January 11, 2018
Petition for Writ of Mandamus
Justice Blacklock did not participate in the decision.
H. Lehrmann, Justice.
overarching issue in this mandamus is whether the relator,
designated a sexually violent predator and civilly committed
pursuant to the Civil Commitment of Sexually Violent
Predators Act, was entitled to appointed counsel in
proceedings on the State's motion to amend his civil
commitment order to conform to the Act's 2015 amendments.
Among other things, the amended Act requires commitment to a
tiered treatment program that includes the possibility of
"total confinement, " while the Act's previous
version provided for outpatient treatment only. The trial
court denied the relator's request for counsel and, after
a hearing, entered an amended commitment order. The court of
appeals granted mandamus relief to the relator, ordering the
trial court to vacate its orders and appoint counsel to
represent the relator in further proceedings on the
State's motion. We hold that the court of appeals abused
its discretion and conditionally grant the State's
petition for writ of mandamus.
Legal and Factual Background
The Act and 2015 Amendments
in 1999 and codified in Texas Health and Safety Code chapter
841, the Civil Commitment of Sexually Violent Predators Act
enumerates a "civil commitment procedure for the
long-term supervision and treatment of sexually violent
predators" (SVPs) upon completion of their criminal
sentence. Tex. Health & Safety Code §
841.001. The Act applies to individuals with a
"behavioral abnormality that is not amenable to
traditional mental illness treatment modalities and that
makes the [individuals] likely to engage in repeated
predatory acts of sexual violence." Id. The
Texas Civil Commitment Office is the agency responsible for
"providing appropriate and necessary treatment and
supervision" and "developing and implementing a sex
offender treatment program" for committed persons.
Id. § 841.007.
the Act may be broken down in pertinent part as follows.
Subchapter B provides a procedure for the Texas Department of
Criminal Justice to refer a potential SVP to the state's
attorney, who may file a petition under Subchapter C alleging
SVP status. Id. §§ 841.021-.023, .041.
Subchapter D governs the SVP trial, which the judge
"shall" conduct (1) within 270 days after the date
the petition is served on the person and (2) "not later
than the person's sentence discharge date."
Id. § 841.061(a). The judge (or jury, if
demanded) "shall determine whether, beyond a reasonable
doubt, the person is a sexually violent predator."
Id. §§ 841.061(b), .062(a).
Subchapter E governs the civil commitment of a person
adjudicated an SVP under Subchapter D, commencing with the
judge's entry of an order "commit[ting] the person
for treatment and supervision to be coordinated by the
[O]ffice." Id. § 841.081(a). It also
mandates that the judge impose several requirements "to
ensure the person's compliance with treatment and
supervision and to protect the community." Id.
§ 841.082(a). These include, among others, requirements
that the person reside where instructed, participate in and
comply with treatment provided by the Office, and submit to
appropriate supervision, including tracking under certain
circumstances. Id. § 841.082(a)(1), (3),
The Office is then responsible for determining the conditions
of supervision and treatment and for entering into contracts
for the provision of any necessary supervised housing,
medical and mental health services, and sex offender
treatment. Id. § 841.083.
F requires a biennial expert examination of a person
committed under Subchapter E, accompanied by a judicial
review of the person's status. Id. §§
841.101, .102(a). The judge "shall set a hearing"
if he or she determines at the biennial review that a
requirement imposed on a committed person should be modified
or that "probable cause exists to believe that the
person's behavioral abnormality has changed to the extent
that the person is no longer likely to engage in a predatory
act of sexual violence." Id. § 841.102(c).
Finally, Subchapter G governs a committed person's
petition for release from civil commitment, including the
circumstances under which a judge must set a hearing on such
a petition. See id. §§
requires appointment of counsel to represent an indigent
person subject to a civil commitment proceeding under chapter
841. Id. § 841.005. A "civil commitment
proceeding" is statutorily defined as "a trial or
hearing conducted under Subchapter D, F, or G."
Id. § 841.002(3-a). Thus, the Act mandates the
assistance of counsel, including appointed counsel for
indigent persons, at three stages of the proceedings. First,
when a petition alleging a person is an SVP is initially
filed, the person is "[i]mmediately" entitled to
counsel "at all stages of the [Subchapter D]
proceeding." Id. § 841.144(a). Second, a
committed person is entitled to counsel at each biennial
review under Subchapter F. Id. § 841.102(b).
