Appendix — Fisher v. Texas

App. 1

IN RE COMMITMENT OF MICHAEL FISHER

NO. 04-0112

SUPREME COURT OF TEXAS

164 S.W.3d 637; 2005 Tex. LEXIS 394; 48 Tex. Sup. J. 684

November 30, 2004, Argued

May 20, 2005, Delivered

COUNSEL: For The State of Texas, Petitioner: Mr. Ryan

D. Clinton, Asst. Solicitor General, Austin, TX; Honorable

Greg Abbott, Attorney General of Texas, Austin, TX; Mr.

Barry Ross McBee, Mr. Edward D. Burbach, Mr. Rafael

Edward Cruz, Office of the Attorney General, Austin TX.

For Michael Fisher, Respondent: Mr. Kenneth W.

Balusek, Mr. Daniel E. Maeso, Ms. Nelda F. Williams,

State Counsel for Offenders, Huntsville, TX; and Ms. Kim

B. Vernon, Division Director, Huntsville, TX.

For Special Prosecution Unit, Amicus Curiae: Ms.

Autumn Lewis, Special Prosecution Unit, Civil Division,

Huntsville, TX.

JUDGES: CHIEF JUSTICE JEFFERSON delivered the

opinion of the Court. JUSTICE JOHNSON did not partici-

pate in the decision.

OPINION BY: Wallace B. Jefferson

OPINION:

CHIEF JUSTICE JEFFERSON delivered the opinion

of the Court.

A jury determined that Michael James Fisher suffered

from a behavioral abnormality that made him likely to

engage in a predatory act of sexual violence, and the trial

App. 2

court ordered Fisher committed pursuant to the Civil

Commitment of Sexually Violent Predators Act (the Act“).

The court of appeals reversed, holding that the Act was

punitive, not civil, and violated Fisher’s due process

rights. Because we conclude that a commitment proceed-

ing under the Act is civil and that Fisher received the

process he was due under the United States and Texas

Constitutions, we reverse the court of appeals’ judgment

and render judgment civilly committing Fisher pursuant

to the Act.

I. Civil Commitment of Sexually Violent Predators

Fisher argues that the Act denies procedural and

substantive protections to those alleged to be sexually

violent predators. To assess the merits of this argument,

we must examine how the statute operates with respect to

a person adjudged to be a predator under the Act. In 1999,

the Legislature enacted the Civil Commitment of Sexually

Violent Predators Act, now codified at chapter 841 of the

Health and Safety Code. See The Civil Commitment of

Sexually Violent Predators Act, 76th Leg., R.S., ch. 1188,

§ 4.01, 1999 Tex. Gen. Laws 4143 (codified as amended at

TEX. HEALTH & SAFETY CODE ch. 841). In so doing,

the Legislature found that:

[A] smal] but extremely dangerous group of

sexually violent predators exists and ... those

predators have a behavioral abnormality that is

not amenable to traditional mental illness

treatment modalities and that makes the preda-

tors likely to engage in repeated predatory acts of

sexual violence. The legislature finds that the ex-

isting involuntary commitment provisions of

Subtitle C, Title 7, are inadequate to address the

App. 3

risk of repeated predatory behavior that sexually

violent predators pose to society. The legislature

further finds that treatment modalities for sexu-

ally violent predators are different from the tra-

ditional treatment modalities for persons

appropriate for involuntary commitment under

Subtitle C, Title 7. Thus, the legislature finds

that a civil commitment procedure for the long-

term supervision and treatment of sexually vio-

lent predators is necessary and in the interest of

the state.

TEX. HEALTH & SAFETY CODE § 841.001. A sexually

violent predator (“SVP”) is a “repeat sexually violent

offender” who “suffers from a behavioral abnormality that

A “repeat sexually violent offender” is a person who:

is convicted of more than one sexually violent offense and a

sentence is imposed for at least one of the offenses or if:

(1) the person:

(A) is convicted of a sexually violent offense, re-

gardless of whether the sentence for the offense was

ever imposed or whether tho sentence was probated

and the person was subsequently discharged from

community supervision;

(B) enters a plea of guilty or nolo contendere for

a sexually violent offense in return for a grant of de-

ferred adjudication;

(C) is adjudged not guilty by reason of insanity

of a sexually violent offense;

(D) is adjudicated by a juvenile court as having

engaged in delinquent conduct constituting a sexually

violent offense and is committed to the Texas Youth

Commission under Section 54.04(d)(3) or (m), Family

Code; and

(2) after the date on which under Subdivision (1) the per-

son is convicted receives a grant of deferred adjudication, is

adjudged not guilty by reason of insanity, or is adjudicated

by a juvenile court as having engaged in delinquent conduct,

(Continued on following page)

App. 4

makes the person likely to engage in a predatory act of

sexual violence.” Jd. § 841.003(a). A “behavioral abnormal-

ity” is “a congenital or acquired condition that, by affecting

a person’s emotional or volitional capacity, predisposes the

person to commit a sexually violent offense, to the extent

that the person becomes a menace to the health and safety

of another person.” Jd. § 841.002(2).

The Act creates a multidisciplinary team to review

available records of an SVP candidate. Id. § 841.022. The

Texas Department of Criminal Justice TDC“) or the

Texas Department of Mental Health and Mental Retarda-

tion (“TDMHMR”) must notify the multidisciplinary team

of the anticipated release of a person who is serving a

sentence for a sexually violent offense (or who was com-

mitted after having been adjudged not guilty by reason of

insanity of a sexually violent offense) and who may be a

“repeat sexually violent offender.” Jd. § 841.021. Within

sixty days of the notice, the team must (1) determine

whether the person is a repeat sexually violent offender

and whether the person is likely to commit another such

offense after release; (2) give notice of that determination;

and (3) recommend the assessment of the person for a

behavioral abnormality. Id. § 841.022(c).

the person commits a sexually violent offense for which the

person

(A) is convicted, but only if the sentence for the of-

fense is imposed, or

(B) is adjudged not guilty by reason of insanity.

TEX. HEALTH & SAFETY CODE § 841.003. Thus, al-

though the Act uses the term “offender” it includes even

those persons adjudged not guilty by reason of insanity Id

App. 5

Within sixty days of the team’s recommendation, the

TDCJ or the TOMHMR, as appropriate, must engage an

expert to determine whether the person suffers from a

behavioral abnormality that makes the person likely to

engage in a predatory act of sexual violence. Id.

§ 841.023(a). If the TDCJ or the TOMHMR concludes that

the person suffers from a behavioral abnormality, the

department must give notice and corresponding documen-

tation to the state’s attorney’ not later than sixty days

after receiving the team’s recommendation. Id.

§ 841.023(b).

If an SVP = didate is referred to the state’s attorney,

the attorney may file, in a Montgomery County’ district

court other than a family district court, a petition alleging

that the person is a sexually violent predator and stating

facts sufficient to support the allegation. Id. § 841.041(a).

The petition must be filed not later than ninety days after

the SVP candidate is referred to the states attorney, and it

must be served as soon as practicable after filing. Id.

§ 841.041(b).

Within 270 days after the petition is served, the judge

must conduct a trial to determine whether the person is an

SVP. Id. § 841.061(a). The alleged SVP has the right to an

immediate examination by an expert and to a jury trial.

Additionally, the alleged SVP is entitled to appear at the

* The “attorney representing the state” means an attorney

employed by the prison prosecution unit to initiate and pursue a civil

commitment proceeding under the Act. TEX. HEALTH & SAFETY

CODE § 841.002(1).

* The Act requires that all SVP petitions be filed in Montgomery

County. Id § 841.041(a). Montgomery County is adjacent to Walker

County, home to the Texas State Penitentiary at Huntsville.

App. 6

trial, present evidence, cross-examine witnesses, and view

and copy all petitions and reports in the court file. Id.

§§ 841.061(b)-(d). At all stages of the proceedings, the

alleged SVP is entitled to the assistance of counsel, and

indigents are appoirted counsel by the court.‘ Id.

§ 841.144. A judge or jury then determines whether,

beyond a reasonable doubt, the person is an SVP. A jury

determination must be unanimous. Id. § 841.062.

If a person is adjudged an SVP, the judge must com-

mit the person for outpatient treatment and supervision,

to begin on the date of the SVP’s release from a correc-

tional facility or discharge from a state hospital and to

continue “until 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.” /d.

§ 841.081. Before entering an order directing an SVP

outpatient civil commitment, the judge must impose on

the SVP “requirements necessary to ensure the SVP’s

compliance with treatment and supervision and to protect

the community.” Id. §841.082(a). Those constraints

include: requiring the SVP to live in a particular location;

prohibiting contact between the SVP and victims or

potential victims; prohibiting the SVP’s use of alcohol,

inhalants, or controlled substances; requiring participa-

tion in and compliance with a particular course of treat-

ment; requiring the SVP to submit to tracking and refrain

from tampering with tracking equipment; prohibiting the

SVP from changing residence withou* prior authorization;

and “any other requirements determined necessary by the

In such u case, the court appoints counsel through the Office of

State Counsel for Offenders. TEX. HEALTH & SAFETY CODE

$§ 841.005, 841.144(b).

App. 7

-

judge.” Id. Violation of one of the commitment require-

ments is a third-degree felony. Id. § 841.085.

The statute provides for biennial expert examinations

and judicial review of the committed person's status. Id.

§§ 841.101, 841.102. Additionally, if the case manager

determines that the SVP’s behavioral abnormality has

changed to the extent that he or she is no longer likely to

engage in a predatory act of sexual violence, the case

manager must authorize the SVP to petition for release.

Id. § 841.121(a). Finally, at any time and even absent the

case managers authorization, the SVP has the right to file

a petition for release. See id. §§ 841.122-24.

In passing the Act, Texas became one of seventeen

states that has enacted legislation providing for the civil

commitment of sexually violent predators. See ARIZ. REV.

STAT. §§ 36-3701 to 3717; CAL. WELF. & INST. CODE

§§ 6600-6609.3; FLA. STAT. ANN. §§ 394.910-.931; 725

ILL. COMP. STAT. 207/1-99; IOWA CODE §§ 229A.1-.16;

KAN. STAT. ANN. §§ 59-29a01 to 29a21; MASS. GEN.

LAWS ch. 123A, §§ 1-16; MINN. STAT. 56 253B.185(1)-(7);

MO. ANN. STAT. §§ 632.480-.513, NJ. STAT. ANN.

§§ 30:4-27.24 to 27.38; N. D. CENT. CODE §§ 25-03.3-01 to

03.3-23; 42 PA. CONS. STAT. §§ 6401-6409; S.C. CODE

ANN. §§ 44-48-10 to 170; VA. CODE ANN. §§ 37.1-70.1-

.19; WASH. REV. CODE §§ 71.09.010-.902; WIS. STAT.

§§ 980.01-.12. All but Texas have chosen to use inpatient

civil commitment, which requires housing the individuals

in secure facilities like a prison. Walter J. Meyer, III et al.,

A petition for release filed without the case manager's authoriza-

tion, however, is subject to a more stringent standard of review by the

trial court. See TEX. HEALTH & SAFETY CODE § 841.123.

App. 8

Outpatient Civil Commitment in Texas for Management

and Treatment of Sexually Violent Predators: A Prelimi-

nary Report, 47(4) INTL J. OFFENDER THERAPY &

COMP. CRIMINOLOGY 396, 397 (2003). By contrast, the

Texas Act requires outpatient “commitment,” involving

intensive treatment and supervision. Jd. The Texas Act is

also unique in that it imposes criminal penalties for

violating the conditions of confinement.“ See TEX.

HEALTH & SAFETY CODE § 841.085.

To date, two of our courts of appeals have upheld the

Act’s constitutionality against various challenges. Jn re

Commitment of Browning, 113 S. Wad 851, 866 (Tex.App.-

Austin 2003, pet. denied), Beasley u Molett, 95 S. W.ad 590,

609 (Tex.App.-Beaumont 2002, pet. denied). A third, the

court of appeals in this case, has held that the Act is

“manifestly punitive, both facially and as applied,” and,

therefore, unconstitutional. 123 S.W.3d 828, 850.

Il. Background

On January 20, 1987, Michael James Fisher pleaded

guilty to second-degree sexual assault and was sentenced

* Some states that utilize inpatient commitment do, however,

impose criminal penalties for escape from confinement or leaving the

state without permission. See, eg, FLA. STAT. § 394.927(1) (creating

second-degree felony for escape or attempted escape from civil commit-

ment confinement); IOWA CODE § 229A.6B(2) (imposing criminal

penalties on individuals who (1) leave or attempt to leave commitment

facilities, (2) are absent “from a place where the person is required to be

present,” or (3) leave or attempt to leave the custody of civil-

commitment personnel); MO.REV.STAT. § 575.195 (criminalizing an

escape from commitment or detention), VA CODE § 37.1-70.19 (impos-

ing criminal penalties on committed individuals on conditional release

who leave state without permission).

App. 9

to two years’ confinement in the Texas Department of

Corrections. While on parole for that conviction, on August

17, 1987, Fisher was again indicted, this time for first-

degree aggravated sexual assault. Fisher pleaded guilty to

that charge and was sentenced to ten years’ confinement.

While on parole for that conviction, Fisher was charged

with, but not convicted of, assault in June 1996. His parole

was revoked at that time. In May 1999, he again violated

the conditions of his release, and his parole was once more

revoked. On numerous occasions between 1991 and 1996,

Fisher was hospitalized for psychiatric problems. On

October 25, 2000, the State of Texas petitioned to have

Fisher adjudicated a sexually violent predator. Fisher filed

a general denial and demanded a jury trial.

A jury was impaneled, and the case proceeded to trial.

Fisher moved for a hearing on his competency to stand

trial. Outside the presence of the jury, the trial court

conducted an evidentiary hearing, in which Fisher’s two

experts testified that Fisher was mentally incompetent.

The first expert, an attorney-psychologist. testified that

Fisher lacked a factual or rational knowledge of the

proceedings and was unable to assist in his defense. The

second, Fred Lanier Fason, M.D., a psychiatrist, agreed

that Fisher was incompetent and did not have a present

ability to consult with his lawyer with a reasonable degree

of rational understanding. The State did not offer contro-

verting evidence. The trial court denied the motion.

At trial, Dr. Fason testified that Fisher suffered from

paranoid schizophrenia, antisocial personality disorder,

and mild mental retardation. Fason agreed that Fisher's

problems with impulse control could be described as “a

semi careening down a hill without brakes.” Fason testi-

fied that Fisher would be a severe danger to others if

App. 10

released, unless new or different medication proved more

effective in curbing his criminal impulses.

Doug Bertling, a licensed psychologist employed by

the Sex Offender Treatment Program, testified on behalf of

the State. Bertling conducts risk assessments on sex

offenders and uses actuarial variables to predict future

sexual reoffense. Bertling testified that his office evaluates

the approximately fifty sex offenders who are released “to

the streets” each week in Texas. Bertling completed two

risk assessment evaluations on Fisher: the Static 99 and

the MnSOST-R. On the Static 99, Fisher received a score

of four, which placed him in the high risk category for

future sexual reoffense. Fisher scored a ten on the

MnSOST-R, indicating a seventy percent recidivism level.

Dr. Billy Burleson, a licensed psychologist, also

testified on behalf of the State. Burleson interviewed

Fisher and concluded that Fisher suffered from antisocial

personality disorder According to Burleson, individuals

suffering from this disorder have no conscience, no respect

for legal authority, are self-centered, and tend to have a

higher sex drive than others. Burleson also testified that

Fisher suffered from paranoid schizophrenia; he did not

consider himself guilty of his sexual offenses and claimed

the victims accused him wrongly. In Burleson’s opinion,

“due to his mental illness and mental retardation, Fisher’s

insight and judgment are considered highly unreliable.”

Burleson recommended that Fisher be considered for

indefinite civil commitment upon his release. In Burleson’s

" Burleson testified that antisocial personality disorder was

formerly known as psychopathy, and that they mean] the same

thing.”

App. 11

opinion, there was a high probability that, “given the

opportunity, [Fisher] would likely offend again.” According

to Burleson, Fisher needed close supervision and monitor-

ing and would benefit from working with a case worker.

Burleson testified that Fisher was the type of individual

likely to commit a predatory act in the future, and it was

significant to Burleson that Fisher violated his parole and

raped another woman while on parole.

Dr. Lisa Kay Clayton, a forensic psychiatrist, also

testified on behalf of the State. She agreed that Fisher was

schizophrenic, suffered from antisocial personality disor-

der and was borderline mentally retarded. According to

Clayton, while Fisher was an inpatient at Rusk State

Hospital, he tried to kick out a window, threatened to beat

an officer to death, and threatened to rape and strangle a

nurse. Clayton testified that Fisher had a very high

likelihood of reoffending, and agreed with Fason’s analogy

that Fisher was like a “large truck going downhill with no

brakes.” She testified that medication and a very struc-

tured, monitored environment might provide “brakes” for

Fisher. In her opinion, if Fisher stayed on his medication,

he had a high likelihood of success in complying with the

civil commitment requirements.

The trial court admitted certified copies of Fisher's

two penitentiary packets detailing his 1987 sexual assault

and aggravated sexual assault convictions. At the close of

evidence, on the State's motion, the trial court directed a

verdict that Fisher was a repeat sexually violent offender

as defined in the Act. After deliberating for approximately

two-and-a-half hours, the jury unanimously found, beyond

a reasonable doubt, that Fisher suffered from a behavioral

abnormality that made him likely to engage in a predatory

act of sexual violence.

App. 12

The trial court made findings of fact and conclusions

of law and rendered judgment on June 12, 2001. The

judgment ordered Fisher committed to treatment and

supervision by the Council on Sex Offender Treatment.

