Why wrongfully convicted Texans may be entitled to back pay from state

  • Johnathan Silver
  • American-Statesman Staff
Dec 28, 2017
Richard Danziger, center, receives hugs from his brother, Manfred Danziger Jr., and his niece, Elizabeth Oakley, after Judge Bob Perkins, background left, released him from prison on March 28, 2001. Danziger was wrongly convicted in a 1988 murder. He is brain-damaged from a beating he received from a fellow inmate. Danziger is one of three people who might be owed thousands of dollars in restitution from the state. RALPH BARRERA / AMERICAN-STATESMAN file photo

Texas might owe thousands of dollars in restitution to as many as four people who were wrongfully imprisoned, according to an American-Statesman review of state data and criminal records.

All told, the Texas comptroller’s office, which doles out money to Texans who went to prison for crimes they didn’t commit, has lost track of eight people agency records show are eligible to collect monthly compensation.

“We just didn’t hear from them,” said Kevin Lyons, a spokesman for the comptroller’s office.

So far, the state has paid more than 100 exonerated men and women more than $100 million since the early 1990s, according to the agency.

Much of that money was paid through the Tim Cole Act, a law approved in 2009 that makes exonerated Texans eligible for lump sum payments equal to $80,000 for each year they were wrongfully imprisoned. They also are eligible for monthly payments, calculated according to a formula based on age and life expectancy, for the rest of their lives.

Texas discontinues the monthly payments if former prisoners are convicted of a felony or die. Exonerated Texans, though, also have the option of receiving lower monthly payments so that their spouse or a designated beneficiary can collect compensation after they die. The compensation arrangement for wrongfully imprisoned Texans, which also covers college and health care costs, is considered the most generous of its kind in the country.

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The comptroller’s office doesn’t have a standard procedure for contacting people who might be entitled to such compensation, but generally lawyers for someone with a claim contact the comptroller’s office, Lyons said. An agency roster of those wrongfully imprisoned shows eight people who never received monthly payments, and agency officials said they couldn’t explain why.

Database background checks of the eight done by the Statesman revealed that four of them are dead, three returned to prison, and one is alive and has no subsequent felony on his record.

Nathaniel Ward and Alberta Williams died shortly after the Tim Cole Act took effect, meaning they were eligible for monthly payments. Joe Moore and Mark Webb died before the Tim Cole Act became law, which means they were never eligible for monthly payments. None of the four set up beneficiaries for payments so their descendants can’t make claims for back pay.

Two living exonerees — Troy Benard and Denise Kelly — who later were convicted of other felonies and returned to prison never received monthly payments and are ineligible for them going forward because of the subsequent convictions. However, they were eligible for the payments before their convictions but did not claim or receive them after the Tim Cole Act took effect on Sept. 1, 2009.

Benard and Kelly were among 47 defendants in the discredited 1999 Tulia drug bust. Their cases were based on the word of undercover officer Tom Coleman, who had said the defendants sold drugs to him, but he didn’t have corroborating evidence. In some cases, defendants had proof they were elsewhere when Coleman said they were selling him drugs.

Benard was awarded $52,000 in a lump sum payment from the state. Kelly was awarded $37,000, according to data from the comptroller’s office. Benard also received more than $100,000 from a multimillion-dollar settlement paid by taxpayers in counties that participated in the regional task force that Coleman worked for. In 2010, though, Benard was convicted of possession of a controlled substance, a state jail felony, and so was Kelly the following year.

READ: Greg Kelley is released on bond from jail after 3-year legal slog

A third living exoneree who never received monthly payments, Jason Fry, also was ensnared in the Tulia drug bust. He received $37,000 in a 2007 lump sum payment, but he didn’t set up monthly payments with the comptroller’s office after the Tim Cole Act made many exonerees eligible for lifetime monthly compensation, according to the agency’s data.

Fry was convicted of robbery in 2006 and aggravated assault with a deadly weapon in 2014. It’s unclear whether the first felony made him ineligible for monthly payments. It’s clear, though, that based on the compensation statute, he isn’t eligible for monthly payments because of the 2014 conviction.

The eighth person, Richard Danziger, was handed a life sentence in a 1988 Austin rape and murder that he didn’t commit. Danziger, who suffered brain damage after being attacked in prison, received a $250,000 settlement with the state in December 2009, according to the comptroller’s office.

