holding that a parolee possesses a liberty interest even “[t]hough the State properly subjects him to many restrictions not applicable to other citizens”
How later courts described this case
- holding that a parolee possesses a liberty interest even “[t]hough the State properly subjects him to many restrictions not applicable to other citizens”
- holding that civilly committed persons have “a liberty interest in being free from inpatient treatment”
- “Although the 6 Case: 21-20450 Document: 00516923125 Page: 7 Date Filed: 10/06/2023 No. 21-20450 district court announced its decision on each party’s respective motion in a single paragraph, the motions were considered separately.”
Written by the judges who cited it.
The opinion
Case: 21-20450 Document: 00516923125 Page: 1 Date Filed: 10/06/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 6, 2023
No. 21-20450 Lyle W. Cayce
____________ Clerk
James Richards,
Plaintiff—Appellant,
versus
Marsha McLane; Harris County, Texas; Judge Natalie
C. Fleming,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-4109
______________________________
Before Jones, Dennis, and Willett, Circuit Judges.
Per Curiam:*
James Richards was adjudicated a sexually violent predator and civilly
committed to outpatient treatment. When the Texas Legislature later
amended its civil commitment law to create a tiered program that allowed for
transfer of civil committees from an outpatient setting to total confinement,
Richards consented to join the new program. He continued to live in the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 21-20450
community as an outpatient for some time but eventually was arrested and
charged with indecent exposure. The county judge released him to a state
agency that transferred him to a civil commitment center. Richards brought
due process claims under § 1983 against the county and the executive director
of the state agency. The district court denied his claims at the summary
judgment stage. We AFFIRM.
I
Richards was adjudicated a sexually violent predator by a
Montgomery County jury in 2003. Under Texas’s Sexually Violent Predator
Act (SVPA),1 the court civilly committed him for outpatient treatment and
supervision “until [his] behavioral abnormality has changed to the extent that
[he] is no longer likely to engage in a predatory act of sexual violence.” After
his commitment, Richards resided for ten years at the Southeast Texas
Transitional Center, a residential facility. In 2015, Richards transitioned to
his private residence in Harris County and continued to receive treatment as
an outpatient.
Also in 2015, the Texas Legislature passed Senate Bill 746, which
amended the SVPA.2 Whereas the prior version of the Act provided
exclusively for outpatient treatment, S.B. 746 instructed the newly created
Texas Civil Commitment Office (TCCO) to develop a tiered program
“provid[ing] for the seamless transition of a committed person from a total
_____________________
1
Before the amendments in 2015, the Sexually Violent Predator Act required civilly
committed persons to “reside in a particular location” and undergo “outpatient treatment
and supervision” coordinated by the Texas Office of Violent Sex Offender Management.
Sexually Violent Predator Act, 76th Leg., R.S., ch. 1188, § 4.01, 1999 Tex. Sess. Law Serv.
(West) (amended 2003) (version previously at Tex. Health & Safety Code
§§ 841.081, 841.082).
2
Act of May 21, 2015, 84th Leg., R.S., ch. 845, 2015 Tex. Sess. Law Serv. (West)
(codified at Tex. Health & Safety Code § 841.001, et seq.).
2
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No. 21-20450
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.”3 The Act provided that adjudicated sexually
violent predators must “reside where instructed by the [TCCO].”4 And it
gave the TCCO authority to place committed persons in more or less
restrictive settings based on the need to protect the community and the
person’s needs for treatment and supervision.5
S.B. 746 also directed courts with jurisdiction over committed
sexually violent predators, after providing notice and a hearing, to amend
civil commitment orders to conform with the legislative changes.6 As a result,
the Montgomery County court with jurisdiction over Richards’s case sent
him a description of the changes to the program and notified him of his right
to a hearing before transfer into the tiered program. Richards waived his right
to a hearing and consented to join the new civil commitment program. The
court entered an order placing Richards in the tiered program, along with an
amended order of civil commitment, which included a provision that
Richards “shall reside where instructed by the TCCO.”