The judgment imposed several requirements on Fisher: he

must live at a residence approved by his case manager; he

is prohibited from participating in programs involving

children or going within 1000 feet of premises where

children commonly gather; he must be fitted with satellite

monitoring equipment; he must provide blood and hair

samples to the State’s DNA Data Bank; he must not

contact the victims of his crimes; he must reside in Texas

and must not leave the state without court authorization;

he must not consume alcohol or controlled substances; and

he must “comply with all terms and conditions of this

court, his treatment provider and case manager and enter

into a written agreement with his treatment provider and

case manager specifying all of the terms and conditions of

his treatment and case management including as are

attached in Civil Commitment Requirements: Treatment

and Supervision Contract.” An unsigned copy of the

Treatment and Supervision Contract is appended to the

judgment and contains some ninety-seven additional

conditions by which Fisher must abide.

Fisher moved for a new trial, asserting that the trial

court abused its discretion in denying his request that a

jury determine his competency to stand trial, depriving

him of substantive and procedural due process. After a

hearing, the trial court denied the motion.

Fisher appealed, contending that the Act was puni-

tive, both facially and as applied, because he did not have

the mental ability to understand or comply with the

commitment order. Second, Fisher argued that his due

App. 13

process rights were violated because he was forced to

proceed to trial when he was incompetent. The court of

appeals, sitting en banc with one justice dissenting, agreed

with Fisher, concluding that the Act was punitive and that

“Fisher was denied substantive and procedural due proc-

ess.” 123 S.W.3d at 850-851. It held that Fisher was

entitled to rights under the criminal law, including the

right to effectively exercise his right to counsel and the

right to be competent at trial. Jd. at 850. Additionally, the

court of appeals concluded that “substantive due process

requires [that Fisher] be mentally competent to comply

with the order of commitment.” Jd. Because the court of

appeals “only addressed Fisher’s complaints concerning

his mental incapacity,” it did not reach Fisher’s other

complaints.’ Jd. at 831-32. We granted the State’s petition

for review to address several aspects of the Act's constitu-

tionality. 47 Tex. Sup. Ct. J. 1028 (Sept. 3, 2004).

III. Constitutional Challenges

It is unclear whether the court of appeals based its

decision on the United States Constitution, the Texas

Constitution, or both. See, e.g., 123 S.W.3d at 837, 850.

Where, as here, the parties have not argued that differ-

ences in state and federal constitutional guarantees are

material to the case, and none is apparent, we limit our

analysis to the United States Constitution and assume

that its concerns are congruent with those of the Texas

Constitution. New Times, Inc. v. Isaacks, 146 8.W.3d 144,

* Fisher also alleged that the statute and commitment order were

unconstitutionally vague and that requiring him to testify violated his

fifth amendment privilege against self-incrimination. 123 S.W.3d at

831.

App. 14

150, 47 Tex. Sup. Ct. J. 1140 (Tex. 2004). An analysis of the

constitutionality of a statute begins with a presumption of

validity. Barshop v. Medina County Underground Water

Conservation Dist., 925 S.W.2d 618, 629, 39 Tex. Sup. Ct.

J. 858 (Tex. 1996).

A. Due Process

In determining Fisher's competency-related due

process rights, we must first examine whether the Act is

punitive, not civil, as the court of appeals held. 123 S.W.3d

at 850; see also Kansas v. Hendricks, 521 U.S. 346, 360-69,

138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997) (evaluating

whether Kansas statute was civil or criminal to determine

validity of SVP’s double jeopardy and ex post facto claims).

While the criminal trial of an incompetent defendant -

violates due process, see Medina v. California., 505 U.S.

437, 453, 120 L. Ed. 2d 353, 112 S. Ct. 2572 (1992),

McDaniel u. State, 98 S.W.3d 704, 709 (Tex. Crim. App.

2003) (“The conviction of an accused person while he is

legally incompetent violates due process), generally civil

cases may proceed even if one party is incompetent, see,

e. g., TEX. HEALTH & SAFETY CODE § 576.001(3);

Stubbs v. Ortega, 977 8.W °d 718, 722 (Tex. App. — Hous-

ton 1998, pet. denied). “The same concerns and concomi-

tant protections that arise in a criminal case do not

necessarily arise in the SVPI] area,” and “this principle is

key to the determination of whether [an SVP) holds a

fundamental right to be competent during the SVFI

proceedings.” In re Cubbage, 671 N.W.2d 442, 447 (lowa

2003). Competency claims can raise both substantive and

procedural due process concerns. Walton v. Angelone, 321

F.3d 442, 459 (4th Cir. 2003); Gilbert v. Mullin, 302 F.3d

1166, 1178 (10th Cir. 2002).

App. 15

In Kansas v. Hendricks, the United States Supreme

Court upheld the constitutionality of a Kansas statute

providing for inpatient civil commitment of sexually

violent predators.” 521 U.S. at 371. The Court recognized

that while freedom from physical restraint has always

been at the core of the liberty the due process clause

protects, that liberty interest is not absolute and may be

overridden even in the civil context. Id. at 356.

Accordingly, States have in certain narrow cir-

cumstances provided for the forcible civil de-

tainment of people who are unable to contro!

their behavior and who thereby pose a danger to

the public health and safety. See, e.g., 1788 N. V.

Laws, ch. 31 (Feb. 9, 1788) (permitting confine-

ment of the “furiously mad”); see also A. Deutsch,

The Mentally Ill in America (1949) (tracing his-

tory of civil commitment in the 18th and 19th

centuries); G. Grob, Mental Institutions in Amer-

ica: Social Policy to 1875 (1973) (discussing colo-

nial and early American civil commitment

statutes). We have consistently upheld such in-

voluntary commitment statutes provided the con-

finement takes place pursuant to proper

U.S. 418, 426-27, 60 L. Ed. 2d 323, 99 8. Ct. 1804

(1979). It thus cannot be said that the involun-

tary civil confinement of a limited subclass of

dangerous persons is contrary to our understand-

ing of ordered liberty.

* The court of appeals stated, incorrectly, that Hendricks was a

“plurality opinion.” 123 S.W.3d at 839. Five justices joined the opinion,

making it the opinion of the Court. Hendricks, 521 U.S. at 348 (“THO-

MAS J., delivered the opinion of the Court, in which REHNQUIST, CJ.

and O'CONNOR, SCALIA, and KENNEDY, JJ., joined.”).

App. 16

Id. at 357. The Court examined the Kansas act and

noted that it was “of a kind” with other civil commitment

statutes: It required a finding of future dangerousness and

then linked that finding to the existence of a “mental

abnormality” or “personality disorder” that made it diffi-

cult, if not impossible, for the person to control his or her

dangerous behavior. Id. at 358. Thus, the Court concluded

that the Kansas statute’s definition of “mental abnormal-

ity” satisfied substantive due process requirements. Id. at

360. The Court also determined that the Kansas SVP

statute was civil and therefore “comported with due

process requirements and neither [ran] aſoul of double

jeopardy principles nor constituted an exercise in imper-

missible ex post facto lawmaking.” Id. at 371.

Relying on Hendricks, courts in fourteen states have

determined that their SVP civil commitment schemes are

civil, not criminal. See In re Leon G., 204 Ariz. 15, 59 P.3d

779, 782 (Ariz. 2002); Hubbart v. Superior Court, 19 Cal.

4th 1138, 81 Cal. Rptr. 2d 492, 969 Pd 584, 606-11 (Cal.

1999), Westerheide u State, 831 So.2d 93, 103 (Fla. 2002);

In re Det. of Samuelson, 189 Ul. 2d 548, 727 N.E.2d 228,

234-35, 244 Ill. Dec. 929 (NI. 2000); In re Det. of Garren,

620 N.W.2d 275, 279-83 (lowa 2000); In re Hay, 263 Kan.

822, 953 Pad 666, 673 (Kan. 1998),

Commonwealth v. Bruno, 432 Mass. 489, 735 N.E.2d

1222, 1230-32 (Mass. 2000); In re Linehan, 594 N.W.2d

867, 870, 878 (Minn. 1999); In re Gibson, S W.3d __,

— 2004 Mo. App. LEXIS 513 (Mo. Ct. App. 2004); In re

Civil Commitment of J.H.M., 367 N.J. Super. 599, 845

A.2d 139, 144 (N. J. Super Ct. App. Div. 2003); In re M. D.,

1999 ND 160, 598 N.W.2d 799, 805-06 (N.D. 1999); In re

Matthews, 345 S.C. 638, 550 S.E.2d 311, 316-17 (S.C.

2001); In re Det. of Turay, 139 Wn.2d 379, 986 P.2d 790,

App. 17

812-13 (Wash. 1999); In re Commitment of Rachel, 2002

WI 81, 254 Wis. 2d 215, 647 N.W.2d 762, 777-78 (Wis.

2002); see also State v. Bellamy, 178 N.J. 127, 835 A.2d

1231, 1237 (N.J. 2003) (holding that legislative intent

behind SVP act was regulatory, not punitive); McCloud v.

Commonwealth, 269 Va. 242, 609 S.E.2d 16, 21 (Va. 2005)

(noting that “a proceeding under the SVPA is a civil one”).

1. Legislative Intent

In determining whether a statute is civil or criminal, a

court must first ascertain whether the legislature intended

the statute to establish civil proceedings. “Determining the

civil or punitive nature of an Act must begin with refer-

ence to its text and legislative history.” Seling v. Young,

531 U.S. 250, 262, 148 L. Ed. 2d 734, 121 S. Ct. 727 (2001).

“A court must first ask whether the legislature, ‘in estab-

lishing the penalizing mechanism, indicated either ex-

pressly or impliedly a preference for one label or the

other Hudson v. United States, 522 U.S. 93, 99, 139 L.

Ed. 2d 450, 118 S. Ct. 488 (1997) (quoting United States v.

Ward, 448 U.S. 242, 248, 65 L. Ed. 2d 742, 100 S. Ct. 2636

(1980)). A court will reject the legislature’s manifest intent

only where a party challenging the Act provides “‘the

clearest proof’” that the statutory scheme is so punitive in

either purpose or effect as to negate the State’s intention.

Hendricks, 521 U.S. at 361 (quoting Ward, 448 U.S. at

248-49). Because a court first examines legislative intent

then proceeds to review the statutory effects, this process

has become known as the “intent-effects test.” See Moore v.

Avoyelles Corr. Ctr., 253 F.3d 870, 872 (Sth Cir. 2001). The

categorization “‘is first of all a question of statutory

construction, and if the Legislature meant to establish

civil proceedings, we generally defer to the legislature's

App. 18

stated intent. Hendricks, 521 U.S. at 361 (quoting Allen uv

Illinois, 478 U.S. 364, 368, 92 L. Ed. 2d 296, 106 S. Ct.

2988 (1986)).

The Texas statute refers to a “civil commitment

procedure,” much like the Kansas statute at issue in

Hendricks. See id.; TEX. HEALTH & SAFETY CODE

§ 841.001. Additionally, the legislative findings state that

public safety and treatment — not punishment - are the

primary statutory goals. See id. § 841.001 (citing legisla-

tive finding that “a civil commitment procedure for the

long-term supervision and treatment of sexually violent

predators is necessary and in the interest of the state”);

Hendricks, 521 U.S. at 383 (Breyer, J., dissenting) (“We

have generally given considerable weight to the findings of

state and lower federal courts regarding the intent or

purpose underlying state officials’ actions. ). Unques-

tionably, the Legislature gave the Act a civil edifice.

2. Statute’s Purposes and Effects

Although this “civil label is not always dispositive,”

Allen, 478 U.S. at 369, we will reject the legislature's

manifest intent only if Fisher provides “‘the clearest

proof’ that ‘the statutory scheme [is] so punitive either in

purpose or effect as to negate [the State's] intention’ to

deem it civil. Hendricks, 521 U.S. at 361 (quoting Ward,

448 U.S. at 248-49). In making this determination, the

Supreme Court has relied on the “useful guideposts”

identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144,

168-169, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963). Hudson, 522

U.S. at 99. These factors, while “neither exhaustive nor

App. 19

dispositive,”"” Ward, 448 U.S. at 249, include: (1) whether

the sanction involves an affirmative disability or restraint;

(2) whether it has historically been regarded as a punish-

ment; (3) whether it comes into play only on a finding of

scienter, (4) whether its operation will promote the tradi-

tional aims of punishment-retribution and deterrence; (5)

whether the behavior to which it applies is already a

crime; (6) whether an alternative purpose to which it may

rationally be connected is assignable for it; and (7)

whether it appears excessive in relation to the alternative

purpose assigned. Kennedy, 372 U.S. at 168-69. It is

important to note, however, that these factors “may often

point in differing directions” and “must be considered in

relation to the statute on its face.” Jd. at 169.

a. Affirmative Disability or Restraint

The Texas Act imposes no physical restraint and

therefore “does not resemble the punishment of imprison-

ment, which is the paradigmatic affirmative disability or

restraint.” Smith v. Doe, 538 U.S. 84, 100, 155 L. Ed. 2d

164, 123 S. Ct. 1140 (2003) Nonetheless, the Act imposes

affirmative disabilities on Fisher. He must reside at a

particular location, may not leave Texas without permis-

sion, must be fitted with satellite monitoring equipment,

and faces a host of restrictions on his activities. See id. at

99-100 (noting that appropriate inquiry is “how the effects

of the Act are felt by those subject to it”). Even in light of

such restraints, however, the Supreme Court in Hendricks

concluded that “the mere fact that a person is detained

In determining that the Kansas SVP Act at issue in Hendricks

was civil, the Supreme Court considered some, but not all, of the

Kennedy factors. See Hendricks, 521 U.S. at 361-69.

App. 20

does not inexorably lead to the conclusion that the gov-

ernment has imposed punishment.” Hendricks, 521 U.S. at

363 (internal quotation omitted). While the Act imposes

affirmative disabilities and restraints on Fisher, they are

certainly no greater than the inpatient commitment held

to be civil in Hendricks. Accordingly, in light of Hendricks,

this factor alone does not compel a conclusion that the

statute is punitive.

b. Historical View

Thus, we turn to the second Kennedy factor. Histori-

cally, civil commitment has not been viewed as punish-

ment. “The State may take measures to restrict the

freedom of the dangerously mentally ill. This is a legiti-

mate nonpunitive governmental objective and has been

historically so regarded.” Hendricks, 521 U.S. at 363. The

United States Supreme Court has, in fact, cited the

confinement of “‘mentally unstable individuals who

present a danger to the public’ as one classic example of

nonpunitive detention.” Id. (quoting United States v.

Salerno, 481 U.S. 739, 748-49, 95 L. Ed. 2d 697, 107 S. Ct.

2095 (1987)); see also Addington v. Texas, 441 U.S. 418,

428, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979) (“In a civil

commitment state power is not exercised in a punitive

sense.”). As the Hendricks Court noted: “If detention for

the purpose of protecting the community from harm

necessarily constituted punishment, then all involuntary

civil commitments would have to be considered punish-

ment. But we have never so held.“ Hendricks, 521 U.S. at

" In Texas, our constitution authorizes the Legislature to enact

laws providing for commitment of certain individuals. See TEX.

CONST. art. I, § 15-a (“The Legislature may enact all laws necessary to

(Continued on following page)

App. 21

363. In view of civil commitment’s historical purpose, this

factor weighs against a finding of punitive effect.

ec. Retribution, Deterrence, and Scienter

Moreover, like the Kansas statute at issue in

Hendricks, “commitment under the Act does not implicate

either of the two primary objectives of criminal punish-

ment: retribution or deterrence.” Jd. at 361-62. The Act is

not retributive because it does not fix liability for prior

criminal conduct. Hendricks, 521 U.S. at 362. Instead,

such conduct is used for evidentiary purposes, either to

demonstrate that a “behavioral abnormality” exists or to

support a finding of future dangerousness. Id. In addition,

like the Kansas statute, the Act does not make a criminal

conviction a prerequisite for commitment — “persons

absolved of criminal responsibility may nonetheless be

subject to confinement under the Act.” Id., see also TEX.

HEALTH & SAFETY CODE § 841.003(bX1XC); Browning,

113 S.W.3d at 861. This “absence of the necessary criminal

responsibility suggests that the State is not seeking

retribution for a past misdeed.” Hendricks, 521 U.S. at

362. “Thus, the fact that the Act may be ‘tied to criminal

activity is ‘insufficient to render the statute [sic] puni-

tive.“ Id. (quoting United States v. Ursery, 518 U.S. 267,

292, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996)).

Additionally, the Act lacks the scienter requirement

typically found in criminal statutes. In Hendricks, the

Court recognized that “the existence of a scienter require-

ment is customarily an important element in distinguishing

provide for the trial, adjudication of insanity and commitment of

persons of unsound mind. . . .”).

App. 22

criminal from civil statutes,” and “the absence of such a

requirement ... is evidence that confinement under the

statute is not intended to be retributive.” 521 U.S. at 362.

In this case, the court of appeals held that “scienter

sandwiches the second prong of the statute,” which re-

quires a finding that a person suffers from a behavioral

abnormality that makes the person likely to engage in a

predatory act of sexual violence. 123 S.W.3d at 843. But

this was precisely the situation in Hendric is, and the

Court in that case held that “no finding of scienter is

required to commit an individual who is found to be a

sexually violent predator; instead, the commitment deter-

mination is made based on a ‘mental abnormality’ or

‘personality disorder’ rather than on one’s criminal intent.”

