In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-14-00406-CV
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IN RE COMMITMENT OF PAUL KEEN
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On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 01-11-07041 CV
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OPINION
In May 2002, Paul Keen was civilly committed as a sexually violent
predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 &
Supp. 2014). In July 2014, Keen filed an unauthorized petition for release. The trial
court denied Keen’s petition, finding that probable cause did not exist that Keen’s
behavioral abnormality had changed to the extent that he is no longer likely to
engage in a predatory act of sexual violence. In two appellate issues, Keen
contends that: (1) this Court has jurisdiction to consider his appeal from the denial
of his petition; and (2) the trial court improperly applied the probable cause
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standard when denying his petition. We reverse the trial court’s judgment and
remand the case for further proceedings consistent with this opinion.
Jurisdiction
In issue one, Keen argues that this Court has jurisdiction over his complaint
challenging the denial of his unauthorized petition for release. Absent statutory
authority, an appellate court only has jurisdiction over final judgments. Bison Bldg.
Materials, Ltd. v. Aldridge, 422 S.W.3d 582, 585 (Tex. 2012). A final judgment (1)
disposes of all pending claims and parties; or (2) clearly and unequivocally states
that it finally disposes of all claims and parties. Id.
A person committed as an SVP has a right to file with the trial court an
unauthorized petition for release. Tex. Health & Safety Code Ann. § 841.122
(West 2010); In re Commitment of Fisher, 164 S.W.3d 637, 642 (Tex. 2005). The
trial court shall deny the unauthorized petition, without a hearing, if: (1) the
petition is frivolous; (2) the petitioner previously filed an unauthorized petition and
the trial court determined, on review or following a hearing, that the petition was
frivolous; or (3) the petitioner previously filed an unauthorized petition and the
trial court found, on review or following a hearing, that “petitioner’s behavioral
abnormality had not changed to the extent that the petitioner was no longer likely
to engage in a predatory act of sexual violence.” Tex. Health & Safety Code Ann.
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§ 841.123(c)(2)(B) (West 2010). The trial court is not required to deny a petition
“if probable cause exists to believe that the petitioner’s behavioral abnormality has
changed to the extent that the petitioner is no longer likely to engage in a predatory
act of sexual violence.” Id. § 841.123(d). If probable cause is found, the trial court
must hold a hearing and the State and petitioner both receive an immediate right to
examination of the petitioner by an expert. Id. § 841.124(a), (b) (West 2010). At
the hearing, the State must “prove beyond a reasonable doubt that the petitioner’s
behavioral abnormality has not changed to the extent that the petitioner is no
longer likely to engage in a predatory act of sexual violence.” Id. § 841.124(d).
The denial of Keen’s unauthorized petition concluded a discrete phase of the
SVP proceeding. The sole issue before the trial court was whether Keen
demonstrated grounds for his release. See id. § 841.123(c), (d). The trial court
disposed of this issue by finding that “probable cause does not exist that the
behavioral abnormality of PAUL KEEN has changed to the extent that he is no
longer likely to engage in a predatory act of sexual violence.” The trial court
expressly “ORDERED that the unauthorized petition for release from civil
commitment filed herein by the committed person, PAUL KEEN, is in all things
DENIED.” There were no parties before the trial court other than Keen and the
State. Because the trial court’s order disposed of all pending claims and parties
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presented by Keen’s unauthorized petition for release, there was nothing left for
the trial court to resolve with respect to Keen’s petition. See Am. Gen. Fire & Cas.
Co. v. Vandewater, 907 S.W.2d 491, 493 (Tex. 1995) (“Since the trial court
judgment disposed of all parties and the one issue that was before it, it is a final
judgment which may be reviewed on appeal.”). Because the trial court’s order
constitutes an appealable final judgment, we have jurisdiction to consider Keen’s
complaint. See Aldridge, 422 S.W.3d at 585. We sustain issue one.
Denial of Unauthorized Petition for Release
In issue two, Keen challenges the denial of his petition on grounds that
section 841.123 required the trial court to determine whether Keen’s petition was
frivolous and not whether probable cause existed to believe that his behavioral
abnormality had changed to the extent that he is no longer likely to engage in a
predatory act of sexual violence. We review statutory construction issues de novo.
Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). We construe the statute to
give effect to the Legislature’s intent. Id. “The plain meaning of the text is the best
expression of legislative intent unless a different meaning is apparent from the
context or the plain meaning leads to absurd or nonsensical results.” Id.
In this case, the plain language of section 841.123(c) gives the trial court
authority to deny an initial petition for unauthorized release if the petition is
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frivolous. Tex. Health & Safety Code Ann. § 841.123(c). Keen’s petition for
unauthorized release is the first that he filed; thus, whether Keen’s petition was
frivolous is the standard the trial court should have applied. See id. A petition is
“frivolous” when it lacks a legal basis or legal merit. Black’s Law Dictionary 692
(8th ed. 2004).
Attached to Keen’s petition was a report from psychologist Stephen A.
Thorne, dated October 2013. Thorne conducted the Hare Psychopathy Checklist –
Revised, which placed Keen in the low range of psychopathic characteristics.
Keen’s score on the Static-99R placed him in the moderate to high risk for re-
offense. Thorne stated that Keen meets the criteria for unspecified paraphilic
disorder, victim of non-parental child sexual abuse, and unspecified personality
disorder. He identified Keen’s risk factors: (1) sexually deviant behavior with
multiple young male victims, including stranger victims and undocumented
victims, (2) commission of offenses after his initial punishment and while under
mandatory supervision, (3) fascination with young males, (4) grooming behavior,
and (5) violation of the terms of his civil commitment. Thorne also outlined
mitigating factors, including Keen’s older age, no commission of a sexual offense
since 1991, no diverse criminal history, completion of sex offender treatment, lack
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of psychiatric difficulties, capacity to engage in age-appropriate employment and
relationships, and lack of substance abuse. Thorne concluded that:
. . .Keen does not presently suffer from a behavioral abnormality that
makes him likely to engage in a predatory act of sexual violence. Mr.
Keen does, no doubt, likely have some personality traits that have
negatively impacted his participation in both sex offender treatment
and the civil commitment program and there are areas of his own
personality and functioning that he would benefit from continued
insight into. That being said, when considering all the available
information, with particular emphasis on Mr. Keen’s age and the fact
that from 2002 to 2012 (while living in the community) he is not
accused of having engaged in any type of sexually deviant behavior,
this examiner does not believe that Mr. Keen can presently be
considered “likely” to engage in a predatory act of sexual violence.
In an October 2013 letter, Susan Rivas, a program specialist for the
Office of Violent Sex Offender Management, requested that Keen remain in
the Civil Commitment Program under all previous conditions. She noted that
Keen was placed in an outpatient sexually violent predator treatment
program and that, since his last biennial report, Keen received sanctions for
rule violations. In a biennial assessment report, dated November 2013, two
licensed sex offender therapists stated that Keen had entered outpatient
treatment in November 2012, but he “remains sexually attracted to male
children as a matter of psychosexual make up[]” and they knew of no
“means that would pluck that out of him, or . . . how to permanently replace
his sexually deviant attraction with an appropriate sexual attraction to
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adults.” They recommended that Keen continue in the “Civil Commitment
Program where he can continue to reinforce the healthy cognitions and
appropriate boundaries he has developed in treatment.”
The record does not demonstrate that Keen’s petition was lacking a legal
basis or legal merit. The only evidence before the trial court that addressed the
applicable standard for rejecting an unauthorized petition for release, that the
petition is frivolous, was the report from the State’s psychologist, Dr. Stephen A.
Thorne. Thorne concluded that Keen “does not presently suffer from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.”
Although probable cause may exist for the efficacy of continued treatment for
Keen, that is not the appropriate standard. Based on this evidence, we cannot
conclude that Keen’s petition was frivolous. For that reason, we reverse and
remand to the trial court to conduct further proceedings consistent with this
opinion.
REVERSED AND REMANDED.
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STEVE McKEITHEN
Chief Justice
Submitted on February 5, 2015
Opinion Delivered April 23, 2015
Before McKeithen, C.J., Kreger and Johnson, JJ.
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