After entry of these orders, Richards continued to live and work in the
community as an outpatient. But in 2018, he was charged with a
misdemeanor offense for indecent exposure after a complainant alleged that
he exposed himself and masturbated on a public train. Richards was arrested
and confined in the Harris County Jail. That same day, the TCCO issued an
_____________________
3
Tex. Health & Safety Code § 841.0831(b).
4
Id. § 841.082(a)(1).
5
Act of May 21, 2015, 84th Leg., R.S., ch. 845, 2015 Tex. Sess. Law Serv. (West)
(amended 2023) (current version at Tex. Health & Safety Code § 841.0834).
6
Act of May 18, 2015, 84th Leg., R.S., ch. 845, § 40(b), 2015 Tex. Sess. Law Serv.
Ch. 845 (West).
3
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No. 21-20450
emergency detention order requiring Richards to be returned to a more
restrictive setting and directing the Harris County Sheriff to release Richards
only to an official authorized by the TCCO.
Richards attended his 24-hour bail/bond hearing, where bail was
initially set at $5,000. But a few days later, Harris County Judge Natalie
Fleming set Richards’s bail/bond to $0 and ordered him to be released to the
TCCO under the emergency detention order. Harris County released
Richards to the TCCO, which transferred him to the Texas Civil
Commitment Center (TCCC), an inpatient civil confinement center in
Littlefield, Texas. Upon arrival, Richards was placed in the TCCC special
management unit due to his pending criminal charge.
On the afternoon of his transfer, Richards received a violation notice
of his right to request a hearing with his committing court to contest the
transfer. The violation notice also gave details of Richards’s violation. It
indicated that Richards lied to his TCCO case manager about the train
incident, allegedly telling his case manager that he was detained and
questioned by the Houston Metro Police about a problem with his Metro fare
but leaving out that he had been questioned about a sexual offense. The
notice also indicated that Richards “[had] recently been impatient and [had]
been pushing the boundaries of treatment.”
Richards chose not to request a hearing to contest his transfer to
TCCC. And for the next two years, while he remained at TCCC and while
this lawsuit was pending, he signed off that he was placed in the appropriate
treatment tier during annual reviews of his tier level.
In 2018, Richards filed this pro se lawsuit in federal court against
numerous defendants, including Harris County and Executive Director of
the TCCO Marsha McLane. He brought several state and federal claims.
Relevant here, he brought substantive and procedural due process claims
4
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No. 21-20450
under 42 U.S.C. § 1983. He sought declaratory relief, injunctive relief, and
damages.
Harris County moved for summary judgment, and Richards filed a
cross-motion for summary judgment. The court granted summary judgment
to Harris County and denied Richards’s cross-motion. Executive Director
McLane also moved for summary judgment, which the court granted. The
court dismissed the claims against various other defendants as well.7 Richards
timely appealed.
II
“We review rulings on motions for summary judgment de novo,
applying the same standards prescribed for use by the district court.” Shaw
Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538 (5th Cir. 2004)
(italics omitted). Summary judgment is warranted “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Where, as here,
parties have filed cross-motions for summary judgment, each motion must be
considered separately because each movant bears the burden of showing that
no genuine issue of material fact exists and that it is entitled to a judgment as
a matter of law.” Am. Int’l Specialty Lines Ins. Co. v. Rentech Steel, L.L.C., 620
F.3d 558, 562 (5th Cir. 2010). Pro se briefs are liberally construed. See Haines
v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).
_____________________
7
Richards also sued Judge Fleming for injunctive relief and damages. The district
court dismissed the claims with prejudice because Judge Fleming was no longer serving as
a judge, so she could not grant Richards injunctive relief, and the doctrine of judicial
immunity protected her from liability for Richards’s claims for damages.
5
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No. 21-20450
III
On appeal, Richards challenges the district court’s grants of summary
judgment to Harris County and McLane on his § 1983 due process claims.
We address each in turn.