Third, assistance of counsel is required at a hearing
conducted on a person's petition for release from civil
commitment under Subchapter G. Id. §§
the 2015 amendments, the Act required the judge to commit a
person determined to be an SVP for "outpatient treatment
and supervision." Act of May 31, 1999, 76th Leg., R.S.,
ch. 1188, § 4.01, 1999 Tex. Gen. Laws 4143, 4147,
amended by Act of May 21, 2015, 84th Leg., R.S., ch.
845, § 12, 2015 Tex. Gen. Laws 2701, 2706. This included
requiring the person "to reside in a Texas residential
facility under contract with the office or at another
location or facility approved by the office." Act of May
24, 2005, 79th Leg., R.S., ch. 849, § 3, 2005 Tex. Gen.
Laws 2890, 2891, amended by Act of May 26, 2011, 82d
Leg., R.S., ch. 1201, § 8, 2011 Tex. Gen. Laws 3197,
3201. The Act also imposed severe criminal penalties for
violations of treatment requirements and other conditions
imposed in a commitment order. See In re Commitment of
Fisher, 164 S.W.3d 637, 652 (Tex. 2005) (noting that the
"Texas SVP scheme is unique in that it provides for
outpatient commitment and, perhaps consequently, imposes
severe criminal penalties for violating a condition of
2015, the Legislature passed Senate Bill 746, which amended
the Act to, among other things, replace the required
"outpatient" treatment with the development of a
"tiered" treatment program providing "for the
seamless transition of a committed person from a total
confinement facility to less restrictive housing and
supervision and eventually to release from civil commitment,
based on the person's behavior and progress in
treatment." Act of May 21, 2015, 84th Leg., R.S., ch.
845, § 16, 2015 Tex. Gen. Laws 2701, 2706 (codified at
Tex. Health & Safety Code § 841.0831); see also
id. § 12, 2015 Tex. Gen. Laws at 2704 (deleting the
reference to "outpatient" treatment in section
841.081). The amended Act also enumerates a procedure for a
committed person's movement between program tiers, both
from more restrictive to less restrictive and vice versa.
Tex. Health & Safety Code § 841.0834. Thus, while
the Act's prior version contemplated significant
limitations on an SVP's housing and movements, the
amended Act goes further by authorizing "total
confinement, " at least in the more restrictive
treatment tiers. Along with the transition to a tiered
treatment program, the amended Act removes the criminal
penalties for noncompliance with treatment requirements and
other obligations imposed by the Office. Act of May 21, 2015,
84th Leg., R.S., ch. 845, § 19, 2015 Tex. Gen. Laws
2701, 2708 (codified at Tex. Health & Safety Code §
841.085(a)); see Richards v. Taylor, No. H-13-1394,
2015 WL 5310853, at *4 (S.D. Tex. Sept. 11, 2015) (describing
the 2015 amendments to the Act).
Bill 746 also contains a procedure for modifying the civil
commitment orders of persons committed before the amended
Act's effective date, stating:
If a civil commitment requirement imposed under Chapter 841,
Health and Safety Code, before the effective date of this Act
differs from any of the civil commitment requirements listed
in Section 841.082, Health and Safety Code, as amended by
this Act, the applicable court with jurisdiction over the
committed person shall, after notice and hearing, modify the
requirement imposed as applicable to conform to that section.
May 21, 2015, 84th Leg., R.S., ch. 845, § 40(b), 2015
Tex. Gen. Laws 2701, 2712; see also Tex. Health
& Safety Code § 841.082(e). This mandamus proceeding
arises out of a civil commitment order modified under that
November 2010, a jury unanimously found beyond a reasonable
doubt that Clarence Brown was an SVP. The trial court
rendered final judgment on the verdict and ordered Brown
"civilly committed . . . in accordance with Texas Health
& Safety Code § 841.081 for outpatient treatment and
supervision." The court of appeals affirmed. In re
Commitment of Brown, No. 09-10-00589-CV, 2012 WL 4466348
(Tex. App.-Beaumont Sept. 27, 2012, pet. denied) (mem. op.).
The trial court also signed a civil commitment order imposing
various requirements on Brown under section ...