Hendricks, 521 U.S. at 362; see also id. at 352, (quoting

Kansas statute which defined “sexually violent predator”

as “any person who has been convicted of or charged with

a sexually violent offense and who suffers from a mental

abnormality or personality disorder which makes the

person likely to engage in the predatory acts of sexual

violence”). The court of appeals incorrectly focused on the

scienter required for a conviction of an underlying sexually

violent offense, making an individual eligible for SVP

commitment, rather than on whether scienter is required

in the SVP commitment proceeding itself. See, e.g., Rodri-

guez v. State, 93 S.W.3d 60, 73 (Tex. Crim. App. 2002) (sex

offender registration statute did not require scienter,

because “although a culpable mental state may be re-

quired with respect to some of the underlying offenses,

this does not answer the question of whether the registra-

tion statute requires a culpable mental state”); Hubbart,

969 P.2d at 606-07 (“Even though prior criminal conduct

was required for classification and commitment as a

sexual predator, the statute did not ‘affix culpability’ or

App. 23

require a finding of ‘criminal intent.’”) (quoting Hendricks,

521 U.S. at 362)). We conclude that no finding of scienter

is required to commit an individual found to be an SVP

under the Texas Act.

Like the Kansas statute at issue in Hendricks, it

cannot be said that the Texas Act was intended to function

as a deterrent. As in Kansas, “those persons committed

under the Act are, by definition, suffering from a ‘mental

abnormality or a ‘personality disorder’ that prevents them

from exercising adequate control over their behavior. Such

persons are therefore unlikely to be deterred by the threat

of confinement.” Hendricks, 521 U.S. at 362-63. Moreover,

the conditions surrounding confinement do not suggest a

punitive purpose on the State’s part. In Hendricks, the

Court considered that individuals confined under the

Kansas statute were not subject to the more restrictive

conditions placed on state prisoners but instead experi-

enced essentially the same conditions as any involuntarily

committed patient in the state mental institution. Id. at

363; see also Browning, 113 S.W.3d at 861 (“We note that

any incidental, marginal deterrent effect of Texas’s outpa-

tient-treatment and monitoring scheme will necessarily be

less than any deterrence effected by Kansas’s scheme of

confinement.”). In Texas, committed SVP’s face conditions

less restrictive than those in Kansas, where SVP’s live in

secure facilities within prison grounds. While some deter-

rence may result from the Texas Act, an incidental deter-

rent effect will not make the stetute punitive: “any

„ more fully explained below, however, scienter would be

required if an SVP were charged with violating a condition of commit-

ment, but this inquiry is separate from whether scienter is required to

civilly commit an SVP.

App. 24

number of governmental programs might deter crime

without imposing punishment.” Smith, 538 U.S. at 102.

“To hold that the mere presence of a deterrent purpose

renders such sanctions ‘criminal’ ... would severely

undermine the Government’s ability to engage in effective

regulation. Hudson, 522 U.S. at 105.

The court of appeals held that the Texas Act was

punitive due, in part, to the differences between SVP

commitment proceedings and “conventional” mental

health commitment. 123 S.W.3d at 845-46. The court noted

that a person committed via conventional commitment

proceedings is confined for “at most” one year. Id. at 844;

see also TEX. HEALTH & SAFETY CODE § 574.066(f). By

contrast, an SVP is entitled only to biennial review of his

or her status. 123 S.W.3d at 845; see also TEX. HEALTH &

SAFETY CODE § 841.102. But this reasoning not only

overlooks the SVP’s right to file an unauthorized petition

for release at any time, see TEX. HEALTH & SAFETY

CODE § 841.123, but the Hendricks holding that poten-

tially indefinite commitment did not evidence punitive

intent. Hendricks, 521 U.S. at 363. “If, at any time, the

confined person is adjudged ‘safe to be at large,’ he is

statutorily entitled to immediate release.” Id. at 364

(quoting KAN. STAT. § 59-29a07). The Texas Act provides

similar protection. See TEX. HEALTH & SAFETY CODE

$§ 841.081, 841.121 (commitment ends when SVP’s behav-

ioral abnormality “has changed to the extent that the

person is no longer likely to engage in a predatory act of

sexual violence” and case manager must authorize petition

for release at that time). Moreover, “the Constitution does

not require [a state] to write all of its civil commitment

rules in a single statute or forbid it to write two separate

statutes each covering somewhat different classes of

App. 25

committable individuals.” Hendricks, 521 U.S. at 377

(Breyer, J., dissenting). In Texas, the legislature explicitly

found that “the existing involuntary commitment provi-

sions” were inadequate to address the risk of repeated

predatory behavior by SVP’s. TEX. HEALTH & SAFETY

CODE § 841.001. Thus, we cannot conclude that differ-

ences between SVP outpatient commitment and other

mental health commitment necessarily establish a puni-

tive purpose on the State's part.

d. Whether the Act Applies to Behav-

ior Already a Crime

A statute that applies to behavior that is already a

crime is more likely to be characterized as punitive. See

Kennedy, 372 U.S. at 168; see also Rodriguez, 93 S.W.3d at

74 (noting that sex offender registration statute applied

only to “defendants” who had “reportable convictions”). In

this case, the Act defines “repeat sexually violent offender”

to include both individuals convicted of sexually violent

offenses and those adjudged not guilty by reason of insan-

ity. TEX. HEALTH & SAFETY CODE § 841.003(b)(1A),

(C). Because the Act does not categorically apply only to

convicted individuals, this factor does net weigh in favor of

finding that the Act is punitive.

e. Rational Connection to Nonpunitive

Purpose

The Act's rational connection to a nonpunitive purpose

is a “most significant” factor in determining whether the

statute's effects are punitive or civil. Ursery, 518 U.S. at 290.

The United States Supreme Court has “repeatedly held that

the Government's regulatory interest in community safety

App. 26

can, in appropriate circumstances, outweigh an individ-

ual's liberty interest.” Salerno, 481 U.S. at 748. It has

“also held that the government may detain mentally

unstable individuals who present a danger to the public.”

Id. at 748-49. Thus, the State's interest is twofold: “The

state has a legitimate interest under its parens patriae

powers in providing care to its citizens who are unable

because of emotional disorders to care for themselves; the

state also has authority under its police power to protect

the community from the dangerous tendencies of some

who are mentally ill.” Addington, 441 U.S. at 426. Our

Court has acknowledged these dual interests. See State v.

Turner, 556 S.W.2d 563, 566, 20 Tex. Sup. Ct. J. 510 (Tex.

1977) (“The State, as parens patriae undertakes the

beneficent task of treating the mentally ill, and under its

police power protects the public from harm. These are

valid, necessary state objectives which should not be

thwarted. .. .”).

The Act furthers these interests. In Hendricks, the

Supreme Court recognized that Kansas’s “overriding

concern” was the “continued segregation of sexualiy

violent offenders,” a purpose “consistent with [the] conclu-

sion that the Act establishes civil proceedings, especially

when that concern is coupled with the State’s ancillary

goal of providing treatment to those offenders, if such is

possible.” Hendricks, 521 U.S. at 366 (quoting In re

Hendricks, 259 Kan. 246, 912 Pad 129, 136 (Kan. 1996)).

In Texas, the legislature found that “a small but extremely

dangerous group of sexually violent predators exists,”

predators whose behavioral abnormalities were “not

amenable to traditional mental illness treatment modali-

ties” and were “likely to engage in repeated predatory acts

of sexual violence.” TEX. HEALTH & SAFETY CODE

App. 27

§ 841.001. Thus, the Act is rationally connected to its twin

goals of “long-term supervision and treatment.” Id.

f. Excessiveness

Finally, we examine whether the Act “appears exces-

sive in relation” to its purpose. Kennedy, 372 U.S. at 169.

The court of appeals held that the Act failed the excessive-

ness inquiry because the “100-plus disabilities [in the

Treatment and Supervision Contract] are not tailored to

Fisher s] individual needs but rather represent a net cast

to the broadest reach of possible variables.” 123 S.W.3d at

846. The United States Supreme Court did not discuss the

excessiveness factor in deciding that the Kansas SVP Act

was civil. See Hendricks, 521 U.S. at 361-71. But see id. at

394 (Breyer, J., dissenting) (“I believe the Act is exces-

sive in relation to any alternative purpose assigned.”). In a

different case, however, the Supreme Court noted:

The excessiveness inquiry is not an exer-

cise in determining whether the legislature has

made the best choice possible to address the

problem it seeks to remedy. The question is

whether the regulatory means chosen are rea-

sonable in light of the nonpunitive objective. The

Act meets this standard.

Smith v. Doe, 538 U.S. at 105. The Court has clarified that

this factor alone should not be dispositive. Hudson, 522

US. at 101.

While the Texas Act is strikingly similar to the Kansas

statute upheld in Hendricks, there is a notable difference.

The Texas SVP scheme is unique in that it provides for

outpatient commitment and, perhaps consequently, im-

poses severe criminal penaities for violating a condition of

App. 28

confinement. We must determine whether the criminal

penalty provision sufficiently tips the statute into the

punitive realm. The statute at issue in Hendricks required

“secure” confinement and “‘incarceration against one’s

will.““ Hendricks, 521 U.S. at 379 (Breyer, J., dissenting)

(quoting In re Gault, 387 U.S. 1, 50, 18 L. Ed. 2d 527, 87

S. Ct. 1428 (1967)) (citing record testimony demonstrating

that confinement took place in the psychiatric wing of the

prison hospital where those whom the Act confined and

ordinary prisoners were treated alike); see also Seling, 531

U.S. at 259 (detailing Washington SVP scheme in which

SVP’s were committed to a “Center, located wholly within

the perimeter of a larger Department of Corrections (DOC)

facility, [and which] relied on the DOC for a host of essen-

tial services, including library services, medical care, food,

and security”). Indeed, according to one report, at least

fourteen of the seventeen states with SVP civil commit-

ment procedures mandate commitment in a secure facility.

See Washington State Institute for Public Policy (2004),

State by State Comparison of the Civil Commitment of

Sexually Violent Predators, at http://www.tdh.state.tx.us

/ncqs/plc/csot_svpchart.doc (last visited May 18, 2005 and

available in Clerk of Court's file); see also In re Det. of

Garren, 620 N.W.2d at 281-82.

By contrast, the Texas Act permits the SVP to live at

large in the community. Should the SVP violate one of the

commitment requirements, however, the offense is a third-

degree felony.” TEX. HEALTH & SAFETY CODE

„This criminal penalty is separate from the initial commitment

proceedings. See, eg. Smith v. Doe, 538 U.S. 84, 101-02, 155 L. Ed. 2d

164, 123 8. Ct 1140 (2003) (noting that fal sex offender who fails to

comply with the reporting requirement may be subjected to a criminal

(Continued on following page)

App. 29

§ 841.085. Thus, the Texas Act appears at once less restric-

tive and potentially more restrictive than its out-of-state

counterparts. On the whole, however, the freedom from

a failure to obey the commitment conditions. For example,

in Texas, unlike other states, many civilly committed

SVP’s are permitted to live at home with their families.

See Walter J. Meyer, III et al., Outpatient Civil Commit-

ment in Texas for Management and Treatment of Sexually

Violent Predators: A Preliminary Report, 47(4) INTL J.

OFFENDER THERAPY & COMP. CRIMINOLOGY 396,

401 (2003). Moreover, the United States Supreme Court

has never held that the imposition of criminal penalties for

violating a civil regulatory scheme ipso facto renders an

act punitive, rather than civil. See, e g., Smith, 538 U.S. at

90, 105-06 (holding that Alaska Sex Offender Registration

Act was civil even though a knowing failure to comply

would subject the offender to criminal prosecution);

Hawker v. New York, 170 U.S. 189, 192-94, 200, 42 L. Ed.

1002, 18 S. Ct. 573 (1898) (holding that New York statute

prohibiting felons from obtaining licenses to practice

medicine did not violate ex post facto clause, despite

criminal penalties imposed for failure to comply: “such

legislation is not to be regarded as a mere imposition of

additional penalty, but as prescribing the qualifications for

the duties to be discharged and the position to be filled”).

“While [a Texas SVP’s} liberty is indeed restrained, the

intrusion is far less restrictive than if he were confined in

a secure facility in Kansas. And yet the Supreme Court

found commitment under the Kansas act to be civil in

prosecution for that failure, but any prosecution is a proceeding

separate from the individual's original offense”).

App. 30

nature.” Browning, 113 S. Wad at 859 (citing Hendricks,

521 U.S. at 360-69. But see Commonwealth v. Williams,

574 Pa. 487, 832 A.2d 962, 985-86 (Pa. 2003) (holding that

criminal penalties imposed for violating Pennsylvania’s

Registration of Sexual Offenders Act were unconstitution-

ally punitive). We conclude that the criminal penalties

attaching to a violation of a commitment requirement,

when considered in relation to the statutory purpose and

alongside the other Kennedy factors, do not make the

commitment scheme punitive. See, e g., Ursery, 518 U.S. at

290 (deeming law nonpunitive despite “punitive aspects”).

Fisher has not provided “the clearest proof” that the

statute’s effects are punitive. Instead, taken together,

Kennedys “useful guideposts” point to a conclusion that a

commitment proceeding under the Act is a civil matter.

Accordingly, we now turn to Fisher’s contention that due

process guaranteed him the right to be competent at trial.

B. Competence

The court of appeals held that the statute was puni-

tive and, therefore, Fisher had the right to be competent at

trial. 123 S.W.3d at 850. Because the Act is civil, however,

an SVP who may be incompetent to stand trial on criminal

charges can nonetheless be civilly committed pursuant to

chapter 841. See In re Commitment of Martinez, 98 S.W.3d

373, 376 (Tex. App.-Beaumont 2003, pet. denied) (“Due

process does not require a separate competency hearing in

a civil commitment proceeding under Chapter 841.”); see

also In re Detention of Cubbage, 671 N.W.2d 442, 447

(Iowa 2003) (concluding that alleged SVP “does not have a

fundamental right to be competent during his SVPA

proceedings”); State v. Kinder, 129 S.W.3d 5, 10 (Mo. Ct.

App. 31

App. 2003) (“Subjecting a suspected sexually violent

predator to a statutory sexually violent predator determi-

nation, regardless of competency, is not an unconstitu-

tional deprivation of liberty“). This comports with

legislative intent, as the legislature contemplated that not

all alleged SVP’s would be mentally competent. The

definition of a sexually violent offender — a necessary

prerequisite to an SVP determination - includes someone

who “is adjudged not guilty by reason of insanity of a

sexually violent offense.”* TEX. HEALTH & SAFETY

CODE § 841.003(b\(1)(C); see also id. 3§ 841.003(b)(2XB),

841.081 (commitment begins on date SVP is released from

correction facility or is “discharged from a state hospital”)

(emphasis added). Moreover, this result is consistent with

Hendricks the Kansas statute applied to persons who

were charged with a sexually violent offense but found

incompetent to stand trial. Hendricks, 521 U.S. at 352.

Indeed, “the very nature of civil commitments is that they

commit for treatment those who pose a danger to them-

selves or others because they suffer from a mental disease

or defect and are unable to comprehend reality or to

respond to it rationally.” Kinder, 129 S.W.3d at 8. Because

“involuntary commitment does not itself trigger the entire

range of criminal procedural protections,” Allen, 478 U.S.

at 372, we conclude that Fisher was not entitled to a

competency determination prior to his SVP trial.

We note, however, that while the initial commitment

proceeding is civil, a prosecution for violating a condition

For this reason, we also disagree with the court of appeals’

holding that “multiple prior sexually violent convictions are a funda-

mental and jurisdictional requirement of the act.” 123 S.W.3d at 841

(emphasis added).

App. 32

of commitment is undoubtedly criminal. See TEX.

HEALTH & SAFETY CODE § 841.085. In such a proceed-

ing, Fisher would be entitled to the full array of rights

available to all criminal defendants. Thus, if Fisher were

charged with such a violation, his competency could be

determined at that time. See, eg, TEX.CODE CRIM.

PROC. ch. 46B. Moreover, the State concedes that, at any

such criminal trial, the State would have to prove scienter

on the SVP’s part. See, e g., TEX. PEN.CODE § 6.02. If, as

he argues, Fisher's incompetence dooms him to violate the

court's commitment order, Fisher may raise lack of sci-

enter as a defense in any such criminal proceeding.

C. Fifth Amendment

The self-incrimination clause of the Fifth Amendment

provides that no person “shall be compelled in any crimi-

nal case to be a witness against himself.” U.S. CONST.

amend. V. The United States Supreme Court “has long

held that the privilege against self-incrimination ‘not only

permits a person to refuse to testify against himself at a

criminal trial in which he is a defendant, but also privi-

leges him not to answer official questions put to him in

any other proceeding, civil or criminal, forma! or informal,

where the answers might incriminate him in future

criminal proceedings Allen, 478 U.S. at 368 (quoting

Minnesota v. Murphy, 465 U.S. 420, 426, 79 L.Ed.2d 409,

104 8. Ct. 1136 (1984)).

Before Fisher testified, his attorney objected on the

basis of Fisher's privilege against self-incrimination.

Although the trial court overruled the objection, the court

noted that, if Fisher were to blurt out some subsequent

unlawful act he committed, the trial court wo d either

App. 33

excise the testimony from the record or grant Fisher

immunity. Fisher did not object to any individual question.

On appeal, Fisher points to no question that subjected him

to future criminal liability nor to any incriminating

testimony on his part. Fisher's brief complains that Fisher

was required to give a deposition, but the record contains

no such deposition. We hold that Fisher’s Fifth Amend-

ment challenge lacks merit.

D. Vagueness

Fisher did not preserve a vagueness challenge in the

trial court. The State contends that Fisher waived the

point; Fisher responds that facial constitutional challenges

need not be preserved at the trial court level, and he

purports to assert such a challenge. Assuming without

deciding that Fisher may do so, we address his facial

challenge to the Act. To prevail on his facial vagueness

challenge, Fisher bears the heavy burden of showing that

the Act is unconstitutional in every possible application.

See Vill. of Hoffman Estates v. Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 494-95, 71 L. Ed. 2d 362, 102 S. Ct.

1186 (192), Tex. BollWeevil Eradication Found., Inc. v.