A
We start with Harris County. The district court granted summary
judgment to Harris County and denied Richards’s cross-motion for summary
judgment on the ground that Richards failed to establish municipal liability.
On appeal, Richards argues: (1) the district court failed to adequately
consider his cross-motion; and (2) the district court substantively erred in
granting summary judgment to Harris County.
1
Richards first argues that the district court erred by failing to consider
his cross-motion for summary judgment against Harris County separately
from Harris County’s motion for summary judgment. In fact, Richards
argues, “[I]t appears that [the court] didn’t consider [his cross-motion] at
all.”
We disagree. The district court indicated that its opinion granting
summary judgment to Harris County was based on both motions. It
acknowledged that “Richards filed a cross-motion for summary judgment”
and explicitly denied that cross-motion. The court also addressed many of
Richards’s summary judgment arguments throughout its opinion. The mere
fact that the court considered and decided both motions in the same opinion
does not mean they were not considered separately. See Greer v. Richardson
Indep. Sch. Dist., 472 F. App’x 287, 297 (5th Cir. 2012) (“Although the
6
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No. 21-20450
district court announced its decision on each party’s respective motion in a
single paragraph, the motions were considered separately.”). 8
Richards’s confusion may stem from the fact that the district court did
not explicitly address all of his summary judgment arguments. For instance,
the court declined to address Richards’s arguments on the merits of his
substantive due process claim. But the court was not required to address
these arguments because it had already held that there was no Harris County
policy, practice, or custom that infringed Richards’s constitutional rights. 9
Without a policy, practice, or custom, Harris County cannot be liable for
substantive due process violations under § 1983. Monell v. Dep’t of Soc. Servs.
of the City of N.Y., 436 U.S. 658, 694–95 (1978). Thus, the court was not
required to further address Richards’s arguments when those arguments
could not create a dispute of material fact. Accordingly, the district court
fulfilled its duty to consider the cross-motions separately.
2
Richards next argues that the district court substantively erred by
granting summary judgment to Harris County. We disagree. Summary
judgment was proper because Richards failed to identify a policymaker or an
official policy to establish municipal liability.
A municipality can be found liable under § 1983 only where the
municipality itself causes the constitutional violation at issue. Monell, 436
_____________________
8
Greer is “not controlling precedent,” but we cite it as “persuasive authority.”
Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th Cir. R. 47.5.4).
9
Richards argues that the district court failed to address his argument that Judge
Fleming was a final policymaker whose single decision qualified as an official policy.
However, the district court reasoned that Judge Fleming’s decision to cancel bail was not
a county policy but a reaction to an order from a state agency. This was sufficient to address
and resolve Richards’s argument.
7
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No. 21-20450
U.S. at 694–95. “To establish municipal liability under § 1983, a plaintiff
must show that (1) an official policy (2) promulgated by the municipal
policymaker (3) was the moving force behind the violation of a constitutional
right.” Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009). “[A]
single decision may create municipal liability if that decision were made by a
final policymaker responsible for that activity.” Woodard v. Andrus, 419 F.3d
348, 352 (5th Cir. 2005) (quoting Brown v. Bryan Cnty., 67 F.3d 1174, 1183
(5th Cir. 1995)). A county judge can be a policymaker when acting “pursuant
to his or her administrative role” but not when “acting in his or her judicial
capacity to enforce state law.” Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.
1992). A judge acts in a judicial capacity when her actions are “the
effectuation of the policy of the [state] . . . for which the citizens of a
particular county should not bear singular responsibility.” Carbalan v.
Vaughn, 760 F.2d 662, 665 (5th Cir. 1985) (quoting Familias Unidas v. Briscoe,
619 F.2d 391, 404 (5th Cir. 1980)). “A judge’s setting an arrestee’s bail . . . is
part of the state adversary proceedings and a judicial function.” Daves v.
Dallas Cnty., 22 F.4th 522, 539–40 (5th Cir. 2022) (en banc), followed by
Daves v. Dallas Cnty., 64 F.4th 616 (5th Cir. 2023) (en banc) (remanding with
instructions to dismiss).
