester (unlike the Fournier applicants)

obtained habeas relief declaring him actually innocent because his conduct was not “criminal at

the time it was committed.” Ante at ___. But the Court’s attempt to distinguish this case from

Fournier rests on a misunderstanding of the effect of the Lo decision declaring section 33.021(b)

unconstitutional. I cannot agree with the Court’s distinction because, as we explain in another case

decided today, unconstitutional laws are void ab initio and invalid from inception. See Ex parte

E.H. — S.W.3d —, — (Tex. May 15, 2020).

The United States Supreme Court explained long ago that an “unconstitutional law is void,

and is no law. An offense created by it is not a crime. A conviction under it is not merely erroneous,

but is illegal and void.” Ex parte Siebold, 100 U.S. 371, 376 (1880). As a matter of law, section

33.021(b) was “‘void from its inception . . . as if it had never been,’” and “is to be considered no

statute at all.” Smith v. State, 463 S.W.3d 890, 895 (Tex. Crim. App. 2015) (quoting Reyes v. State,

753 S.W.2d 382, 383 (Tex. Crim. App. 1998)). And, as we explain today in E.H., “in the absence

of the statute, no ‘offense’ ever occurred” under section 33.021(b), at least prior to its amendment

in 2015. E.H., — S.W.3d at —; see Offense, BLACK’S LAW DICTIONARY (11th ed. 2019) (“A

violation of the law; . . . a crime . . . . ”). If (as the Court of Criminal Appeals concluded) the

applicants in Fournier were entitled to habeas relief, they were entitled to that relief because

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section 33.021(b) was never valid to begin with, not because it became invalid when the Court of

Criminal Appeals issued its decision in Lo. Under Fournier, those applicants, like Lester, were

entitled to habeas relief, but they were not “actually innocent” of engaging in the conduct the

statute prohibited.

Contrary to these well-established principles, the Court’s holding today can only be correct

if an unconstitutional statute is not completely void and ineffective until a court declares it to be

unconstitutional. Under the Court’s analysis, section 33.021(b) retained some unidentified effect

after Lo declared it unconstitutional, prohibiting the Fournier applicants from being actually

innocent because they committed the conduct before Lo but making Lester actually innocent

because he committed the conduct after Lo. But an unconstitutional statute is void from its

inception. E.H., — S.W.3d at —. Its “‘unconstitutionality dates from the time of [the statute’s]

enactment, and not merely from the date of the decision so branding it.’” Reyes, 753 S.W.2d at

383–84 (quoting 16 AM. JUR. 2d Constitutional Law § 256 (1979)).

As the Court explains, Lester “could not have ‘commit[ted] the charged offense’ of online

solicitation of a minor because that offense, in fact, no longer existed.” Ante at __. But under

Fournier, his habeas relief was not based on a finding or determination of actual innocence. For

both Lester and the Fournier applicants, the offense “no longer existed” from the time section

33.021(b) was enacted in 2007 because Lo declared the statute unconstitutional in 2013.

Regardless of when the person committed the offending conduct, the conviction cannot stand

because the statute’s unconstitutionality prevented an offense from ever occurring. But whether

the person committed the conduct before or after Lo, the person is not actually innocent because

“Lo is irrelevant to whether [the person’s] conduct was in fact committed.” Fournier, 473 S.W.3d

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at 793. Because Lester cannot meet the Tim Cole Act’s requirement of “actual innocence,” I would

deny the petition for the writ of mandamus. I therefore respectfully dissent.

____________________
Jeffrey S. Boyd
Justice

Opinion delivered: May 15, 2020

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