Lewellen, 952 S.W.2d 454, 461 n.5, 40 Tex. Sup. Ct. J. 523

(Tex. 1997). “Although passing on the validity of a law

wholesale may be efficient in the abstract, any gain is

We have recognized that “the general rule against facial vague-

ness challenges is relaxed when the assertedly vague statute has the

potential to affect First Amendment freedoms.” Comm'n for Lawyer

Discipline u Benton, 960 §.W.2d 425, 438, 41 Tex. Sup. Ct. J. 1250 (Tex.

1998). Although Fisher asserts that “First Amendment rights are

implicated” in his vagueness challenge, his three vagueness complaints

do not appear to involve speech or conduct protected by the First

Amendment.

App. 34

often offset by losing the lessons taught by the particular,

to which common law method normally looks. Facial

adjudication carries too much promise of ‘premature

interpretation] of statutes’ on the basis of factually bare-

bones records.” Sabri v. United States, 541 U.S. 600, 158

L. Ed. 2d 891, 124 S. Ct. 1941, 1648 [sic] (2004) (quoting

United States v. Raines, 362 U.S. 17, 22, 4 L. Ed. 2d 524,

80 S. Ct. 519 (1960)).

A statute prohibiting conduct that is not sufficiently

defined is void for vagueness. See Grayned v. City of

Rockford, 408 U.S. 104, 108, 33 L. Ed. 2d 222, 92 S. Ct.

2294 (1972); Comm n for Lawyer Discipline u. Benton, 980

S.W.2d 425, 437, 41 Tex. Sup. Ct. J. 1250 (Tex. 1998).

Fisher contends that the Act is void for vagueness, for

three reasons. First, he complains that, unlike other

states’ SVP statutes, see, e.g., ARK. CODE ANN. §§ 12-12-

917, 12-12-918, the Act does not individualize treatment;

that is, “no msk levels are assigned to the SVPs so that

levels of restrictions and treatment may be adjusted

according to individual needs and capacity to comply with

requirements.” While Fisher is correct that the Act does

not specify that risk levels be assigned, the Act gives the

trial court leeway to fashion restrictions tailored to the

particular SVP facing commitment. See, eg., TEX.

HEALTH & SAFETY CODE § 841.082(a) (requiring judge

to impose on SVP any requirements “necessary to ensure

the persons compliance with treatment and supervision

and to protect the community”). Thus, we cannot agree

that the absence of risk levels prohibits individualized

treatment and renders the Act unconstitutionally vague.

Second, Fisher asserts that the Act is vague because it

predicates commitment on a “behavioral abnormality”

rather than a “medically recognized and diagnosable

App. 35

mental illness.” The Texas legislature defined bohavioral

abnormality as:

a congenital or acquired condition that, by affect-

ing a persons emotional or volitional capacity,

predisposes the person to commit a sexually vio-

lent offense, to the extent that the person be-

comes a menace to the health and safety of

another person.

TEX. HEALTH & SAFETY CODE § 841.002(2). This

definition is virtually identical to the Kansas statute's

definition of “mental abnormality,” a definition that the

United States Supreme Court has held “satisfies ‘substan-

tive’ due process requirements Mendricks, 521 US. at

356; see also KAN. STAT. ANN. § 59-29a02(b) (defining

“mental abnormality” as a “congenital or acquired condi-

tion affecting the emotional] or volitional capacity which

predisposes the person to commit sexually violent offenses

in a degree constituting such person a menace to the

health and safety of others”); Beasley v. Molett, 95 S.W.3d

590, 597 (Tex. App.-Beaumont 2002, pet. denied) (holding

that the Texas Acts “belhavioral abnormality” requirement

was “virtually the same” as the “mental abnormality”

definition examined in Hendricks). Moreover, the United

States Supreme Court has “never required state legisla-

tures to adopt any particular nomenclature in drafting

civil commitment statutes. Rather, lit has] traditionally

left to legislators the task of defining terms of a medical

nature that have legal significance.” Hendricks, 521 U.S.

at 359. We conclude that Fisher has failed to demonstrate

In fact, eight justices agreed that the definition of “mental

abnormality” in the Kansas act satisfied substantive due process

requirements. See Hendricks, 521 U.S. at 373 (Breyer, J., dissenting).

App. 36

that the Act’s behavioral abnormality definition is uncon-

stitutionally vague in every application.

Finally, Fisher contends that the provisions of his

“Treatment and Supervision Contract” appended to the

judgment are unconstitutionally vague, allowing arbitrary

enforcement. The Treatment and Supervision Contract

proscribes a broad spectrum of conduct, some of it appar-

ently reasonable (Fisher cannot contact his victims and

must live in a prescribed location), some of it less so

(Fisher must not “walk or ride around aimlessly” or “sit

and watch people”). This challenge, however, is not that

the statute is unconstitutional on its face, but rather that

the statute as applied to Fisher via the conditions of his

commitment contract — is unconstitutionally vague.”

Other than his competency and fifth amendment issues,

Fisher did not raise any constitutional challenges in the

trial court. As a rule, a claim, including a constitutional

claim, must have been asserted in the trial court in order

to be raised on appeal, so that the trial court has the

opportunity to rule on the issue. See TEX. R. APP. P. 33;

Tex. Dep't of Protective & Regulatory Servs. u Sherry, 46

S.W.3d 857, 861, 44 Tex. Sup. Ct. J. 672, 44 Tex. Sup. Ct.

J. 767 (Tex. 2001). Had Fisher so requested, it is possible

that the trial court would have modified or removed some

of the contract conditions of which he now complains.

Because Fisher did not assert this claim in the trial court,

we do not reach Fisher’s as applied vagueness challenge.

Under an “as applied” challenge, the challenging party contends

that the statute, although generally constitutional, operates unconsti-

tutionally as to him or her because of the challenging partys particular

circumstances. Lewellen, 952 S.W.2d at 461 0.5

App. 37

IV. Conclusion

We conclude that the Act is civil and that, therefore,

due process does not require, as in a criminal proceeding,

that Fisher be competent to stand trial. We also conclude

that Fisher's fifth amendment and facial vagueness

challenges lack merit. We reverse the court of appeals’

judgment and render judgment civilly committing Fisher

to supervision and treatment as outlined in the trial

court's final judgment and order of commitment. See TEX.

R. APP. P. 60.2(c).

Wallace B. Jefferson

Chief Justice

App. 38

THE COMMITMENT OF MICHAEL FISHER, .

Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-01-00714-CV

COURT OF APPEALS OF TEXAS,

THIRTEENTH DISTRICT, CORPUS CHRISTI

123 S.W.3d 828; 2003 Tex. App. LEXIS 10697

December 18, 2603, Opinion Delivered

December 18, 2003, Filed

COUNSEL: FOR APPELLANT: Hon. Kenneth W.

Balusek, Civil Commitment Services, Hunstville, TX.

FOR APPELLEE: Hon. Autumn Lewis, Special Prosecu-

tion, Hunstville, TX.

JUDGES: Opinion by Justice Wittig. Justice Castillo

Dissenting.

OPINION BY: Don Wittig

OPINION:

Before the Court En Banc

Opinion by Justice Wittig

Michael Fisher appeals his indeterminate commit-

ment. The commitment was under the relatively new

Texas Sexual Violent Predator Act, effective September 1,

1999. Fisher raises four complaints; two are issucs of first

impression. First he attacks the sexually violent predator

statute (SVP) as punitive, both facially and as applied,

' Retired Justice Don Wittig assigned to this court by the Chief

Justice of the Supreme Court of Texas pursuant to TEX. GOV'T CODE

ANN. § 74.003 (Vernon Supp. 2004).

App. 39

because Fisher does not have the mental ability to under-

stand or comply with the order of commitment. Second,

Fisher argues his due process rights were violated when

he was forced to proceed to trial when he was incompetent.

His argument includes the contention he was denied the

opportunity to exercise his right to counsel. We will treat

the competency issues generally together In his third

issue, he attacks the SVP statute and commitment order

as unconstitutionally vague. Finally, Fisher claims his

fifth amendment privilege against selſ- incrimination was

violated because Fisher was compelled to testify against

himself.”

We will only address Fisher's complaints concerning

his mental incapacity. Unchallenged psychiatric and

psychological testimony showed both Fisher's inability to

understand the proceedings against him, and his inability

to cooperate with his attorney in his own defense. Fisher

also argues his entitlement to a competency hearing before

being subjected to a trial as a sexually violent predator.

We agree. Because we reverse and remand on the compe-

tency issues, we do not address his other complaints.

The State of Texas filed a petition in District Court in

Montgomery County, Texas, to commit Michael Fisher as a

" These issues are likely intertwined under the United States

Supreme Court's helding in Seling ee Young, 531 U.S. 250, 263-64, 148

L. Ed. 2d 734, 121 8S. Ct. 727 (2001) (if a statute is already held to be a

civil statute, then the statute cannot be unconstitutional “as applied”).

* The Beaumont Court of Appeals has recently addressed these

latter issues in a plurality opinion which we discuss and reference

below

App. 40

sexually violent predator. Fisher requested a hearing to

determine his competency to stand trial. The motion

asserted that Fisher had neither a sufficient present

ability to consult with counsel with a reasonable degree of

rational understanding, nor a rutional as well as factual

understanding of the proceedings against him. The motion

further stated Fisher was an inpatient at the Institutional

Division of the Texas Department of Criminal Justice

when the petition was filed. While at the mental facility,

Fisher had episodes of psychotic behavior and was diag-

nosed with schizophrenia, paranoid type, and antisocial

personality disorder. Fisher was also said to be at least

mildly retarded. The assigned visiting trial judge initially

granted the motion for a competency hearing. The trial

liberally allowed a bill of exception.

In the offer of proof, two mental health experts testi-

fied. Fred Fason, M.D., a psychiatrist, graduated from

Baylor University College of Medicine, and was a World

War II veteran. He had been court appointed for clinical

evaluations some 2000 times. Dr. Fason testified Fisher

was “totally unable to cooperate and communicate with

fhis attorney] and engage him in legal activities.” The

doctor stated Fisher had neither a factual nor rational

understanding of the proceedings against him. Dr. Fason

further testified Fisher was mildly retarded, with an ILG.

in the lower 608. Fisher s paranoia would lower his scores,

and schizophrenia lowered his cognitive abilities. Accord-

ing to the psychiatrist, Fisher in no way could conform to

the terms of a treatment program, and was doomed to

failure if he were put on outpatient treatment. Dr. Fason’s

descriptions of Fisher included paranoia, schizophrenia,

delusional and psychotic. “His view of himself and of his

App. 41

situation is so unrealistic that it's psychotic.” Fisher was

not capable of reading the MMI.“ which requires a sixth

grade education to accomplish. While Fisher could spell

“house,” he could not spell “table” or “judge.” Finally Dr.

Fason testified that Fisher thought the present proceed-

ings were “about trying to send me to a half-way house.”

According to the testimony, Fisher thought he would have

to sign for the program and, because he would refuse to

sign, he would then be released. Dr. Fason opined there

was no way Fisher could stand trial competently.

The State neither cross-examined Dr. Fason nor

Dr. Floyd Jennings, psychologist and attorney, also

testified Fisher lacked both factual and rational know!-

edge of the proceedings. Dr. Jennings further testified

Fisher was unable to assist his attorney in preparation of

his defense. Dr. Jennings also had expertise in sex treat-

ment programs. He stated that sex treatment programs

are verbally intensive, and require a modicum of intellect

to effectively participate; this ability is lacking in Fisher.

He is incapable of participating and benefitting from a

program for sex offender treatment “because he could not

understand what is asked of him.” According to Dr.

Jennings, to order Fisher to participate in a sex treatment

program is virtually a sham. [Al word ‘sham’ seems too

strong, but it would be one wherein the defendant or the

patient would be anticipated to fail because he could not

understand what is asked of him.”

Minnesota Multiphasic-II Although Fisher thought he could read

and write at an eighth grade level, medical testimony indicated it was

more like a fourth grade level-illustrated by Fisher's inability to read

the test.

App. 42

The State offered a limited cross-examination of Dr.

Jennings. Dr. Jennings opined that he thought of Fisher as

dangerous to himself primarily and, secondarily, to a

lesser extent, dangerous to others under the conventional

commitment law. See TEX. HEALTH & SAFETY CODE

ANN. §§ 574.034-.035. (Vernon 2001). Dr. Jennings admit-

ted he disagreed with the State's attorney regarding

commitment of sexually violent predators. Dr. Jennings

also offered an alternative to sexually violent predator

commitment. Dr. Jennings suggested Fisher should be

given protective custody and emergency detention under

the conventional civil commitment laws. Fisher could then

be properly treated at Vernon State Hospital.

After Fisher's proffer of proof, the trial court observed

that neither Chapter 841 of the Health and Safety Code,

nor any other provision in the civil law gives leave to a

competency determination, before going forward with trial

on the issues under Chapter 841. This oral pronouncement

is verified by the court's order dated May 29, 2001. The

trial court concluded that a determination of competency

to stand trial is neither required nor appropriate. The

court observed: “I think the very nature of the proceeding

it may well be if the legislative intent is to be followed that

frequently there will be respondents who are not, in the

sense of a criminal proceeding, competent to stand trial.”

Indeed, we agree with the trial court's studied conclurion

that mental competency is not required by the statute.

At trial, the 36-year old Fisher was called to the stand

for testimony by the State and cross-examined about his

prior convictions and other misdeeds. The two prior felony

convictions that enabled the State to seek commitment

were sexual assaults. Both offenses occurred in 1987 and

he pled guilty to both. Fisher claimed these offenses were

App. 43

with prostitutes who wanted more money, that he was not

guilty, but other factors prompted his plea. Fisher violated

his community supervision three times and was re-

incarcerated. During probation he assaulted his wife.

However, none of the probation violations were sexually

related. One of the violations included his removal of a

satellite monitoring device, not unlike the device he now

wears. Ajury found Fisher was a sexually violent predator.

The trial court signed and entered a final judgment and

order of commitment. The judgment requires Fisher, in

addition to not contacting his two 1987 victims, not to

participate in programs with persons 17 or younger, to

stay 1000 feet from where children commonly are, not to

consume alcohol or controlled substances, and not to leave

Texas or to change his home residence without court

approval, inter alia. Fisher was also ordered, upon release

from lock-down, to be fitted with electronic satellite

monitoring equipment by the Texas Department of Public

Safety for around the clock monitoring. There are 11

disabilities and restrictions under the judgment and 97

more under the commitment requirements.

The “civil commitment requirements” expand the

order of commitment. These additional restraints consist

of 97 separate requirements of Fisher's “treatment and

supervision contract.” The second and fourth paragraphs

of the judgment’s commitment order incorporate these

additional restraints by ordering: “Michael Fisher shall

follow the directive of his case manager in matters related

to his residence selection and rules.” The civil commitment

requirements are also attached and incorporated into the

final judgment.

App. 44

We observe a few of the provisions from the civil

commitment requirements." Fisher is forbidden to have

contact with or harass program staff or volunteers. Many

rules require his cooperation with his case manager and

staff as well as adherence to any future treatment plans.

Contact with family members is forbidden unless approved

by the case manager and staff. Family members may be

required to submit to criminal background checks. R-rated

movies or TV programs are forbidden unless discussed

with case manager and staff. Fisher may not go to schools,

swimming pools, movie theaters, public libraries, amuse-

ments parks, arcades, or malls where children or potential

victims are likely to be. He cannot work anywhere that

requires contact with women or children. Fisher may not

touch anyone without their permission. Fisher may not

use drugs or drink any alcohol. Fisher may not buy,

borrow, steal, possess, or use cameras, recorders, CD or

DVD recorders, or any other recording device. He cannot

use a post office box, pick up hitchhikers, or stop to render

aid to someone stranded on a road. He cannot use an

automobile or travel without permission. He must con-

stantly wear a tracking device and submit to polygraph

tests. There io no confidentiality’ of anything he tells

counselors. Conversely, Fisher may not disclose the identity

* Copies of the judgment, order of commitment and civil commit-

ment requirements (exhibit C to the judgment) are attached as Appen-

diz 1 to this opinion.

* Some database information is confidential. Other provisions

require attendance with counsvling and detail sexual) conduct restraints

ranging from sadomasochism to masturbation to deviant fantasies The

listing above is not in the least inclusive Only some of the 97 additional!

requirements are mentioned to illustrate the breadth and depth of

liberty interests involved and ‘lisabilites imposed under the law.

App. 45

of anyone in the program. Finally, Fisher must report any

violation by him to his case manager.

Il

Fisher challenges whether due process applies to a

SVP proceeding. If due process applies, then the proce-

dural and substantive safeguards of due process cannot be

enjoyed by a person who cannot rationally or factually

comprehend the hearing. Fisher argues from Addington:

“This Court has recognized that civil commitment for any

purpose constitutes a significant deprivation of liberty

that requires due process protection.” Addington v. Texas,

441 US. 418, 425, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979).

Fisher further observes other proceedings analogous

to SVP proceedings trigger due process protections be-

cause they too can result in loss of liberty. See In re M.A.F,

966 S.W.2d 448, 450, 41 Tex. Sup. Ct. J. 451 (Tex. 1998).

Because contempt proceedings are quasi-criminal they

trigger due process concerns. Hawkins v. Weivoord, 25

S.W.3d 882, 892 (Tex. App. El Paso 2000, pet. denied).

Additionally, a hearing for protective order in a divorce

case involves liberty issues because a person's freedom of

movement is restricted. This process too is a quasi-

criminal proceeding implicating due process. Striedel v.

Striedel, 15 S.W.3d 163, 166 (Tex. App. Corpus Christi,

2000 no pet.). Fisher posits that all these proceedings can

result in the deprivation of liberty. The SVP proceedings

result in deprivation of liberty because a person so com-

mitted is greatly disabled from going places and ccatacting

people even family members. Every aspect of his life is

affected, from his every movement to each personal con-

tact.