Richards’s due process claims focus on Judge Fleming’s elimination
of bail. He argued below that Judge Fleming was a final policymaker whose
single decision to cancel bail qualified as an official municipal policy that
violated his substantive and procedural due process rights. The district court
held that Richards failed to establish a Harris County policy, practice, or
custom to establish municipal liability under Monell, explaining that “the
decision by the Criminal Court judge to eliminate Richards’s bond was not
the result of any Harris County policy, practice, or custom, but was a direct
response to the TCCO’s Emergency Detention Order.”
8
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No. 21-20450
We agree with the district court. Richards has not shown that Judge
Fleming was acting as a county policymaker or that cancellation of bail was a
municipal policy. He does not contend that Judge Fleming was promulgating
countywide rules or acting in an administrative role when she canceled his
bail. On the contrary, Judge Fleming’s cancellation of bail was part of state
adversary proceedings and constituted a judicial function. Daves, 22 F.4th at
539. And as the district court pointed out, when Judge Fleming canceled bail
and released Richards to the TCCO, she was acting under an emergency
detention order from a state agency rather than effectuating a county policy.
Richards has failed to create a factual dispute on the policymaker and policy
issues.
We hold that the district court properly granted summary judgment
to Harris County.
B
We turn to Richards’s argument that the district court erred when it
granted summary judgment to Executive Director of the TCCO Marsha
McLane on his due process claims. We start with the preliminary issue of
qualified immunity and then consider Richards’s substantive and procedural
due process claims.
1
First, qualified immunity. Richards seeks injunctive relief from
McLane in her official capacity and damages in her personal capacity. “[A]
state official in his or her official capacity, when sued for injunctive relief, [is]
a person under [42 U.S.C.] § 1983 because official-capacity actions for
prospective relief are not treated as actions against the State.” Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989) (internal quotation marks
omitted). Likewise, plaintiffs can sue state officials in their personal
capacities for damages under § 1983. But those officials are shielded by
9
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No. 21-20450
qualified immunity in certain instances. Reichle v. Howards, 566 U.S. 658,
664–70 (2012).
McLane asserts a qualified immunity defense in response to
Richards’s personal-capacity suit. To assess a qualified immunity defense, a
court must decide: “(1) whether the facts that a plaintiff has alleged make out
a violation of a constitutional right, and (2) whether the right at issue was
clearly established at the time of defendant’s alleged misconduct.” Rivera v.
Bonner, 952 F.3d 560, 564 (5th Cir. 2017) (alteration omitted) (internal
quotation marks omitted). However, Richards’s claims fail because the facts
alleged do not make out a constitutional violation. Thus, our qualified
immunity analysis ends here.
2
Next, substantive due process. Richards argues that McLane violated
his substantive due process rights by: (1) retroactively applying S.B. 746 to
him; (2) placing him in isolation; and (3) acting under a court order that was
void for lack of jurisdiction. He emphasizes that his due process arguments
are as-applied arguments rather than arguments about the facial
constitutionality of S.B. 746. Each of Richards’s arguments fails upon
inspection.
“[T]he Due Process Clause contains a substantive component that
bars certain arbitrary, wrongful government actions ‘regardless of the
fairness of the procedures used to implement them.’” Zinermon v. Burch, 494
U.S. 113, 125 (1990) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).
“Freedom from bodily restraint has always been at the core of the liberty
protected by the Due Process Clause from arbitrary governmental action.”
Foucha v. Louisiana, 504 U.S. 71, 80 (1992).
The district court denied Richards’s substantive due process
argument on the ground that “a person who was civilly committed under the
10
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No. 21-20450
earlier statute [that is, the pre-2015 version of SVPA that required outpatient
treatment] does not have a vested liberty interest in outpatient treatment.”
We reached a similar conclusion on similar facts in our unpublished decision
in Martinez v. McLane. 792 F. App’x 282, 286 (5th Cir. 2019) (per curiam).
