In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-12-00413-CV
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IN RE COMMITMENT OF JOHNNY YAW
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On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 07-02-02126 CV
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MEMORANDUM OPINION
In November 2007, the trial court rendered an agreed final judgment and an
order civilly committing Johnny Yaw 1 for outpatient treatment and supervision
pursuant to the sexually violent predator statute. See Tex. Health & Safety Code
Ann. §§ 841.001-.151 (West 2010 & Supp. 2012). The order required Yaw to
reside in Tarrant County, Texas. On July 26, 2012, in response to a motion to
modify filed by the Office of Violent Sex Offender Management (OVSOM), the
trial court modified the judgment and civil commitment order to require that Yaw
1
On some documents in the record, Yaw’s first name is spelled “Johnnie[.]”
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“reside in a Texas residential facility under contract with the Office of Violent Sex
Offender Management (OVSOM) or at another location or facility approved by the
OVSOM.” 2 Yaw is one of many persons affected by similar modification orders
signed by the trial court on July 26. Yaw asserts three appellate issues challenging
the modification order. Because the order is not appealable and mandamus relief is
not warranted, we dismiss Yaw’s appeal.
The trial court’s July 26 order modified a requirement of Yaw’s SVP
treatment without finally disposing of the commitment case and no interlocutory
appeal is statutorily authorized; thus, Yaw’s notice of appeal fails to invoke our
appellate jurisdiction. See In re Commitment of Cortez, No. 09-12-00385-CV, ___
S.W.3d ___, 2013 Tex. App. LEXIS 7854, at **5-6 (Tex. App.—Beaumont June
27, 2013, no pet. h.) (not yet released for publication). However, Yaw asks that we
alternatively consider his brief as a request for mandamus relief. For the reasons
stated in Cortez, we will address Yaw’s issues as a mandamus petition. See id. at
**6-8.
2
In 2011, operation of the SVP treatment program transferred from the
Council on Sex Offender Treatment to OVSOM. See Act of May 30, 2003, 78th
Leg., R.S., ch. 347, § 16, 2003 Tex. Gen. Laws 1505, 1514, amended by Act of
May 23, 2011, 82nd Leg., R.S., ch. 1201, § 3, 2011 Tex. Sess. Law Serv. 3197,
3199 (current version at Tex. Health & Safety Code Ann. § 841.002(4) (West
Supp. 2012)).
2
In issues one and two, Yaw challenges the trial court’s refusal to allow
counsel to make objections during the modification proceedings, consideration of
the motion to modify and objections on submission, and refusal to allow Yaw to
communicate with his counsel or present evidence during the proceedings. Yaw
also asserts within issue two that because the State had not filed a written motion to
modify, no motion to modify was properly before the trial court. Yaw further
contends that the State must “actually serve a complete and accurate copy of a
pleading upon the individual whose commitment order the State intends to modify
and his attorney.”
As we have previously explained, the trial court may modify SVP
commitment requirements “‘at any time after notice to each affected party to the
proceedings and a hearing.’” Id. at *8 (quoting Tex. Health & Safety Code Ann. §
841.082(e) (West Supp. 2012)). Yaw received notice through counsel, appeared
before the trial court after filing written objections to OVSOM’s motion to modify,
and personally appeared in court when the trial court modified the civil
commitment order. See id. at **8-10. Moreover, because of the limited
administrative purpose of modification to conform to changes made by the
Legislature, the opportunity to be heard through written submission alone does not
violate the SVP statute or due process. Id. at *11. Yaw has not shown what his
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unaddressed objections would have been, or that a contemporaneous objection was
necessary to preserve error. See id. at *13.
Yaw joined motions filed on behalf of the affected men and was present at
the hearing on the motion to modify. The trial court’s July 26 order merely
substituted the newly-created entity, OVSOM, in place of the former entity, CSOT,
because OVSOM assumed CSOT’s duties, effective September 1, 2011. See Act of
May 23, 2011, 82nd Leg., R.S., ch. 1201, § 19(a)-(c), 2011 Tex. Sess. Law Serv.
3197, 3203. The record demonstrates that Yaw was aware that the trial court was
going to make a technical change in the residency requirement to reflect that upon
Yaw’s release, OVSOM would provide his housing. We do not find it necessary to
command the trial court to vacate its order of July 26 and issue a new order after
conducting an evidentiary hearing. The order merely conformed Yaw’s
commitment requirements to reflect the change in agency made by the Legislature
the previous year. See generally Tex. Gov’t Code Ann. §§ 420A.001-.011 (West
2012); Tex. Health & Safety Code Ann. §§ 841.002, 841.007, 841.021-.023,
841.082-.084 (West Supp. 2012).
In issue three, Yaw argues that the modification procedure forces civilly
committed persons to reside in locked residential facilities where conditions are
punitive, in violation of due process. Along with numerous other civilly committed
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persons, Yaw disavowed a constitutional challenge to the statute in the trial court.
See Cortez, 2013 Tex. App. LEXIS 7854, at *13. The trial court’s July 26 order did
not alter Yaw’s status to a more restrictive custody. See id.
Because we lack appellate jurisdiction, and Yaw’s complaints do not warrant
mandamus relief, we dismiss Yaw’s appeal.
APPEAL DISMISSED.
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STEVE McKEITHEN
Chief Justice
Submitted on July 10, 2013
Opinion Delivered August 15, 2013
Before McKeithen, C.J., Gaultney and Kreger, JJ.
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