App. 46

Fisher further contends due process requires a person

to be aware of and be able to participate in the proceedings

against him. The proof showed Fisher was unable to

understand or assist his attorney in preparation for trial

or the trial itself. His appellate counsel argues, though

Fisher was granted the right to have an attorney and

attend his trial, “since Fisher was incompetent, that right

was a hollow right.”

Finally, Fisher argues from Thompson v. Cockrell, 263

F.3d 423, 427 (5th Cir. 2001). Due process dictates protec-

tion of the individual against arbitrary action of the state

and ensures that adequate procedure exists to protect a

substantive interest to which a person is entitled. See id.

We also are reminded by Thompson that liberty interests

emanate from either the Due Process Clause itself or from

state law. Jd. at 425. The State concurs that substantive

due process prevents the government from engaging in

conduct that “shocks the conscience,” citing Rochin u

California, 342 U.S. 165, 172, 96 L. Ed. 183, 72 S. Ct. 205

(1952). Due process prevents governments from interfer-

ing with rights “implicit in the concept of ordered liberty.”

Palko u Connecticut, 302 U.S. 319, 325-26, 82 L. Ed. 288,

58 S. Ct. 149 (1937). We agree.

The State expands its due process argument by citing

Allen v. Illinois, 478 U.S. 364, 372, 92 L. Ed. 2d 296, 106

S. Ct. 2988 (1986). “Addington demonstrates that involun-

tary commitment does not itself trigger the entire range of

criminal protections.” Id. The State argues that the SVP

statute is not quasi-criminal because the United States

Supreme Court has consistently held such statutes to be

civil in nature, citing Kansas v. Hendricks, 521 U.S. 346,

361-65, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997); Seling v.

Young, 531 U.S. 250, 260-61, 148 L. Ed. 2d 734, 121 S. Ct.

App. 47

727 (2001); and Allen, 478 U.S. at 372. The State says that

the Chapter 841 rights given to Fisher from the criminal

law do not change the statute from civil to criminal. We

agree that the granting of rights associated with criminal

The State also argues that giving some safeguards appli-

cable in criminal trials does not turn the proceedings into

criminal prosecutions requiring the full panoply of rights

applicable in criminal proceedings. It cites Allen, 478 U.S.

at 372. However Allen also notes that the fact incarcera-

tion may result (which is uniquely the case in Texas) is

relevant to the question whether the privilege against self-

incrimination applies. Jd. We also note that Allen’s com-

mitment, unlike Fisher’s commitment, was for actual

treatment at a psychiatric hospital. Jd. at 373. So the gist

of the State’s position boils down to its argument, that the

SVP statute is civil, therefore not quasi- criminal or crimi-

nal. Accordingly, the State contends Fisher has no due

process right in being sane at his hearing or being able to

assist counsel at the commitment hearing. We disagree.

We first address Fisher’s liberty and due process

claims, then undertake the issue of whether or not the

statute is punitive.

There is no question that Fisher has a liberty interest

in his commitment proceedings. Both substantive and

procedural due process are mandatory. In Foucha, the

State of Louisiana sought to perpetuate Foucha’s confine-

ment on the basis of his antisocial personality that ren-

dered him a danger to himself or others. Foucha v.

Louisiana, 504 U.S. 71, 78, 118 L. Ed. 2d 437; 112 S. Ct.

1780 (1992). The court first observed that even if constitu-

tionally permissible, keeping Foucha against his will in a

mental institution is improper absent a civil commitment

App. 48

proceedings of current mental illness and dangerousness.

Id. (Texas makes no requirement of current mental illness

and dangerousness.) A convicted felon has a liberty inter-

est in not being transferred to a mental institution without

appropriate procedures to prove he is mentally ill. Id. at

78-79. A convicted criminal who allegedly was mentally ill

was entitled to release at the end of his term unless the

State committed him in a civil proceeding. Id. at 79 (citing

Baxstrom v. Herold, 383 U.S. 107, 15 L. Ed. 2d 620, 86

S. Ct. 760 (1966)). “(T]here is no conceivable basis for

distinguishing the commitment of a person who is nearing

the end of a penal term from all other civil commitments.”

Jackson v. Indiana, 406 U.S. 715, 724, 32 L. Ed. 2d 435, 92

S. Ct. 1845 (1972) (quoting Baxstrom, 383 U.S. at 111-112).

Due process 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, 108 L. Ed. 2d 100,

110 S. Ct. 975 (1990); see also Salerno, supra, 481 U.S. at

746; Daniels v. Williams, 474 U.S. 327, 331, 88 L. Ed. 2d

662, 106 S. Ct. 662 (1986). Freedom from bodily restraint

has always been at the core of the liberty protected by due

process from arbitrary governmental action. Youngberg v.

Romeo, 457 U.S. 307, 316, 73 L. Ed. 2d 28, 102 S. Ct. 2452

(1982). “It is clear that commitment for any purpose

constitutes a significant deprivation of liberty that re-

quires due process protection.” Jones v. United States, 463

U.S. 354, 361, 77 L. Ed. 2d 694, 103 S. Ct. 3043 (1983). We

should never “minimize the importance and fundamental

nature” of the individual’s right to liberty. Salerno, 481

U.S., at 750; Foucha, 504 U.S. at 79-80.

Texas’s highest criminal court recently held, together

with the majority of states, that to give effect to a

App. 49

petitioner’s right to counsel and his right to test the

legality of his arrest in the extradition context, he must be

sufficiently competent to consult with his counsel. Ex parte

Potter, 21 S.W.3d 290, 296-97 (Tex. Crim. App., 2000).

“Given that an alleged fugitive is entitled to counsel and

entitled to challenge the legality of his arrest and assert

defenses on the basis of which the extradition warrant

may be dismissed, the accused must be sufficiently compe-

tent to discuss with his counsel facts relating to the

limited defenses that may be raised.” Id. (citations omit-

ted); cf. Ake v. Oklahoma, 470 U.S. 68, 77, 84 L. Ed. 2d 53,

105 S. Ct. 1087 (1985) (due process requires the state to

grant indigent access to basic materials integral to build-

ing of effective defense). “Counsel cannot provide effective

representation absent the ability to consult with the

alleged fugitive regarding potential defenses about which

he may have knowledge.” Ex parte Potter, 21 S.W.3d at

297. “Where the fugitive’s incompetence prevents him from

being able to consult with his counsel in connection with

the issues of his identity and presence, those defenses may

be foreclosed.” Jd. The court concluded that while the

broadest understanding of the proceedings and greater

ability to consult with counsel is not necessary, due proc-

ess requires that the alleged fugitive has sufficient mental

competency to consult with and assist counsel on the

issues of identity and presence.

The Supreme Court in Dexter v. Hall, 82 U.S. 9, 21

L. Ed. 73 (1872), held that a mental incompetent cannot be

held to his contract:

[A] person non compos mentis, has nothing

which the law recognizes as a mind, and it would

seem, therefore, upon principle, that he cannot

make a contract which may have any efficacy as

wrong. The government does not hold him

sponsible for acts injurious to itself. Why, there-

fore, should one who has obtained from him that

may choose to avoid it? If this may be, efficacy is

given to a form to which there has been no men-

tal assent.

Id. at 20 So we ask, if a person cannot contract away his

property without mental capacity, can the government

force an incompetent to sign a civil commitment contract

the person cannot comprehend or keep? May mentally

retarded persons sign away their liberties? Fisher was

ordered to sign such a contract.

In Texas, a person such as Fisher, suffering from a

mental illness, is guaranteed all the rights, benefits,

responsibilities and privileges afforded by the constitu-

tions and laws of the United States and Texas. Barclay v.

Campbell, 704 S.W.2d 8, 11, 29 Tex. Sup. Ct. J. 124 (Tex.

1986) (citing TEX. REV. CIV. STAT. ANN. art. 5547-80(a)

(Vernon Supp. 1985) (Barclays mental illness did not

foreclose his right to be informed of material risk that

could influence a reasonable person in making a decision

to give or withhold consent to a medical procedure)).

We have held that the standard for incompetence to

determine whether a person is mentally ill, mentally

retarded, or both, did not violate due process where each

category protects equally. Villarreal v. State, 860 S.W.2d

529, 535 (Tex. App. Corpus Christi 1993, pet. ref d). In

Villarreal, the portions of the statute that deal with the

App. 51

conditions of mental illness or retardation disjunctively,

are those that refer to institutional placement and treat-

ment options. Id. The standard for incompetence is the

same whether the person is mentally ill, mentally re-

tarded, or both, under conventional civil commitments. Id.

Yet the Texas SVP act, while facially claiming to be a civil

commitment statute, does not afford the equal protection

of the conventional civil commitment act. To the contrary,

the act does not provide for the mentally ill or mentally

retarded. Thus the act meets neither the due process

requirements for those mentally ill or retarded, nor does it

meet the due process requirements of the criminal law.

Additionally, the law fails to meet constitutional muster as

a true civil commitment because of the absence or any

lack-of-control determination. Kansas uv. Crane, 534 US.

407, 412, 151 L. Ed. 2d 856, 122 8. Ct. 867 (2002).’ The

law fails to meet constitutional muster as a criminal

statute because it fails to follow criminal procedures for

the allegedly mentally incompetent. TEX. CODE CRI.

PROC. ANN. § 46.03 (Vernon 2001). In other words, the

Texas SVP act, as noted by the trial judge and the State,

does not provide for mental incompetency, although many

liberties are affected. Thus, the mentally incompetent is

deprived of both treatment under the conventional mental

health laws, and of the protections of certain criminal

rights. Yet the Texas law lacks the United States Supreme

Court-mandated finding that the «fender cannot control

his sexual impulses. According to the United States

Supreme Court, If offenders could control their sexual

deviancies, they would be subject to the criminal law.

Crane, 534 U.S. at 412 (sexual offenders subject to civil

Wie discuss some of the implications of Crane below.

App. 52

commitments must be distinguished from other dangerous

persons more properly dealt with in the criminal proceed-

ings).

Because the SVP statute provides for assistance of

counsel, due process requires a person to be able to enjoy

that protected right. Little v. Streater, 452 U.S. 1, 16, 68

L. Ed. 2d 627, 101 S. Ct. 2202 (1981) (“[A] statute... may

be held constitutionally invalid as applied when it oper-

ates to deprive an individual of a protected right although

its general validity as a measure enacted in the legitimate

exercise of state power is beyond question.”). According to

the record, Fisher lacked factual and rational knowledge of

the proceedings and was unable to assist his attorney [sic]

prepare a defense. [A] State must afford to all individuals

a meaningful opportunity to be heard if it is to fulfill the

promise of the Due Process Clause.” Boddie v. Connecticut,

401 U.S. 371, 379, 28 L. Ed. 2d 113, 91 S. Ct. 780 (1971).

We hold that the unchallenged lack of mental competency

to assist his attorney deprived Fisher of a meaningful

opportunity to be heard. See Powell, 579 F.2d at 330; Ex

parte Potter, 21 S.W.3d at 296-9. The fundamental re-

quirement of due process is the opportunity to be heard “at

a meaningful time and in a meaningful manner.” Arm-

strong v Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 85

S. Ct. 1187 (1965); Grannis v. Ordean, 234 U.S. 385, 394,

58 L. Ed. 1363, 34 S. Ct. 779 (1914).

We conclude that whether the SVP is civil or quasi-

criminal, Fisher’s liberty interests in a fair proceeding,

including his statutory right to counsel, were violated. His

due process rights were viclated because competent

evidence indicated his incapacity both to participate in the

proceeding in an effective way and his demonstrated

App. 53

inability to factually or rationally utilize his right to

counsel.

III

Next we address the State's contention that the SVP

statute is a purely civil statute and therefore does not

afford many criminal due process guarantees to Fisher.’ At

the same time, we addreus Fisher's related issue that the

statute is punitive facially, and as applied, because Fisher

does not have the mental ability to understand or comply

with the order of commitment. Furthermore, if the statute

is punitive, then there are additional reasons why Fisher

clearly hes the right to be sane at his hearing, abie to

assist counsel, and is entitled to à hearing on competency

before proceeding.

The State argues, and we agree, that the “as applied”

argument may not apply if the SVP statute is civil. The

argument is by extrapolation. The United States Supreme

omission, the act denies the safeguards against double jeopardy, ex post

facto application, the right of mental competency, and the right against

self-incrimination. See generally Beasley v. Molett, 95 S.W3d 590

(Tex App Beaumont 2002, no pet. )

* The Court also noted the Washington commitment scheme was

similar and largely patterned on the Kansas statute. Jd. As we will

discuss, the Texas scheme is also similar to Kansas but contains very

App. 54

facto claims, “as applied” analysis would prove unworkable

because such analysis would never conclusively resolve

which particular scheme is punitive). The State argues: “If

Fisher were subjected to the criminal penalty clause, he

would then be afforded all of the procedural safeguards

offered to criminal defendants.” Texas criminal law clearly

proscribes the trial of a mentally incompetent person.

Thus, if the Texas SVP statute is punitive in purpose or

manifest effect, Fisher is entitled to a competency hearing

before proceeding to the initial commitment trial.

The State expands its ripeness argument countering

Fisher’s claim that he is doomed to violate the terms of

commitment because he cannot understand the orders.

Citing Patterson u. Planned Parenthood, 971 S. Wad 439,

41 Tex. Sup. Ct. J. 1001 (Tex. 1998), the State argues that

uncertain or contingent future events may not occur. See

Id. at 442. The proper course for Fisher is to challenge the

criminal penalty clause after that portion has been applied

to him. While the State’s argument is not without some

merit, it ignores the thrust of Fisher’s argument. Fisher

argues the SVP act is objectively purutive and retributive

in multiple aspects, not merely because it attaches felony

penalties. Alternatively, if the State is correct that Seling

prohibits an “as applied” analysis after a statute has been

found to be civil, then Fisher could be prohibited from

raising this argument later after being criminally charged.

See Seling, 531 U.S. at 264-265."

significant differences leading to our conclusion that, unlike Kansas,

the Texas SVP statute is designed for retribution or deterrence (puni-

tive).

” The State is correct Fisher could claim insanity at the time of the

violation of the criminal penalty clause, but as we discuss below, lack of

(Continued on following page)

App. 55

Both parties aptly cite and argue from Hendricks, 521

U.S. 346, 138 IL. Ed. 2d 501, 117 S. Ct. 2072." We are

constrained to note that Hendricks is a plurality opinion

by Justice Thomas, joined by Chief Justice Rehnquist and

Justices O’Connor and Scalia. Justice Kennedy filed a

concurrence and warned that mental and medical treat-

ment should not be a sham for punishment. Justices

Breyer, Stevens, Souter and Ginsburg dissented to parts of

the majority opinion. The State argues, and we agree, that

the Kansas law is similar to the Texas SVP statute.

However, we note striking and material differences, best

exemplified by following the Hendricks analysis and its

application of the Kennedy factors. Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 168-69, 9 L. Ed. 2d 644, 83 S. Ct.

554 (1963).

The categorization of a statute or proceeding as civil

or criminal is first of all a question of statutory construc-

tion. Hendricks, 521 U.S. at 361. If the Legislature meant

to establish “civil” proceedings, we should ordinarily defer

to its intent unless there is the clearest proof that the

scheme is so punitive in purpose or effect that it negates

the States attempt to deem that statute civil. Id. ‘citing

United States v. Ward, 448 U.S. 242, 248-49, 65 L. Ed. 2d

742, 100 S. Ct. 2635 (1980)).” Unlike the face of the

„„ͤ See Se ee Ter ee ee

ense.

" The States argument largely tracks Hendricks. Where it

expands on the Hendricks holding, we trust we fully address its

arguments.

It should be noted that the origin of this expression is Flemming

v. Nestor, 363 U.S. 603, 617, 4 L. Ed. 2d 1435, 80 S. Ct. 1367 (1960). In

context, Flemming warns against judicial inquiry into Congressional

motives - at best hazardous especially when that inquiry goes behind

(Continued on following page)

App. 56

Kansas statute, which suggested only the creation of a

civil statute, the face of the Texas statute imposes severe

criminal] penalties for the violation of any of the terms of

commitment. TEX. HEALTH & SAFETY CODE ANN.

§ 841.085 (Vernon 2000). The criminal penalty facially

provides: “A person commits an offense if the person

violates a requirement imposed under Section 841.082. An

offense under this section is a felony of the third degree.”

Id. Because Fisher, and most all prisoners,” have two prior

felony convictions in order to invoke the act, they auto-

matically fall under Texas’ felony enhancement scheme.

punitive desire to punish could not be shown to have motivated the

legislature to revise the law and terminate certain benefits. “It

ered as void.” Id. at 618 (citing Fletcher u Peck, 10 US. 87, 128, 3

L. Ed. 162). Taking heed, we look solely and only

and objective manifestations. We note, however, that the Flemming

Court found that no affirmative disability or restraint was imposed, and

certainly nothing approaching the “infamous punishment” of imprison-

ment. Id. at 617.

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App. 57

term of 25-99 years. TEX. PEN. CODE ANN. § 12.42(d)

(Vernon 1999). A mandatory life sentence follows the

conviction for any violation of § 841.085 of the Health and

Safety Code if the committed person is previously con-

victed of aggravated sexual assault. Id. § 12.42(cX 2B ii).

in practical legal effect, if Fisher or anyone with a prior

aggravated sexual assault conviction, uses a post office box

or stops to help a person “stranded on the road” that

person is subjec: to a mandatory life sentence The effect

of disobedience to the SVP statute, requiring imprison-

ment for up to life, clearly embraces the primary objectives

of criminal punishment: retribution and deterrence. It is

retributive because it punishes for past criminal conduct.

It is also patently a deterrent; a violation of the terms of

commitment could mean between 25 years incarceration

up to and including a mandatory life sentence. While the

Texas act, like Kansas, initially states it is a civil act

providing for civil commitment proceedings, unlike Kan-

sas, the teeth of the Texas law are severe criminal penal-

ties. This objective manifestation of the law is punitive.