In Martinez, we held that a civil committee had no liberty interest in
outpatient treatment because (1) he had violated the conditions of his order
of commitment, and (2) he had consented to enter the tiered program created
by S.B. 746. Id. at 286.
Richards thus has no vested liberty interest in outpatient treatment.
But Richards does have a liberty interest in remaining in the community. See
Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (holding that a parolee has a
liberty interest in not having conditional freedom revoked); In re State, 556
S.W.3d 821, 830 (Tex. 2018) (holding that civilly committed persons have “a
liberty interest in being free from inpatient treatment”). This liberty interest
exists even though Richards’s freedom was contingent on certain conditions
imposed by his order of commitment. See Morrissey, 408 U.S. at 482 (holding
that a parolee possesses a liberty interest even “[t]hough the State properly
subjects him to many restrictions not applicable to other citizens”).
Concluding that Richards possesses a liberty interest, we turn to his
specific arguments, beginning with retroactivity. To determine whether a
statute is applied retroactively, we ask “whether the new provision attaches
new legal consequences to events completed before its enactment.” Lopez
Ventura v. Sessions, 907 F.3d 306, 314 (5th Cir. 2018) (citation omitted).
Retroactive application of laws can violate substantive due process because
“[t]he Due Process Clause . . . protects the interests in fair notice and repose
that may be compromised by retroactive legislation.” Landgraf v. USI Film
Products, 511 U.S. 244, 266 (1994). Thus, a justification sufficient for a
statute’s prospective application under the Clause “may not suffice” for its
retroactive application. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17
11
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No. 21-20450
(1976). “[T]hat burden is met simply by showing that the retroactive
application of the legislation is itself justified by a rational legislative
purpose.” Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 730
(1984).
Richards argues that McLane applied the 2015 amendments to him
retroactively when she put him in the tiered program. Even spotting Richards
the proposition that the statute was applied retroactively to him, his
argument fails. The retroactive application of S.B. 746 to Richards does not
implicate the interests in “fair notice and repose” that due process protects.
See Landgraf, 511 U.S. at 266. Before transfer into the tiered program, the
TCCO gave notice and an opportunity for a hearing, but Richards waived
his rights and consented to enter the program. By the time Richards
transferred to inpatient treatment, his expectation would have been that he
was to “reside where instructed by TCCO,” as stated in his amended court
order. Richards does not identify any authority holding that this
circumstance or one like it, where an individual has consented to be subject to
a new law, constitutes a retroactive application of a law in violation of
substantive due process. Furthermore, the Texas Legislature and the TCCO
had a rational basis for applying the law retroactively. The State’s interest in
uniformity in the civil commitment program and keeping the community safe
by transferring committees to higher levels of care as necessary justified
retroactive application.
Richards next argues that his placement in the TCCC secure
management unit, which he contends was like solitary confinement, was
impermissible punishment of a pretrial detainee and civil committee, in
violation of substantive due process. The purpose of civil commitment “is to
treat the individual’s mental illness and protect him and society from his
potential dangerousness.” Jones v. United States, 463 U.S. 354, 368 (1983).
Civilly committed persons are “entitled to more considerate treatment and
12
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No. 21-20450
conditions of confinement than criminals whose conditions of confinement
are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982).
Additionally, “due process requires that the conditions and duration of
confinement . . . bear some reasonable relation to the purpose for which
persons are committed.” Seling v. Young, 531 U.S. 250, 265 (2001).
Richards’s placement in the secure management unit was consistent
with TCCO standard operating practice for civil committees with outside
pending charges. This policy is not punishment and bears a reasonable
relationship to the purpose for which Richards was committed. In her brief,
McLane explains that “temporary placement in [the secure management
unit] is for the safety and security of the clients and furthers the purpose of
the facility by protecting all clients and limiting disruption of treatment.”