Danziger, who was released from prison in 2001, also received $9 million in a settlement with the city of Austin, $1 million in another settlement with Travis County and $500,000 from Chris Ochoa, who had testified that he and Danziger committed the crimes. Ochoa later said he lied about their involvement because he was threatened with the death penalty. Ochoa received a $5.3 million settlement from the city of Austin for his wrongful imprisonment.

‘A hot mess’

The Tim Cole Act doesn’t address whether people can collect payments that were owed to them before they became ineligible to receive payments because of a felony conviction. The statute also doesn’t make the state responsible for finding Texans eligible for monthly compensation.

Benard and Kelly are not eligible for back pay, according to the comptroller’s office.

“(T)he law doesn’t provide for exonerees to be eligible for the annuity payments they didn’t get leading up to the subsequent conviction,” an official with the agency said in an emailed statement that Lyons relayed.

“I firmly disagree with that,” said Jeff Blackburn, an Amarillo criminal defense attorney and founder of the Innocence Project of Texas, reacting to the agency’s position on the living exonerees with felony convictions. “I have argued that very issue with them. They’re wrong on that.”

Blackburn called the issue an example of unintended consequences by lawmakers.

“The comptroller’s office is frankly a hot mess when dealing with these cases,” said Blackburn, who played a role in writing the Tim Cole Act and secured the exoneration of the law’s namesake. “Their policy is to deny everything until you start fighting them.”

State Rep. Joe Moody, D-El Paso, chairman of the House Criminal Jurisprudence Committee, said he also disagrees with how the agency interprets that aspect of the compensation law.

“I don’t know that I read it the same way,” said Moody, who was unaware of the issue until the Statesman contacted him. “I don’t see anything that says you become ineligible entirely, based on a subsequent felony conviction.”

Benard, Kelly and Danziger received compensation from the state that predates the Tim Cole Act. It’s unclear how much money could be owed to them.

Blackburn and Moody said people wanting back pay might have to sue for the money. It might be the quicker solution, compared with waiting on the Legislature, which reconvenes in 2019.

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But taking the lawsuit route would cost money, which Benard said he doesn’t have.

‘Could have saved my house’

Benard told the Statesman he made a claim for monthly payments. He said he was denied because of his felony conviction. He said he considered hiring a lawyer.

“I didn’t have the money at the time,” he said. “I pretty much let it go.”

Benard said he’d fallen behind on bills and lost his home to foreclosure.

“If I had those annuity payments, I could have saved my house,” he said. “It was frustrating.”

State Sen. Kirk Watson, D-Austin, who also was unaware of the issue before the Statesman raised it, said a court might not solve the problem because the Tim Cole Act doesn’t contemplate Benard’s and Kelly’s special circumstances.

“If the law’s not clear on (compensation), I’m not sure where the courts would stand on that,” he said.

Danziger’s case, though, might be different, according to the comptroller’s office.

“This claimant was awarded a settlement from the office of attorney general after filing suit under a prior version of the wrongful imprisonment statute,” Lyons relayed to the Statesman via email. “If application is received, a decision will be made to determine if the claimant is eligible for annuity payments.”

The Tim Cole Act states the compensation statute for wrongful imprisonment “as amended by this Act, applies only to an application for compensation for wrongful imprisonment that is filed on or after the effective date of this Act.” The act also states that “a person who received compensation under (the compensation statute) before September 1, 2009, is entitled to (monthly) payments.”

Barbara Oakley, Danziger’s sister and his guardian, told the Statesman she wasn’t sure whether Danziger is eligible for monthly payments. Oakley said that, after the Statesman contacted her, she asked for and is awaiting advice from Danziger’s attorney.

Kelly and Fry could not be reached for comment.

That the comptroller’s office has no policy for communicating with exonerees is problematic, Blackburn, Moody and Watson said.

“I think that that in of itself is an issue that needs to be addressed,” Moody said.

The purpose of the Tim Cole Act is first and foremost to pay people who were wrongfully convicted, Watson said, calling the law “the appropriate human standard.”

“But, yet, we’re not letting them know?” he said of exonerees. “Well, we ought to be ashamed of that, because we’re not living up to that standard.”