We are not informed of any state that attaches felony

penalties to its SVP statute, except Texas.

The State argues that if Fisher were indicted for

violating any provision of the SVP statutes, he would then

be “afforded all of the safeguards offered to persons facing

criminal charges.” Such argument begs the question of

Fisher's rights at the proceeding in question. A promise of

possible future protection does little to address the depri-

vation of present rights. Any prospective insanity defenses

Ses items number 48 and 55 respectively of the “Civil Commit-

ment Requirements: Treatment and Supervision Contract,” Appendix “A.”

App. 58

would only address his mental state at the time of a

violation or his subsequent criminal trial. We know of no

Texas law that would allow a person’s mental disabilities

at the time of his SVP commitment hearing to be a defense

to subsequent prosecution. Certainly the SVP statute

provides no such protections.

Hendricks notes that Kansas places its SVP statute in

its probate code, not its criminal code, thus evidencing

intent of the civil nature of the statute. Hendricks, 521

U.S. at 362. In somewhat similar fashion, Texas places its

SVP statute in its Health and Safety Code. Unlike Kansas,

Texas also places some of its highest priority crimes in its

Health and Safety Code. Many felony and misdemeanor

drugs crimes are found in the Health and Safety Code

Chapters 481, 482, 483 and 485. These chapters delineate

hundreds of criminal offenses, including manufacturing

and distribution of controiled substances, dangerous drugs

and abusable chemicals. Several other chapters of the

Health and Safety Code deal with criminal statutes and

penalties. These include: Chapters 195, 341, 501, 765 and

793, inter alia. We conclude that the code placement in

Texas does not necessarily implicate the act as civil, and

rather is consistent with the placement of other criminal

laws.” The manifest punitive intent of many provisions of

the Health and Safety Code is apparent.

Like Kansas, the Texas act states it is civil. See

Hendricks, 521 U.S. at 361. The Texas Legislature found

“that a civil commitment procedure for the long-term

” Indeed, the SVP statute in Chapter 841, immediately follows

Chapter 828, which deals with the sterilization of cats and dogs.

Certainly few would be so emboldened to argue this statutory nexus is

material

2

App. 59

supervision and treatment of sexually violent predators is

necessary and in the interest of the state.” TEX. HEALTH

& SAFETY CODE ANN. § 841.001 (Vernon 2001). How-

ever, “It is well settled that realities rather than benign

motives or non-criminal labels determine the relevance of

constitutional policies.” In re Winship, 397 U.S. 358, 365-

366, 25 L. Ed. 2d 368, 90 S. Ct. 1068, 51 Ohio Op. 2d 323

(1970) In re Gault, 387 U.S. 1, 21, 27, 50, 18 L. Ed. 2d 527,

87 S. Ct. 1428, 40 Ohio Op. 2d 378, (1967); Breed v. Jones,

421 U.S. 519, 528, 44 L. Ed. 2d 346, 95 S. Ct. 1779 (1975);

Allen, 478 U.S. at 369.

The Hendricks Court held that the Kansas Act does not

implicate either of the two primary objectives of criminal

punishment: rotribution or deterrence. Hendricks, 521 U.S.

at 361-62. According to our highest court, Kansas law is

not retributive because prior criminal conduct is used

solely for evidentiary purposes to show mental abnormal-

ity or to support a finding of future dangerousness. Id. at

352. Texas law decidedly differs. The Texas SVP statute

begins and ends with criminal penalties. First, multiple

prior sexually violent convictions are a fundamental and

jurisdictional requirement of the act. Section 841.003(b)

provides: “A person is a repeat sexually violent offender for

the purposes of this chapter if the person is convicted of

more than one sexually violent offense and a sentence is

imposed for at least o. f the offenses or.... TEX.

HEALTH & SAFET TC E ANN. § 841.00%(b) (Vernon

Other circumstances including those involving nolo contendere

pleas, juveniles and persons found not guilty of sexualiy violent crimes

by virtue of insanity are also delineated as alternative required

jurisdictional basis before proceedings may be initiated under the

statute.

App. 60

2000). Without two or more prior sexually violent convic-

tions or the statutory equivalent, no proceedings may be

initiated. Jd. The statute further specifies the jurisdiction

of either the Texas Department of Criminal Justice, or the

Texas Department of Mental Health and Mental Retarda-

tion, to file appropriate notices sixteen months before the

release of a convicted or committed violent sex offender.

Id. § 841.021(c). Unlike the Hendricks Court holding that

past conduct is used “solely for evidentiary purposes,” past

criminal conduct is a sine qua non for the initiation of

Texas proceedings. Likewise, the nature of past criminal

conduct is jurisdictional not only as to agency responsibil-

ity but also before any trial court can entertain such an

action.

It is instructive to note Hendricks reliance on Allen,

478 U.S. at 371. Allen in turn relies on the Illinois Su-

preme Court holding in People v. Allen, 107 Ill. 2d 91, 481

N.E.2d 690, 481 N.E.2d 699, 89 Ill. Dec. 847 (Il. 1985).

There, the Illinois court construed its SVP statute as

requiring proof of three separate elements: (1) the exis-

tence of a mental disorder for more than one year; (2) the

existence of criminal propensities to the commission of sex

offenses; and (3) the existence of demonstrated propensi-

ties toward acts of sexual assault or acts of sexual moles-

tation of children. Jd. at 697. Because the Illinois statute

required more than propensity to commit a sex offense,

that state required additional proof that the defendant has

“demonstrated” this propensity. Jd. Thus, the State had to

prove at least one act or attempted act of sexual assault or

sexual molestation. Jd. “There is, however, nothing in the

statute requiring the State to prove multiple sex crimes.

One purpose of the statute is to prevent mentally ill

persons from being held criminally responsible for crimes

App. 61

committed while mentally ill.” Jd. “We therefore hold that

the plural language of the statute — acts of sexual assault

or acts of sexual molestation’ - refers to the defendant's

future propensities, not to the demonstrated conduct.” Id.

Texas law vastly differs. Rather than to prevent mentally

ill persons from being held criminally responsible for

crimes committed while mentally ill, Texas makes no

provision for traditional mental illness for persons such as

Fisher, and facially makes them criminally responsible for

violating their commitment orders. TEX. HEALTH &

SAFETY CODE ANN. § 841.085 (Vernon 2000). Therefore,

the statute ends with criminal punishment as we ob-

served. Texas law begins with criminal punishment

because it requisites proof of multiple sex crimes. Id.

§ 841.003. Contrary to Hendricks, multiple criminal

convictions are the usual prerequisite for commitment. Cf.

Hendricks, 521 U.S. at 362, ‘The Supreme Court concluded,

“An absence of the necessary criminal responsibility

suggest [sic] that the State is not seeking retribution of a

past misdeed.” Jd. Conversely, logic dictates our conclusion

that the presence of the necessary criminal responsibility

suggests another objective manifestation that the State is

seeking retribution of past misdeeds. Moreover, were the

State not seeking general deterrence of future criminal

acts, why pass the law at all?”

The State argues the absence of scienter noted in

Hendricks. Id. at 362. Ordinarily, absence of scienter is

Ik the State’s true intent was to treat Fisher, why was he not

offered or required to undergo treatment be* his release from prison?

And now after his release from his incarceration and mental institu-

tion, he is not given the alternative of inpatient or other mental health

treatment. Rather, under the judgment, his alternative to the 100-plus

terms of commitment is a life sentence in the penitentiary.

. 62 Loi

evidence the statute is not intended to be retrivutive. Id.

In Texas, scicnter sandwiches the second prong of the

statute. While the State argues that scienter is not a

required finding, perhaps in the second prong of the

statute, scienter would trigger its enforcement provisions.

See TEX. HEALTH & SAFETY CODE ANN. § 841.085

(Vernon 2000). Furthermore, scienter is also typically

required by law in order to order to [sic] establish the first

prong. Id. § 841.003. The law states:

(a) A person is a sexually violent predator for

the purposes of this chapter if the person:

(1) is a repeat sexually violent offender; and

(2) suffers from a behavioral abnormality that

makes the person likely to engage in a predatory

act of sexual violence.

Id. Typically, a repeat sexually violent offender would

include a conviction of sexual assault which requires

scienter. TEX. PEN. CODE ANN. 5 22.011. Likewise

aggravated sexual assault requires scienter. Id. § 22.021.

Notab.y, perhaps the more egregious indecency-with-a-

child statute, requires no scienter. Id. §21.11(a)(1).

Whether or not the felony penalty provisions of the SVP

act require scienter, remains to be determined. See TEX.

HEALTH & SAFETY CODE ANN. § 841.085 (Vernon

2000) (person commits a felony if the person violates a

requirement of the act). However, there can be little doubt

that a “knowing and intentional” violation of the terms of

commitment is a felony offense. Id. We conclude the

application of the first prong of the act typically requires a

f v reiterate, no decisions as of this writing inform us whether an

unintentional violation will likewise trigger this felony provision.

App. 63

prior finding of scienter and, similarly, the enforcement

criminal penalties clearly attach with a knowing violation

of the terms of commitment.

We also believe there is merit in Fisher’s argument

regarding the required finding under the second prong.

Specifically, the fact finder must find beyond a reasonable

doubt that the person will commit an act for the purpose of

victimization directed toward a stranger, casual acquaint-

ance, or a person ip a relationship established for the

purpose of victimization. Jd. § 841.002(5). An act commit-

ted for a “purpose,” clearly connotes scienter.

Even assuming arguendo, a partial absence of this

hallma c of scienter, such absence does not and cannot

distinguish the Texas statute as civil. On balance, the

Texas act’s multiple requirements of scienter, objectively

characterize the statute as punitive.

We likewise note another of the Kennedy factors not

particularly addressed in Hendricks. That is the fact that

the behavior to which the act applies is already a crime.

Kennedy, 372 U.S. at 168. As we just noted, the first prong

deals with past criminal activity. The second prong of the

SVP act requires the likelihood of committing a predatory

act of sexual violence, i.e., will commit an act for the

purpose of victimization. Thus. most would perceive yet

another objective manifestation of the punitive nature of

the act. |

The Hendricks Court also notes that under the Kan-

sas act, a confined individual is not subject to the more

restrictive conditions placed on state prisoners, but in-

stead experiences essentially the same conditions as any

involuntarily committed patient in the state mental

institution. Hendricks, 521 U.S. at 363. Rather, the Texas

App. 64

law places 108 restraints and disabilities on Fisher. Fisher

is fitted with satellite monitoring equipment by an arm of

law enforcement, the Department of Public Safety. Law

enforcement electronic ully monitors him every moment of

every day. He is subject to repeated polygraph examina-

tions. He is required to give blood and hair samples for

DNA profiling. He cannot leave the state and shall not

consume alcohol or controlled substances. He must notify

his case manager within 48 hours of any change in health

or job. He may not move his home without court approval.

Other disabilities, already noted, include: any contact with

family members forbidden unless approved by the case

manager and staff; family members may be required to

submit to criminal background checks; R-rated movies or

TV programs are forbidden unless discussed with case

manager and staff; Fisher must stay more than 1000 feet

away and may not go to schools, swimming pools, movie

theaters, public libraries, amusement parks, arcades or

malls where children or potential victims are likely to be

(even though he is not a pedophile); he cannot work

anywhere that requires contact with women or children;

Fisher may not touch anyone without their permission;

Fisher may not buy, borrow, steal, possess or use cameras,

recorders, CD or DVD recorders or any other recording

device; he cannot use a post office box, pick up hitchhikers

or stop to render aid to someone stranded on a road; and

he cannot use an automobile or travel without permission.

These restraints far exceed normal criminal law probation

or community supervision. The general deterrent effect

critically observed by Justice Kennedy is patent.

Hendricks, 521 U.S. at 372 (Kennedy, J., concurring).

App. 65 2

Hendricks observes the State may take measures to

restrict the freedom of the dangerously mentally ill.“ Id.

Far removed from the realm of medical or psychiatric

assistance, many disabilities of the Texas law exceed

criminal probation or community supervision. See TEX.

CODE CRIM. PROC. AN® art. 42.12 (Vernon 2000).

While many of the restrictions on a person found to be a

sexually violent predator are identical to Texas criminal

community supervision law, some are even more invasive,

as noted above. Notably, a judge may extend community

supervision under the penal system for ten years. Jd. One

subject to the ccurt’s indeterminate supervision under the

SVP law, is exposed to a new felony term from 25 years to

lifetime confinement in the state penitentiary. See TEX.

HEALTH & SAFETY CODE ANN. -§ 841.085 (Vernon

2000). And the legislature unequivocally enunciated it

seeks “long-term supervision and treatment.” Jd. § 841.001.

It is true the Texas law, unlike Kansas, does not at its

initial implementation actually confine the person in a

treatment center. However, the vast majority of effectively

penal parole conditions, can hardly be said to be less

restrictive or coercive than the conditions of a patient at

a Texas mental institution. At most, such a person is

restricted and confined for one year. Id. § 574.066. One-

year hospital confinement without superimposed felony

repercussions, is sensibly limited and accompanied by

procedural safeguards. This contrasts with indeterminate

long-term commitment, enforced by felony ii prisonment,

accompanied by penal parole conditions, and additional

„ Texas makes no requirement that a person be dangerously

mentally ill. The focus of the act is on behavior. We discuss Texas’

absence of the necessary non-volitional finding below.

App. 66

restrictions often exceeding those imposed by the criminal

law. Indeed, the elaborate structure for release from

supervision and treatment, contrary to conventional

mental health commitments, only requires a biannual

“review.” Id. § 841.101. The State council contracts for an

expert who reports to the judge. Id. The judge then con-

ducts a review at which the person is not entitled to

attend, though counsel may appear. Only if the judge

determines there is probable cause that the person's

behavioral abnormality has changed, is it possible for the

person to have a hearing with certain limited constitu-

tional protections. Id. § 841.103.” The certain effect of the

law is to grant review only when the executive or judicial

branch of Texas government grants leave. The initial and

requisite burden of proof is effectively on the committed to

show the change. The State need not show the further

need for commitment. Justice Burgess, in his dissent in

Beasley, would hold these review provisions of the SVP act

unconstitutional for violation of the equal protections

clause. See Beasley, 95 S. Wad at 618 (Burgess, J., dissent-

ing). We doubt the Texas act meets the constitutional

qualifications of Jones. Jones, 463 U.S. at 368 (even a

criminal acquittee may not be held longer unless the

person is both mentally ill and dangerous).”

A case manager may also authorize the person to petition the

court for release, thus by-passing judiciai screening. HEALTH &

SAFETY CODE ANN. 841.121 (Vernon 2000). If the States case

manager does not authorize such a petition, the offender may file an

unauthorized petition for release, subject to judicial scrutiny. /d.

§ 841.123. “The judge is not required to deny a petition [unauthorized]

if probable cause exists to believe that the petitioner’s behavioral

abnormality has changed.” Jd. (Note the language emphasizing a judge

is not “required” to deny an unauthorized petition.)

* This is precisely the holding in Crane, infra.

App. 67

Therefore, unlike Kansas, persons committed under

the Texas SVP are subject to conditions often more oner-

ous than conventional civil commitment. See Hendricks,

521 U.S. at 363. As noted, the Texas indeterminate com-

mitment is more onerous than many comparable penal

provisions.

Justice Thomas, writing for the plurality, held that

potentially indefinite duration is not evidence of punitive

intent. Hendricks, 521 U.S. 346 at 363, 138 L. Ed. 2d 501.

He stated: “If, at any time, the confined person is adjudged

‘safe to be at large,’ he is statutorily entitled to immediate

release.” Jd. at 363-64. “If Kansas seeks to continue the

detention beyond that year, a court must once again

determine beyond a reasonable doubt that the detainee

satisfies the same standards as required for the initial

confinement.” Id. at 364. According to Justice Thomas, this

requirement demonstrates that Kansas does not intend

that the committed individual remain confined any longer

than the period of time that the person suffers from

mental abnormality. Jd. Texas law is inapposite.

The Texas SVP law disavows its own mental health

statute’s one year commitment limitation, and reduces or

eliminates significant other substantive and procedural

safeguards. CF TEX. HEALTH & SAFETY CODE ANN.

§ 574.066 (Vernon 1992). Under the Texas conventional

mental health sta:ute, before a renewal of order for ex-

tended mental health services beyond one year can be

entertained: (1) a county or district attorney or other adult

must file an application to renew an order for extended

mental health services; (2) the application must explain in

detail why the person requests renewal; (3) the application

to renew an order committing the patient to extended

inpatient mental health services must also explain in

App. 68

detail why a less restrictive setting is not appropriate; (4)

the application must be accompanied by two certificates of

medical examination for mental illness signed by physi-

cians who examined the patient during the 30 days pre-

ceding the date on which the application is filed; (5) the

patient, the patient’s attorney, or other individual may

request a hearing on the application or the court may set a

hearing on its own motion; (6) a court may not renew an

order unless the court finds that the patient meets the

criteria for extended mental health services prescribed by

Sections 574.035(a)(1), (2), and (3) and the court must

make the findings prescribed by this subsection to renew

an order, regardless of whether a hearing is requested or

set; and (7) a renewed order authorizes treatment for not

more than 12 months. Id.

The Texas SVP act fails the Kansas safeguards eluci-

dated by Justice Thomas, to confine no longer than neces-

sary. It ignores or vitiates its own laws providing for the

mental health rights to retarded persons. A person

thought to be mentally retarded has the right promptly to

receive a determination of mental retardation using

diagnostic techniques that are adapted to that person’s

cultural background, language, and ethnic origin to

determine if the person is in need of mental retardation

services. TEX. HEALTH & SAFETY CODE ANN.