This explanation is reasonable and not clearly “a sham or mere pretext”
adopted to conceal “the forbidden purpose to punish.” Kansas v. Hendricks,
521 U.S. 346, 371 (1997) (Kennedy, J., concurring).
Finally, Richards argues that McLane violated his substantive due
process rights because the court order placing him in the new treatment
program and the amended order of commitment are void for lack of
jurisdiction. Richards was originally committed in the 221st District Court of
Montgomery County, and his case was later transferred to the 435th District
Court. Richards argues that the 435th District Court did not have jurisdiction
to enter the commitment order because it was not the original committing
court. For support, he cites a provision in the SVPA, which says, “The
committing court retains jurisdiction of the case.” 10 However, nowhere does
the Act say that the committing court cannot transfer a case to another court
within the county of proper jurisdiction. Indeed, when the administrative
_____________________
10
Tex. Health & Safety Code § 841.082(d).
13
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No. 21-20450
judge transferred Richards’s case, the 435th District Court of Montgomery
County became the committing court.11
We hold that the district court properly granted summary judgment
to McLane on Richards’s substantive due process claim.
3
Finally, Richards argues that McLane violated his procedural due
process rights by confining him in an inpatient facility in 2018 without a
predeprivation hearing. The district court granted summary judgment to
McLane on this claim, holding that “[b]ecause Richards both waived his right
to a hearing on the change to his tier assignment, and chose not to seek a
hearing following the change in his tier assignment, he fails to identify a
violation of his right to procedural due process.” We agree with the district
court.
“The Fourteenth Amendment’s Due Process Clause protects
persons against deprivations of life, liberty, or property; and those who would
seek to invoke its procedural protection must establish that one of these
interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
Procedural due process claims are subject to a two-step inquiry: “The first
question asks whether there exists a liberty or property interest which has
been interfered with by the State; the second examines whether the
procedures attendant upon that deprivation were constitutionally
sufficient.” Meza v. Livingston, 607 F.3d 392, 399 (5th Cir. 2010) (internal
quotation marks omitted). Procedural due process is “a flexible concept,”
_____________________
11
See Tex. Gov’t Code § 74.093(d) (“When a case is transferred from one
court to another as provided under this section, all processes, writs, bonds, recognizances,
or other obligations issued from the transferring court are returnable to the court to which
the case is transferred as if originally issued by that court.”).
14
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No. 21-20450
and the procedural protections due under the Fourteenth Amendment vary
depending on the circumstances. Zinermon, 494 U.S. at 127.
To discern what process is due, courts apply the Mathews v. Eldridge
balancing test, which weighs several factors:
First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.12
In most cases, the Mathews test will weigh in favor of notice and an
opportunity to be heard prior to the deprivation of a protected interest. See
Bowlby v. City of Aberdeen, 681 F.3d 215, 220 (5th Cir. 2012). However, in
some cases, such as “where a State must act quickly, or where it would be
impractical to provide predeprivation process, postdeprivation process
satisfies the requirements of the Due Process Clause.” Gilbert v. Homar, 520
U.S. 924, 930 (1997). “In particular, where the State acts to abate an
emergent threat to public safety, postdeprivation process satisfies the
Constitution’s procedural due process requirement.” RBIII, L.P. v. City of
San Antonio, 713 F.3d 840, 844 (5th Cir. 2013). Additionally, “where the
potential length or severity of the deprivation does not indicate a likelihood
of serious loss and where the procedures underlying the decision to act are
sufficiently reliable to minimize the risk of erroneous determination,
government may act without providing additional ‘advance procedural
safeguards.’” Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 19 (1978)
(quoting Ingraham v. Wright, 430 U.S. 651, 680 (1977)).
_____________________
12
424 U.S. 319, 335 (1976).
15
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Having already concluded that Richards possesses a liberty interest in
remaining in the community, we undertake the Mathews balancing test to
determine whether the procedures provided were constitutionally sufficient.
