Court of Appeals of Texas, Fourth District, San Antonio
the 274th Judicial District Court, Guadalupe County, Texas
Trial Court No. 15-1805-CV Honorable Gary L. Steel, Judge
Sitting: Luz Elena D. Chapa, Justice Irene Rios, Justice Beth
ELENA D. CHAPA, JUSTICE
Patrick Black was civilly committed in April 2016, after a
jury found him to be a sexually violent predator.
See Tex. Health & Safety Code § 841.081.
This court affirmed the judgment and commitment. See In
re Commitment of Black, 522 S.W.3d 2 (Tex. App.-San
Antonio 2017, pet. denied), cert. denied sub nom. Black
v. Texas, No. 18-5029, 2018 WL 3223824 (U.S. Oct. 1,
2018). In May 2018, the trial court signed a biennial review
order that continued the requirements of the 2016 final
judgment and order of commitment without modification.
seeks to appeal the biennial review order. We questioned our
jurisdiction over the appeal and requested the parties
address the issue of this court's jurisdiction to review
the order by appeal. In response, Black argues the biennial
review order is an appealable final judgment. In the
alternative, he requests the court consider his response to
our show cause order as a petition for a writ of mandamus.
See CMH Homes v. Perez, 340 S.W.3d 444 (Tex. 2011).
841 Biennial Reviews
court that civilly commits a person under Chapter 841 retains
jurisdiction over the case while the commitment order remains
in effect. See Tex. Health & Safety Code §
841.082(d). While the person remains committed, the trial
court is required to review the person's status every two
years. Id. §§ 841.101-.103. In this
process, the Texas Civil Commitment Office contracts with an
expert to conduct an examination of the person. Id.
§ 841.101(a). The Texas Civil Commitment Office then
provides a report of the examination, which includes
consideration of whether the conditions or requirements of
the commitment should be modified and whether the person
should be released, to the court and to the person.
Id. § 841.101(b). See id. The court
then determines whether a requirement imposed on the
committed person should be modified and whether there is
probable cause to believe 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(a), (c). The committed
person is entitled to representation by counsel during a
biennial review; however, the trial court's probable
cause determination need not be made at a formal evidentiary
hearing and the committed person is not entitled to be
present. See id. § 841.102(b); In re
Commitment of Richards, No. 09-14-00243-CV, 2014 WL
3697027, at *3-4 (Tex. App.-Beaumont July 24, 2014, orig.
proceeding [mand. denied]) (mem. op.) (per curiam). If the
court finds there is probable cause to believe 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, the court must set a formal hearing
at which the committed person is "entitled to be present
and to have the benefit of all constitutional protections
provided to the person at the initial civil commitment
proceeding." Id. § 841.103(c). Either
party may demand a jury and the burden of proof is on the
state. Id. However, if the trial court does not find
probable cause to believe the person's behavioral
abnormality has so changed, the review is concluded and no
hearing is held. See id. § 841.102(a).
2018 Biennial Review
to this statutory procedure, Black was examined by an expert
contracted by the Texas Civil Commitment Office, and a report
of the examination was provided to Black and the trial court.
The Texas Civil Commitment Office provided additional
information to the trial court, which the court reviewed by
informal submission. In its May 9, 2018 order concluding the
biennial review, the trial court found "that probable
cause does not exist to believe that Stephen Patrick
Black's behavioral abnormality has changed to the extent
that he is no longer likely to engage in a predatory act of
sexual violence." The court ordered that Black
"remain a committed person pursuant to Chapter 841"
and that "[a]ll requirements of the Final Judgment and
Order of Commitment signed on April 7, 2016, shall remain
unchanged and in full force and effect." Because the
trial court found no probable cause to believe Black's
behavioral abnormality had changed sufficiently or that the
terms of his commitment should be modified, no hearing was
set or held. See id. §§ 841.102(c),
841.103. This is the order Black seeks to appeal.
Texas Constitution vests the courts of appeals with
jurisdiction over appeals from district and county courts,
"subject to any restrictions and regulations prescribed
by law." Tex. Dep't of Pub. Safety v.