§ 592.018 (Vernon 2000). This was denied Fisher, and

presumably all who fall under the SVP act. Each person

has the right to live in the least restrictive habilitation

setting and to be treated and serve [sic] in the least

intrusive manner appropriate to the client’s individual

needs. Id. § 592.032 (“Each client has the right to live in

the least restrictive habilitation setting and to be treated

and served in the least intrusive manner appropriate to

App. 69

the clients individual needs.). Fisher’s standard 100-plus

disabilities are not tailored to his individual needs but

rather represent a net cast to the broadest reach of possi-

ble variables. Thus, the Texas act fails to meet the Ken-

nedy test of whether the act is excessive in relation to the

alternative purpose assignable to it. Kennedy, 372 U.S. at

169. Unlike a conventional mental commitment not to

exceed one year, the SVP trial evidence need not include

either (1) expert testimony or (2) evidence of a recent overt

act or a (3) continuing pattern of behavior that tends to

confirm the illness. See TEX. HEALTH & SAFETY CODE

ANN. § 574.035 (Vernon 2000). We hasten to add that

although not required, the State did produce expert

testimony in this particular case.”

There is little doubt that like Kansas, Texas assigned

a non-punitive, alternative purpose, to its act. See

Hendricks, 521 U.S. at 361, 138 L. Ed. 2d 501. The Legis-

lature found that a small extremely dangerous group of

sexually violent predators exists, that conventional treat-

ment does not work and is inadequate to address the risk

of “repeated predatory behavior that sexually violent

predators pose to society.” TEX. HEALTH & SAFETY

CODE ANN. § 841.001 (Vernon 2000). The critical issue

persists, however, whether objective manifestations of

purpose indicate conclusively that the provisions in

question can only be interpreted as punitive. Kennedy, 372

US. at 168.

™ One expert testified about the results of the Static 99 and Mn

SOST-R tests. In essence, both tests heavily weigh past sexual viola-

tions, and from the past acts, future acts are hypothesized. The

evidence heard by the jury thus encompasses the past convictions, and

testing based on the same acts to purportedly prove behavioral! abnor-

mality and future likelihood (not probability) of recidivism.

App. 70

Fisher complains he is not offered the opportunity for

appropriate treatment. This plea seems to be denied by

Hendricks: “We have never held that the Constitution

prevents a State from civilly detaining those for whom no

treatment is available, but who nevertheless pose a danger

to others.” Hendricks, 521 U.S. at 366. “Similarly, it would

be of little value to require treatment as a precondition for

civil commitment of the dangerously insane when no

acceptable treatment existed.” Jd. Alternatively, the Court

held, the possibility that an ancillary purpose of the act

was to provide treatment, and no treatment is provided,

does not require a conclusion the act is punitive. Jd. at

367. If treatment is as irrelevant as described, should not

the law require a “lack of control” element and finding?

Crane answers the question in the affirmative.

IV

After Hendricks: Crane

After Hendricks, the United States Supreme Court

markedly curtailed the application of this prior holding

which we analyzed at length above. The Constitution does

not permit “commitment of the type of dangerous sexual

offender considered in Hendricks without any lack-of-

control determination.” Crane, 534 U.S. at 412. Sexual

offenders subject to civil commitments must be distin-

guished from other dangerous persons more properly dealt

with in the criminal proceedings. Jd. “That distinction is

necessary lest ‘civil commitment’ become a ‘mechanism for

retribution or general deterrence Id. (citing Hendricks,

App. 71

521 U.S. at 360 (Kennedy, J., concurring)).” Hendricks was

a pedophile who admitted lack of volitional control, cou-

pled with a prediction of future dangerousness. Id.

Hendricks, whose condition was listed in DSM-IV 571-572,

stated he could not control the urge to molest children. Id.

at 414 (Scalia, J., dissenting). In Justice Scalia’s dissent,

(joined by Hendricks author Justice Thomas), he notes the

Kansas act, (like Texas's), contains no requirement of

inability to control. Jd. at 419. He also clearly notes the

majority now establishes the requirement of a separate

finding of inability to control behavior. Id.

We can only conclude that Crane amplifies the Ken-

nedy factors and modifies Hendricks. In addition to dan-

gerousness, the requisite mental element is inability to

control behavior. Jd. at 412. This is a required finding by

the fact finder. Jd.“ There is no requirement of total or

complete lack of control. Jd. at 411. Hendricks demon-

strated lack of control because of his serious sexual mental

disorder pedophilia — thus providing proof of inability to

control behavior. Id. at 413. Hendricks himself testified he

could not “control the urge” to molest children. Jd. at 414.

Because neither party briefed the application of

Crane, we do not consider whether the absence of a finding

It should be noted that Justice Kennedy, by concurring, provided

the slim majority in the Hendricks plurality opinion. Justice Breyer

authored the dissent in Hendricks and wrote for the seven-to-two

majority in Crane.

* In a Memorandum opinion, the Beaumont Court of Appeals

sought to apply Crane in a factual sufficiency context. See In Re

Commitment of Corliss, No. 09-02-294-CV, 2003 Tex. App. LEXIS 1633,

at *3-5 (Tex. App. Beaumont 2003, pet. filed) (memorandum opinion).

App. 72

of inability to control behavior is fundamental error.”

Rather, we apply the rationale of Crane as one more

objective manifestation in determining whether the

statute is punitive facially or as applied to Fisher. Because

the Legislature has not narrowly crafted the sexually

violent predator statute with the necessary “inability to

control” requirement, the act is more likely designed as a

mechanism for retribution or general deterrence.

V

We note our disagreement with the plurality opinion

of our sister court. The Beaumont Court of Appeals was

handed the herculean task of deciding whether to enjoin

the application of the SVP act. Beasley v. Molett, 95 S.W.3d

590 (Tex. App. Beaumont, 2002, no pet. R.). It was faced

with fourteen points of first impression.” We only address

*The jury below was asked whether Fisher suffered from a

behavior abnormality that makes him likely to engage in predatory

sexual violence. “Behavior abnormality” was defined as “a congenital or

acquired condition that by affecting a person’s emotional or volitional

capacity predisposes the person to commit a sexually violent offence to

the extent that the person becomes a menace to the health and safety of

another person.” We cannot discern that this question or the evidence of

two 1987 sexual assault convictions equate to a mental disorder that

impairs Fisher’s volitional control to the degree he cannot control his

dangerous sexual behavior. Though his schizophrenia could relate to

conventional civil commitments, we do not perceive an acceptable

scientific or empirical basis to equate Fisher's true unrelated mental

illness with a condition that predisposes him to violent sexual offenses

to the extent he cannot control his dangerous sexual behavior.

* The second member of the majority, Chief Justice Walker, retired

from the court at the end of 2002, after a long and distinguished career.

App. 73

our disagreement with that portion of their opinion deal-

ing with the nature of the proceeding. Jd. at 607-08.“

We agree that the act imposes certain restraints

similar to those imposed in community supervision (pa-

role). Id. We agree that “the acts that lead the person to

initially qualify for the status of ‘sexually violent predator’

are crimes.” Jd. at 607. But we differ on the court’s conclu-

sion that there is no retribution because there is no culpa-

bility for prior criminal conduct and that the statutory

scheme of treatment and supervision for the purpose of

avoiding the menace of such persons is not excessive. See

id. We believe the myriad affirmative disabilities and

‘restraints placed on Fisher, restrictions against all touch-

ing, even his children, avoiding all venues with women or

children, family criminal background checks, multiple

polygraphs, satellite monitoring, and criminal felony

penalties are excessive and go well bvond restraints

necessary to protect the public. We have also outlined how

such disabilities under the Texas act have historically been

treated as punitive and how criminal scienter is required.

Without further reiteration, we believe our detailed

analysis readily supports our respectful disagreement with

our sister court.

We specifically do not comment upon or address any of the other

and sometimes interrelated issues of their opinion. Suffice it to say, our

fundamental disagreement on the nature of the proceedings would

affect other constitutional concerns. Our sister court also briefly

addressed the “nature of the proceedings” in In re Commitment of

Mullens, 92 S.W.3d 881, 883 (Tex. App. - Beaumont 2002, no pet. R.)

and In re Commitment of Morales, 98 S.W.3d 288, 290 (Tex. App.

Beaumont 2003, no pet. h.). Neither of these cases address the compe-

tency issue and both follow the rationale of Beasley. We trust this

respectful disagreement should be and will be addressed by higher

authorities.

App. 74

That court has more recently partially addressed some

of the specific issues we discuss. See In re Commitment of

Martinez, 98 S. Wad 373 (Tex. App. Beaumont 2003, no

pet. h.). The case is readily distinguishable because all

three experts testified Martinez was competent to stand

trial. Id. at 375-76. By dicta, the court held, relying on

Hendricks and its own holding in Beas/ey, that no coiape-

tency hearing was required. Id. The court alse held Marti-

nez’s claim that he could not comply with the commitment

order was not ripe. Id. (relying upon Patterson, 971 S.W.2d

at 443). Because evidence shows Fisher to be both men-

tally retarded and mentally incompetent, we do not believe

Martinez is controlling.

VI

Finally, we believe it helpful to further factually

distinguish the Hendricks case from Fisher 's. Fisher was

convicted of two sexual assault crimes in February and

August of 1987. Both convictions were based upon pleas of

guilty. Fisher has served all of his time, which was ex-

tended because his probation was revoked three times for

non-sexual matters including the removal of his monitor.

The two prior sexual violations were with adult women,

possibly involving payment for prostitution. According to

Fisher, he disagreed with the women about money. There

was no proof of other sexual crimes although there was an

alleged verbal threat toward a mental hospital nurse at

Rusk State Hospital. There is no diagnosis of pedophilia or

other recognized sexually related mental disorder. There

was no allegation of involvement with children, yet Fisher

was given the same restrictions as a practicing pedophile

such as Hendricks. Hendricks was convicted of taking

‘indecent liberties’ with two 13-year-old boys. Hendricks

App. 75

had a “chilling history” or repeated child sexual molesta-

tion including a 7-year-old girl, two young boys while

working at the carnival, performing oral sex on an 8-year-

old girl, and fondling an 11-year-old boy. Hendricks, 521

U.S. at 354. His conduct and multiple convictions spanned

the years 1955 through his release in 1994. Jd. at 354-55.

He admitted his pedoz.usilia, that he was not cured after

professional help, and that he could not control his sexual

urges toward children. Jd. at 355. Most importantly,

Hendricks demonstrates the type of mental illness consti-

tutionally necessary to impose the liberty encroachments

and restrictions under a sexually violent predatory law. As

a practicing pedophile, Hendricks arguably had the

component lack of control sexual mental abnormality to

justify commitment. See Crane, 534 U.S. at 412. Schizo-

phrenia and Fisher’s two remote 1987 sexual assaults, do

not demonstrate the component lack of sexual control that

would justify the imposition of 100-plus civil and penal

restrictions of the Texas law.

We also note nine additional punitive aspects of the

Texas law contrasted with the substantially greater

constitutional safeguards of the Kansas statute or as

observed in Hendricks. We list these other objective

manifestations. (1) In addition to Kansas procedural

safeguards allowing a confined person’s immediate release

at any time the person is adjudged safe to be at large,

Kansas also affords (2) “al! constitutional rights available

to defendants at crimina! trials, other than the right not

to be tried while incompetent.” KAN. STAT. ANN. § 59-

29a07 (1994). (3) Texas assigns a majority co: the charging

board (Multidisciplinary Team) from criminal law en-

forcement. The team includes two from mental health but

is numerically controlled by three persons from the Texas

App. 76

Department of Criminal Justice, (4) one of whom must be

from the victim services office of that department; TEX.

HEALTH & SAFETY CODE ANN. § 841.022 (Vemon [sic]

2000). (5) A “prosecutor” is selected from a special division

of the prison prosecution unit, separate from the part of

the unit responsible for prosecuting criminal cases. Id.

§ 841.004 (Prison Prosecution Unit). (6) No overt threat or

act from the recent past is required. (7) No substantial

threat or imminent risk is required. Cf Broussard. v.

State, 827 S.W.2d 619, 622 (Tex. App. Corpus Christi

1992, no writ). (8) No notice is given to a prisoner or

mental health patient that he or it is being evaluated for

subjugation to the SVP act. (Nor is counsel provided at

this juncture.) (9) The Multidisciplinary team’s screening

and assignment of charges to prosecutors are now secret

meetings not subject to the Texas Open Meetings Act. See

TEX. GOV. CODE § 551.002 (Vernon 1994); Beasley, 95

S.W.3d at 599.

Finally, we note precedent very similar to Fisher’s

case. Jackson dealt with a mentally defective deaf mute

with a mental level of a pre-school child. Jackson 406 U.S.

at 717. There the state, not unlike Texas, did not afford

Jackson a substantial opportunity for early release. Jd. at

729. Our highest court observed that Jackson was sub-

jected to a more lenient commitment standard and to a

more stringent standard of release than those generally

applicable to all others not charged with offenses. In effect,

to permanently institutionalize without showing either the

requirements for commitment or the opportunity for release

afforded by conventional commitment, Indiana deprived the

petitioner of equal protection of the laws under the Four-

teenth Amendment. Id. at 729-30. In other words, Jackson

was entitled to the protections of conventional commitment

App. 77

protection under circumstances similar to Fisher's. Be-

cause Fisher’s commitment was as an outpatient, we also

note there is no distinction in application of due process

protection depending on whether the commitment is

inpatient or outpatient. Jn re D.F-R., 945 8.W.2d 210, 214-

15 (Tex. App. San Antonio 1997, no. pet.)

We sustain Fisher’s first two issues regarding compe-

tency.” We conclude that the Texas SVP statute is mani-

festly punitive, both facially and as applied. Accordingly,

Fisher is entitled to rights under the criminal law, specifi-

cally including the opportunity to effectively exercise his

right to counsel, the right to be competent at trial, and

understand and assist in the trial proceedings. Addition-

ally, substantive due process requires he be mentally

competent to comply with the order of commitment. He

has the substantive right not to proceed to trial when he

was incompetent. Even if the SVP statute were to be found

civil or quasi-criminal, Fisher is minimally entitled to

enjoy the statutorily specified opportunity to competently

exercise his right to counsel. Nor do we see any overriding

need of society that would refuse Fisher's right to be found

sane before his proceedings.

The loss of liberty produced by involuntary commit-

ment is more than a loss of freedom from confinement.

Vitek, 445 U.S. at 492. Due process requires that the nature

of commitment bear some reasonable relation to the pur-

pose for which the individual is committed. Jones, 463 U.S.,

at 368; Jackson, 406 U.S. at 738. We must distinguish

between sexual offenders subject to civil commitments and

* Because of our disposition of Fisher's first two issues, we need

not address his remaining issues. TEX. R APP. F 47.1

App. 78

other dangerous persons more properly dealt with in crimi-

nal proceedings lest “civil commitments” become a “mecha-

nism for retribution or general deterrence.” Crane 534 U.S.

at 412. Because we hold that Fisher was denied substantive

and procedural due process, we reverse and remand for

further proceedings consistent with this opinion.

DON WITTIG

Retired Justice

Justice Castillo Dissenting.

DISSENT BY: ERRLINDA CASTILLO

DISSENT:

DISSENTING OPINION

Before the Court En Banc

Dissenting Opinion by Justice Castillo

Assuming without deciding that appellant presented ~~

his specific constitutional challenges to the trial court and

thus preserved error, I respectfully dissent for the reasons

stated by the Austin court of appeals in Jn re Browning,

113 S.W.3d 851, 858-59 (Tex. App. Austin 2003, no pet.

R.) and the Beaumont court of appeals in Jn re Martinez,

98 S.W.3d 373, 375-76 (Tex. App. — Beaumont 2003, no

pet.) (per curiam) and Beasley u. Molett, 95 S.W.3d 590,

607-08 (Tex. App. Beaumont 2002, pet. filed).

ERRLINDA CASTILLO

Justice

Disseriting Opinion delivered and filed this the 18th day of

December, 2003.

App. 79

CAUSE NO. 00-10-06622-CV

IN RE: THE § IN THE DISTRICT COURT OF

COMMITMENT OF = § moNTGOMERY COUNTY, TEXAS

§ *

MICHAEL FISHER § 284TH JUDICIAL DISTRICT

FINAL JUDGMENT AND

ORDER OF COMMITMENT

BE IT REMEMBERED that this cause came to trial

on May 29, 2001. A jury was duly selected, sworn and

seated. The jury returned the verdict reflected in Exhibit

“A”, attached hereto. The court made certain Findings of

Fact and Conclusions of Law attached hereto as Exhibit

“B.” Based thereon it is:

It is accordingly ORDERED, ADJUDGED and DE-

CREED that Michael Fisher be committed to treatment

and supervision by the Council on Sex Offender Treatment

and/or its contractors.

It is further ORDERED, ADJUDGED and DECREED

that:

1. Michael Fisher live at a residence as approved by his

case manager as long as it is not within a child safety

zone which is defined by the following language in the

Texas Code of Criminal Procedure, Section 13B, Arti-

cle 42.12, as follows:

(A) Michael Fisher shall not supervise or partici-

pate in any program that includes as partici-

pants or recipients persons who are 17 years of

age or younger and that regularly provides ath-

letic, civic, or cultural activities; and,

(B) Michael Fisher shall not go in, on, or within 1000

feet of a premises where children commonly

App. 80

gather, including a school, day-care facility,

playground, public or private youth center, pub-

lic swimming pool, or video arcade facility.

2. Michael Fisher shall follow the directives of his case

manager in matters related to his residence selection

and rules. Michael Fisher shall be provided with the

name, work address, and telephone numbers of his

case worker and treatment provider within twenty-

four (24) hours of this Order.

3. Upon release from a lock-down facility, Michael

Fisher shall be fitted with satellite monitoring

equipment by the Department of Public Safety. Mi-

chael Fisher shall comply with all requirements of the

Department of Public Safety to insure proper func-

tioning of the monitoring equipment.