We start with the private interest. Richards undoubtedly possesses an
interest in remaining in the community. Although he was subject to “many
restrictions not applicable to other citizens,” Morrissey, 408 U.S. at 482,
while living in his private residence as an outpatient, he enjoyed significant
freedoms that were taken from him in inpatient confinement. He was able to
work, move freely in the community, and see family and friends. However,
Richards’s interest is tempered in some important ways. First, the “length
or severity of the deprivation.” Memphis Light, 436 U.S. at 19. Although
Richards’s civil confinement has lasted years, Richards was given the
opportunity to request a hearing on the day of his transfer to the TCCC. But
he did not request one. Thus, Richards faced only a short period of
confinement without the opportunity for a hearing, which lessens the severity
of the deprivation. Second and critically, Richards consented to joining the
tiered program. He was thus aware, from his amended court order, that he
was to reside where instructed by the TCCO and that he could be moved to
a more restrictive tier.
Next, the risk of erroneous deprivation and the value of additional
procedures. Consider the robust procedures used by the State. At the outset,
Richards was adjudicated to be a sexually violent predatory beyond a
reasonable doubt by a jury of his peers.13 When S.B. 746 was passed, Richards
was given notice of the changes and the right to request a hearing with his
committing court. He waived his right to a hearing and consented to the new
_____________________
13
Tex. Health & Safety Code § 841.062 (“The judge or jury shall
determine whether, beyond a reasonable doubt, the person is a sexually violent predator.”).
16
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No. 21-20450
tiered civil commitment program. When Richards was arrested for public
masturbation, his arrest was subject to the usual probable cause requirement
and protections. On the afternoon of his transfer to the TCCC, he received
a violation notice of his right to request a hearing with his committing court
to contest the transfer. He chose not to request a hearing. Finally, during his
confinement, Richards received annual reviews of his tier level during which
he signed off that he was at the appropriate tier. While there is of course a
risk of erroneous deprivation when a predeprivation hearing is not held, the
process that Richards had already received before his transfer to TCCC
lessened the risk sufficiently. And the prompt annual reports gave Richards
postdeprivation process, further reducing the risk of long-term erroneous
deprivation.
Finally, the State’s interest. The TCCO had a very strong interest in
acting quickly to protect the community and in providing treatment and
supervision to Richards, as quick action is necessary when a civilly committed
person has regressed in treatment or violated a civil commitment rule.
Because Richards was offered bail, the TCCO had to act quickly to make
sure he was not released into the community.
Richards points us to a lower court case, Hitt v. McLane, No. AU-17-
CA-00289-SS, 2019 WL 13080577 (W.D. Tex. Apr. 26, 2019), in which a
civil committee violated a condition of his outpatient treatment by failing to
tell the TCCO about his relationship with his coworker. The district court
concluded that he was entitled to the same due process given in the context
of parole revocation, as outlined by the Supreme Court in Morrissey v. Brewer,
408 U.S. 471 (1972). Id. at *8. Accordingly, the district court held that the
TCCO violated procedural due process by failing to provide a
predeprivation hearing. Id. However, we cannot rely on Morrissey on the facts
before us today. Important differences exist between Richards and a parolee.
First, the State has a greater interest here than in Morrissey in acting quickly
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Case: 21-20450 Document: 00516923125 Page: 18 Date Filed: 10/06/2023
No. 21-20450
to protect the community. Unlike Richards, the parolee in Morrissey was
already incarcerated while he awaited a decision on revocation. See 408 U.S.
at 472–73. Richards, in contrast, was about to be granted bail and potentially
released when the TCCO issued its emergency detention order. Thus, the
State here has an interest in acting quickly to prevent Richards’s release to
protect the community. Second, unlike a parolee, Richards consented to join
a tiered program in which he was directed to reside where instructed by the
TCCO. There was no analogous consent in Morrissey. Because of these
factors, the Mathews calculus comes out differently in this case and does not
require a predeprivation hearing.
In light of Richards’s consent to enter the tiered program, the
promptness of postdeprivation procedures, and the need for quick action to
protect the public, we think the Mathews balancing test weighs in favor of the
State.
Accordingly, the district court properly granted summary judgment to
McLane on the procedural due process issue.
* * *
We AFFIRM.
18