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In re State

Supreme Court of Texas

April 27, 2018

In re State of Texas, Relator

          Argued January 11, 2018

          On Petition for Writ of Mandamus

          Justice Blacklock did not participate in the decision.


          Debra H. Lehrmann, Justice.

         The 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.

         I. Legal and Factual Background

         A. The Act and 2015 Amendments

         Enacted 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.[1] 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.[2]

         Broadly, 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).[3]

          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), (4).[4] 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.

         Subchapter 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. §§ 841.121-.124.[5]

         The Act 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. §§ 841.002(3-a), .005.

         Before 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 confinement").

         In 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.[6] 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).[7]

         Senate 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.

         Act of 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 section.

         B. Procedural Background

         In 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 ...

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