4. Michael Fisher shall comply with all terms and

conditions of this court, his treatment provider and

case manager and enter into a written agreement

with his treatment provider and case manager speci-

fying all of the terms and conditions of his treatment

and case management including as are attached in

Civil Commitment Requirements: Treatment and Su-

pervision Contract (Exhibit “C”).

5. If Michael Fisher has not previously given a blood or

hair sample, he shall provide appropriate blood and

hair samples to allow his inclusion in the DNA Data

Bank maintained by the State of Texas.

6. Michael Fisher shall reside in the State of Texas.

Michael Fisher is prohibited from contacting the

victims of the crimes for which he has previously been

adjudicated in Cause Nos. 482193 and 461676, in the

228th District Court of Harris County, Texas whose

names are Carolyn Brooks and Pamela Post-Oak (also

known as Houston).

10.

11.

12.

13.

App. 81

Michael Fisher shall not consume alcohol or con-

trolled substances.

Michael Fisher shall not change his residence without

prior authorization from the court with jurisdiction

and venue.

Michael Fisher shall not leave the State of Texas

without authorization from the court with jurisdiction

and venue.

Michael Fisher shall notify his case manager within

48 hours of any change in his status that affects

proper treatment and supervision, including change

in the persons’ physical health or job status and in-

cluding any incarceration of the person.

This Final Judgment shall remain binding upon

Michael Fisher following any release from any subse-

quent incarceration.

That Michael Fisher shall not be charged any of the

cost of his treatment program or case management.

All costs are charged to the State of Texas. All relief

not granted herein is DENIED.

It is further ORDERED that this cause be transferred

to venue in Harris County, Texas as required by the

Health and Safety Code, § 841.082(c).

SIGNED this 12th day of June, 2001.

/s/ PK. Reiter

JUDGE PRESIDING

THE HONORABLE

P.K. REITER, JUDGE

App. 82

EXHIBIT “A”

CAUSE NO. 00-10-06622-CV

IN RE: THE § IN THE DISTRICT COURT OF

COMMITMENT OF : MONTGOMERY COUNTY, TEXAS

MICHAEL FISHER § 284TH DISTRICT COURT

JURY CHARGE

(Filed May 31, 2001)

LADIES AND GENTLEMEN OF THE JURY:

This case is submitted to you by asking questions

about the facts, which you must decide from the evidence

you have heard in this trial. You are the sole judges of the

credibility of the witnesses and the weight to be given in

their testimony; but in matters of law, you must be gov-

erned by the instructions in this charge. In discharging

your responsibility on this jury, you will observe all the

instructions which have previously en given you. I shall

now give you additional instructions which you should

carefully and strictly follow during your deliberations.

1. Do not let bias, prejudice, or sympathy play any_part

in your deliberations.

2. In arriving at your answer, consider only the evidence

introduced here under oath and such exhibits as have

been introduced for your consideration under the rul-

ings of the court, that is, what you have seen and

heard in this courtroom, together with the law as

given you by the court. In your deliberations, you will

not consider or discuss anything that is not repre-

sented by the evidence in this case.

App. 83

3. Since every answer that is required by the charge is

important, no juror should state or consider that any

required answer is not important.

4. You must not decide whom you think should win, and

then try to answer the question accordingly. Simply

answer the question, and do not discuss nor concern

yourselves with the effect of vour answer.

5. You will not decide the answer to a question by lot or

by drawing straws, or by any other method of chance.

Do not return a quotient verdict. A quotient verdict

means that the jurors agree to abide by the result to

be reached by adding together each juror’s figures and

dividing by the number of jurors to get an average. Do

not do any trading on your answers; that is, one juror

should not agree to answer a certain question one way

if others will agree to answer ancther question an-

other way.

6. Your verdict must be unanimous. That means that all

twelve of the jurors must agree upon the answer made

and to the entire verdict.

These instructions are given you because your conduct

is subject to review the same as that of the witnesses,

parties, attorneys, and the judge. If it should be found that

you have disregarded any of these instructions, it will be

jury misconduct and it may require another trial by

another jury; then all of our time would have been wasted.

The presiding juror or any other who observes a

violation of the court’s instructions shall immediately

warn the one who is violating the same and caution the

juror not do so again.

When the words are used in this charge in a sense

that varies from the meaning commonly understood, you

App. 84

are given a proper legal definition, which you are bound to

accept in place of any other meaning.

Answer “Yes” or “No” to the question unless otherwise

instructed. A “Yes” answer must be based on a belief

beyond a reasonable doubt. If you do not find beyond a

reasonable doubt that the evidence supports a “Yes”

answer, then answer “No.” The verdict must be reached by

a unanimous agreement.

DEFINITIONS AND INSTRUCTIONS

“CIRCUMSTANTIAL EVIDENCE,” a fact may be

established by direct evidence or by circumstantial evi-

dence or both. A fact is established by direct evidence

when proved by documentary evidence or by witnesses

who saw the act done or heard the words spoken. A fact is

established by circumstantial evidence when it may be

fairly and reasonably inferred from other facts proved.

“BEHAVIORAL ABNORMALITY,” means a congenital

or acquired condition that, by affecting a persons’ emo-

tional or volitional capacity, predisposes the person to

commit a sexually violent offense, to the extent that the

person becomes a menace to the health and safety of

another person.

“PREDATORY ACT,” means an act that is committed for

the purpose of victimization and that is directed toward:

(A) a stranger;

(B) a person of casual acquaintance with whom no

substantial relationship exists; or

App. 85

(C) a person with whom a relationship has been es-

tablished or promoted for the purpose of victimiza-

tion.

QUESTION ONE

Do you find that Michael Fisher suffers from a behavior

abnormality that makes him likely to engage in a preda-

tory act of sexual violence?

YES Yes

NO

After you retire to the jury room, you will select your

own presiding juror. The first thing the presiding juror

will do is have this complete charge read aloud and then

you will deliberate upon your answer to the question

asked.

It is the duty of the presiding juror

to preside during your deliberations,

2. to see that your deliberations are conducted in an

orderly manner and in accordance with the in-

structions in this charge, ;

3. to write out and hand to the bailiff any communi-

cations concerning the case that you desire to

have delivered to the judge,

to vote on the question,

to write your answer to the question in the space

provided, and

6. to certify to your verdict in the space provided for

the presiding juror’s signature.

App. 86

You should not discuss the case with anyone, not even

with other members of the jury, unless all of you are

present and assembled in the jury room. Should anyone

attempt to talk to you about the case before the verdict is

returned, whether at the courthouse, at your home, or

elsewhere, please inform the judge of this fact.

When you have answered the question you are re-

quired to answer under the instructions of the judge and

your presiding juror has placed your answer in the space

provided and signed the verdict as presiding juror, you will

inform the bailiff at the door of the jury room that you

have reached a verdict, and then you will return into court

with your verdict.

/s/ P.K. Reiter

JUDGE PRESIDING

We, the jury, have answered the above and foregoing

question as herein indicated, and herewith return the

same in to court as our verdict.

/s/

PRESIDING JUROR

App. 87

EXHIBIT “B”

CAUSE NO. 00-10-06622-CV

IN RE: THE § IN THE DISTRICT COURT OF

COMMITMENT OF ; MONTGOMERY COUNTY, TEXAS

MICHAEL FISHER § 284TH JUDICIAL DISTRICT

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

BE IT REMEMBERED that this cause came to trial

on May 29, 2001. A jury was duly selected, sworn and

seated. The jury returned the verdict reflected in Exhibit

“A”, attached hereto. The court makes the following:

Findi f Fact

1. Michael Fisher has been convicted of two sexually

violent offenses, as that term is defined in HSC

841.002.

2. Michael Fisher currently suffers from a behavioral

abnormality, as those terms are defined in HSC

841.002, which make [sic] him likely to engage in

predatory acts of sexual violence.

3. The unanimous jury found beyond a reasonable doubt

that Michael Fisher is a sexually violent predator, as

that term is defined in HSC 841.003.

4. Michael Fisher was present in court at all times,

effectively represented by counsel, and has had ample

opportunity to review all petitions and court records

on file in this cause. Based upon the foregoing, the

court reaches the following:

App. 88

Conclusions of Law

A. This court has jurisdiction over the subject matter of

this cause, as well as personal jurisdiction over Mi-

chael Fisher.

B. Michael Fisher is a Sexually Violent Predator as that

term is defined under HSC 841.003.

SIGNED this 12th day of JUNE, 2001.

HEK Reiter

P.K. Reiter, Judge Presiding

EXHIBIT “C”

Civil Commitment Requirements:

Treatment and Supervision Contract

When you participate in the Outpatient Sexually Violent

Predator Treatment Program (OSVPTP), you must follow

all rules of the program. Failure to comply with these

rules may result in legal action. Therefore, you must

carefully read this Treatment and Supervision Contract.

The treatment staff or case manager can help you read

and understand the contract if you want them to do so.

When you sign this contract, you are showing that you

have read and understand it.

Contact with Victims

1. I will not have contact with my victim. I will not talk

to my victim. I will not telephone or write notes to my

victim. I will not send messages to my victim through

other people. I will not send gifts to my victim. I will not

send threats or convey threats to my victim. I will not

make requests of my victim.

App. 89

2. If my victim attempts to contact me, directly or indi-

rectly, I will terminate contact and report the attempted

contact in writing to the Case Manager and Treatment

Staff.

3. I will not pass by the place where my victim lives,

plays, works or goes to school. I will not go to the homes or

residences of the victim’s family or friends.

4. Any contact with my victim will be arranged and

approved by the Case Manager and the Treatment Staff.

Contact with Children

5. I will not have direct or indirect contact with children

unless, supervised by the Case Manager and Treatment

Staff or a chaperon who is approved by the Case Manager

and the Treatment Staff.

6. If Iam in an area where children are, I will leave the

area. A child is any person younger then eighteen y

old. —

Contact with Potential Victims

7. I will not have direct or indirect contact with potential

victims. If I am in an area where potential victims are, I

will leave the area. Any contact with potential victims will

be done under the supervision of an approved chaperon or

the Case Manager and Treatment Staff. A potential victim

includes but is not limited to persons similar to persons

whom I have already sexually exploited. The Case Man-

ager and Treatment Staff will inform me who constitutes

potential vi uns. I agree to use the definition of potential

App. 90

victim as designated by the Case Manager and Treatment

Staff.

Potential Victim (specify):

Potential Victim (specify):

Potential Victim (specify):

Potential Victim (specify):

8. I will not have contact with or harass sexual assault

treatment program contractors, staff, volunteers, or

clients.

Contact with Family Members

9. I will not have any contact with family members

unless approved by the Case Manager and Treatment

Staff. EXCEPTIONS:

Initial Date

Initial Date

Initial Date

10. I understand that family members may be required

to submit to a criminal background check before I can

have contact with them.

11. I agree to allow and encourage family members to

attend trainings conducted by The Case Manager or

Treatment Staff.

12. I agree to sign a release permitting unfettered, two-

way communication between family members and the

Case Manager, family members and the Treatment Staff

App. 91

and family members and other professionals involved in

my treatment.

13. I understand that I may not be allowed to have

contact with family members, or contact with family

members may be suspended, unless the family members

have completed counseling required by the Case Manager

or Treatment Staff.

Control of Deviant Behavior

14. I will not buy, create, or possess pornography. I will

not watch pornographic videos, TV programs or movies.

15. I will not watch R-rated movies or TV programs

unless I discuss it with the Case Manager and Treatment

Staff and receive prior written approval! from both parties.

16. I will not display in my room or residence nude

pictures or pictures of people who are partially clad, for

example, wearing swim suits, underwear or tight and

revealing clothes.

17. Iwill not cruise for victims. That is, I will not walk or

ride around aimlessly, nor will I sit and watch people.

18. I will not go to schools, parks, swimming pools, movie

theaters, public libraries, amusement parks, arcades or

malls where children or potential victims are likely to be. I

will not obtain work that requires contact with children or

potential victims.

19. I will not use prostitutes. I will not travel through or

go to places where prostitutes are located.

20. I will not make obscene telephone calls. I will not

make telephone calls just to listen.

App. 92

21. I will not touch people without their permission. I

will not tickle or horseplay. I will not bump into people in

an attempt to touch them for sexual gratification.

22. I will not engage in voyeurism of adults or children,

for example. I will not look down the blouses of women or

children.

23. Iwill not use the Internet or computers to gain access

to sexual material or sexual partners. I will allow my Case

Manager or his/her designee to inspect my computer

including all hardware and software. I will allow my Case

Manager or his/her designee to take my computer to have

it assessed by computer experts to determine if I have

used my computer for sexual purposes.

24. I will not engage in exhibitionism.

Control of Sexual Behavior

25. I will not use nonsexual objects during sexual acts,

for example, shoes or belts.

26. Iwill not use fetishism.

27. I will not masturbate to deviant fantasies, especially

to fantasies of victims or potential victims. I will stop

deviant fantasies when they occur.

28. Iwill not use animals during sexual acts.

29. I will not use 1-900 sex numbers or any form of

telephone sex.

30. I will not have sexual contact with anyone who is

under the age of legal consent.

31. Iwill not force any person to have sex with me.

App. 93

32. I will not buy, possess or use sadomasochistic bind-

ings, restraints or other paraphernalia.

33. I will not trick or bribe a person to have sex with me.

I will not make a person feel guilty so that he/she will

have sex with me.

34. Iwill not have sex with a person who is intoxicated or

has been using drugs or alcohol.

35. I will not engage in casual sex, that is, sex with

persons with whom I am not in a committed, monogamous

relationship.

36. I will not engage in anonymous sex, that is, sex with

persons I do not know and am not in a relationship with.

37. I will not have sexual contact with a person without

first telling him or her that I am a Sexually Violent Preda-

tor. Before I have sexual contact with that person, I will

sign a release permitting unfettered, two-way communica-

tion between the Case Manager and Treatment Staff and

my potential sexual partner. I understand that the Case

Manager and Treatment Staff must meet with my poten-

tial sexual partner before I have sex with that person.

Control of High Risk Behavior

38. Iwill not drink alcohol or use illicit drugs.

39. I will not work in or go to bars, clubs or other places

where the sale of alcohol is the primary source of business.

40. Il agree to submit to random drug and alcohol screens.

41. Iwill not commit any new crimes.

App. 94

42. I will abide by any dress code established for me by

the Case Manager or Treatment Staff.

43. I will not engage in aggression or violence towards

myself or others.

44. I will not join sex clubs.

45. Iwill not go to topless bars or adult bookstores.

46. I will not buy, borrow, steal, possess or use cameras,

video recorders, audio recorders, CD recorders, DVD

recorders or any other recording device.

47 Iwill not use ficitious [sic] names or aliases.

48. Iwill not use a Post Office box.

49. I will observe the schedule developed for me by the

Interagency Case Management Team.

50. I will not associate with persons on probation or

parole or known felons, especially other sex offenders.

51. I will not buy or possess children’s or cross gender

clothing.

52. Iwill not buy or possess costumes or masks.

53. I will not buy, possess or wear law enforcement

identifications, insignias, badges, uniforms or other items

associated with law enforcement.

54. I will not buy possess or wear military uniforms,

identifications, insignias or other items associated with

the military.

55. If and when I am allowed to operate a motor vehicle.

I will never pick up hitchhikers or stop to help persons

stranded on the road.

App. 95

Travel

56. I agree to follow the Case Manager’s rules regarding

travel.

57. J agree to have an approved Travel Plan before

leaving the county. I understand that Travel Plans may

take two weeks or more before approved by the Case

Manager and Treatment Staff.

58. I agree to have a High Risk Plan before going

through a high impulse area. I understand that High Risk

Plans may take as much as two weeks before the Case

Manager and Treatment Staff approve them.

59. I will not own, operate or use a motor vehicle without

prior approval from the Case Manager and Treatment

Staff.

60. If I am permitted to operate a motor vehicle. I will

maintain a driving log to include the following information

each time the vehicle is used: mileage, time of departure

and arrival, destination, route traveled and passengers.

61. I agree never to be in a motor vehicle with a child or

potential victim.

Supervision Guidelines

62. I agree to attend all scheduled appointments with my

Case Manager or his or her designee. Scheduled appoint-

ments include office visits as well as field visits.

63. I agree to be on time for all appointments with my

Case Manager or his or her designee.

64. I agree to comply with the Treatment and Supervi-

sion Contract.

App. 96

65. I agree to comply with any requests or directives

made by the Case Manager.

66. I agree to attain and maintain full-time employment

as approved by the Interagency Case Management Team.

67. I agree to allow the Case Manager to make face-to-

face contact with me at home, work or other places outside

the Case Manager’s office.

68. I agree to provide the Case Manager with any and all

information requested regarding my family, friends,

employer, and recreational and other contacts.

69. I agree to allow the Case Manager to have contact

with any and all of my family, friends, coworkers, ac-

quaintances and other persons whom I might have had or

possibly could have incidental contact with.

70. I agree to actively participate in and successfully

complete any and all counseling programs or sessions as

directed by the Case Manager.

Tracking Services

71. I agree to wear an electronic monitor as directed by

the Case Manager.

72. I agree to follow all requirements of the tracking

services as established by the Case Manager and other

professionals involved in providing tracking services.

73. I agree not to tamper with, alter, modify or manipu-

late any electronic monitor or associated equipment used

to monitor me.

App. 97

Therapy Guidelines

74. I will be on time for all scheduled appointments. The

Treatment Staffs act as the timekeepers.

75. Iwill attend all scheduled sessions. Treatment Staffs

will document and report whether or not I attend a sched-

uled session.

76. I agree to actively participate in and successfully

complete the OSVPTP. Active participation includes

talking constructively during therapy sessions and com-

pleting assignmen

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