Barlow, 48 S.W.3d 174, 176 (Tex. 2001); see
Tex. Const. art. V, § 6(a); Gray v. Rankin, 594
S.W.2d 409, 409 (Tex. 1980) (per curiam) (holding appellate
jurisdiction of courts of appeals "is not unlimited or
absolute, but within constitutional limitations is subject to
control by the Legislature"). The legislature has
limited the constitution's general jurisdictional grant
in civil cases to appeals from final judgments of the
district or county courts in which the judgment or amount in
controversy exceeds $250. Tex. Gov't Code §
22.220(a); Tex. Civ. Prac. & Rem. Code § 51.012;
see Tune v. Tex. Dep't. of Pub. Safety, 23
S.W.3d 358, 361 (Tex. 2000). We have appellate jurisdiction
over other judgments and orders (ones that are not final or
in which the amount in controversy requirement is not
satisfied) only when the legislature has enacted a specific
statutory authorization. See Barlow, 48 S.W.3d at
176; Tune, 23 S.W.3d at 361; see, e.g.,
Tex. Est. Code § 32.001(c) (authorizing appeal of final
orders issued by a probate court); Tex. Fam. Code §
109.002(b) (authorizing appeal of final orders in suit
affecting parent child relationship); id. §
56.01(c) (specifying orders in juvenile proceedings that are
appealable); id. § 81.009 (providing for appeal
of some protective orders); Tex. Health & Safety Code
§§ 574.070, 574.108 (authorizing appeal of orders
for court-ordered mental health services, orders renewing or
modifying such orders, and orders for administration of
medication to patients under court order for mental health
services); Tex. Civ. Prac. & Rem. Code § 51.014
(authorizing appeal of certain interlocutory orders).
Chapter 841, the legislature authorized an appeal of a
factfinder's determination after a trial of whether,
beyond a reasonable doubt, a person is a sexually violent
predator. Tex. Health & Safety Code § 841.062(a);
see In re Commitment of Richards, 395 S.W.3d 905,
908 (Tex. App.-Beaumont 2013, pet. denied). The legislature
did not specifically authorize an appeal from the trial
court's initial probable cause determination in a
biennial review. See Richards, 395 S.W.3d at 908.
Accordingly, the trial court's order in Black's
biennial review is appealable only if it is a final judgment
in which the amount in controversy exceeds $250. See
Tex. Civ. Prac. & Rem. Code § 51.012. We conclude it
is not. The order does not bear the hallmarks of a final
judgment. The biennial review was not initiated by a
party's petition or motion; rather it is a statutorily
required review. The order did not follow a trial or an
evidentiary hearing, or even a structured "paper"
proceeding such as a motion for summary judgment; rather it
followed an informal documentary review. No claims or causes
of action were adjudicated in the order; rather the court
made a statutorily required factual determination, based on
an informal review of documents. And, contrary to Black's
characterization of the order, the court did not "order
[him] to two more years of civil commitment;" rather,
the order simply recited that the 2016 judgment and
commitment order would remain in effect unchanged. Generally,
a post-judgment order that does not follow a new trial and
does not impose any new obligations or "work a material
change in the adjudicative portions of the original
judgment" "does not qualify as another final
judgment" and is not appealable. See McFadin v.
Broadway Coffeehouse, LLC, 539 S.W.3d 278, 283 (Tex.
2017). We conclude a trial court's order finding no
probable cause after a biennial review is not a final
the trial court's order finding no probable cause in the
context of a Chapter 841 biennial review is not appealable.
In this respect, we are in agreement with the only other
court of appeals to have addressed this issue. See In re
Graves, No. 09-17-00287-CV, 2017 WL 4319886, at *1 (Tex.
App.-Beaumont Sept. 28, 2017, no pet.) (mem. op.) (holding
"biennial review order continuing a person's civil
commitment is not an appealable order"); In re
Richards, 395 S.W.3d at 908-10 (holding trial
court's initial determination in biennial review finding
no probable cause is not appealable); see also In re
Dunsmore, No. 01-18-00183-CV, 2019 WL 2180446 (Tex.
App.-Houston [1st Dist.] May 21, 2019, no ...