in Re Commitment of Norman Lewis Evers

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-11-00430-CV
____________________

IN RE COMMITMENT OF NORMAN LEWIS EVERS
_______________________________________________________ ______________

On Appeal from the 435th Judicial District Court
Montgomery County, Texas
Trial Cause No. 11-01-00860 CV
________________________________________________________ _____________

OPINION

Appellant, Norman Lewis Evers, filed a motion for rehearing after this Court

issued a memorandum opinion in the appeal from his civil commitment as a sexually

violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 &

Supp. 2012) (the SVP statute). He complains that this Court did not sufficiently address

his arguments, and he adds another argument. After considering his renewed challenges

to the trial court‟s jurisdiction and the sufficiency of the evidence, we withdraw the

memorandum opinion and substitute this opinion. See Tex. R. App. P. 47.1, 47.4. We

hold that the trial court had jurisdiction over the subject matter despite appellant‟s parole

status, and that the evidence is sufficient to support the jury verdict. The judgment of the

trial court is affirmed.

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 JURISDICTION

We begin with Evers‟s argument in issue one regarding section 841.021 as an

alleged statutory prerequisite to suit. He maintains that statutory prerequisites to suit

implicate subject matter jurisdiction if they “„define, enlarge, or restrict the class of

causes the court may decide or the relief that may be awarded.”‟ Evers relies in part on

Sierra Club v. Texas Natural Resource Conservation Commission, 26 S.W.3d 684, 687-

88 (Tex. App.—Austin 2000), aff’d on other grounds, 70 S.W.3d 809, 811, 814-15 (Tex.

2002). He asserts that the phrase “person‟s anticipated release date” in section 841.021

refers only to a person who is being released as a result of completion of his sentence,

and not to someone like himself who is being released from prison on parole. See Tex.

Health & Safety Code Ann. § 841.021 (West Supp. 2012). Evers argues this construction

of the phrase serves to restrict the class of causes the trial court may decide in the SVP

context, and as a result the requirement of an anticipated release date is a jurisdictional

statutory prerequisite to suit.

The aim of statutory construction is to determine and give effect to the

Legislature‟s intent. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). We review

the construction of a statute de novo. See Atmos Energy Corp. v. Cities of Allen, 353

S.W.3d 156, 160 (Tex. 2011). A reviewing court looks first to the plain and common

meaning of the statute‟s words. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). If the

meaning of a statute is clear and unambiguous, the court defines the statute‟s words

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according to their common meaning without resort to rules of construction or extrinsic

aids. In re Estate of Nash, 220 S.W.3d 914, 917 (Tex. 2007). If a word acquires meaning

by legislative definition or otherwise, the words in a statute are given their technical

meaning. Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742, 747 (Tex. 2012).

Section 841.021 sets out the pre-petition procedure the State is to follow in an

SVP case:

(a) Before the person’s anticipated release date, the Texas Department of
Criminal Justice shall give to the multidisciplinary team established under
Section 841.022, written notice of the anticipated release of a person who:
(1) is serving a sentence for:
(A) a sexually violent offense described by Section
841.002(8)(A), (B), or (C);
....
and
(2) may be a repeat sexually violent offender.
....

Tex. Health & Safety Code Ann. § 841.021(a) (emphasis added). Section 841.021(c)

provides that at least sixteen months before the person‟s anticipated release date (barring

exigent circumstances), TDCJ will give notice of that person‟s release to the

multidisciplinary team so that the team can make certain specified assessments. Id. §§

841.021(c), 841.022 (West Supp. 2012). The multidisciplinary team reviews available

records of a person who may be a sexually violent predator. See id. § 841.022. The

sixteen month period allows time for the commitment process to be completed before the

person is released from the secure correctional facility. The statute does not distinguish

between those anticipated to be released on parole and those anticipated to be released

unconditionally as a result of completion of their sentences. See generally In re
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Commitment of Nicholas, No. 09-08-00452-CV, 2010 WL 1795952, at **2-3 (Tex

App.—Beaumont May 6, 2010, pet. denied) (no distinction under section 841.005

between those on parole and those still incarcerated).

The phrase “anticipated release date” is not expressly defined in Chapter 841, and

sections 841.021 through 841.023 (the statutes governing the pre-petition administrative

process) do not suggest that the phrase has a technical meaning. See Tex. Health & Safety

Code Ann. §§ 841.021, .022, .023 (West. Supp. 2012). Evers relies on a dictionary

definition of “release”: “action of liberation or setting free from confinement or

restraint.” Evers narrows the definition and gives it a meaning not reflected in the statute.

“Release” in Evers‟s view means release from prison, but only those released from prison

because of completion of the sentence. He contends that the phrase does not encompass

those released on parole, because parole is a form of restraint during which a parolee is

still considered to be serving his sentence. As a parolee, he argues, he is still under

restraint and he does not have an anticipated release date, or at least not one that is

imminent.

The statute does not indicate that the word “release” in the phrase “anticipated

release date” has that narrow meaning. See Tex. Health & Safety Code Ann. § 841.021.

In the context of section 841.021(a) and a person in prison, the language refers to the

release of the person from the secure correctional facility. Id.; see also Tex. Health &

Safety Code Ann. § 841.081(a) (West 2010). When it appears that the inmate is

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approaching the time of release from a secure correctional facility, TDCJ must notify the

multidisciplinary team so that the team can make the section 841.022(c) assessments

about the person.

The legislative history to Senate Bill 29 (one of the bills addressing sexually

violent predator issues) states, “Currently, sexually violent predators are being released

from prison once they have served out their sentences even when criminal justice

officials are confident that they will offend again.” Senate Comm. on State Affairs, Bill

Analysis, Tex. S.B. 29, 76th Leg., R.S. (1999). Although this explanation speaks of

“served out their sentences,” the language employed in the statute passed by the

Legislature does not contain that wording. If the Legislature intended to limit civil

commitment under Chapter 841 to only those persons completing their sentences and not

on parole, we believe it would have done so expressly. See generally Traxler, 376

S.W.3d at 747; TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.

2011) (“We presume that the Legislature chooses a statute‟s language with care,

including each word chosen for a purpose, while purposefully omitting words not

chosen.”).

Moreover, when the Legislature adopts a provision that imposes a requirement but

does not specify whether the failure to satisfy that requirement defeats the court‟s

jurisdiction, a reviewing court presumes that the Legislature did not intend to make the

provision jurisdictional. See In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 307 (Tex.

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2010). This presumption is overcome only by clear legislative intent to the contrary. City

of DeSoto v. White, 288 S.W.3d 389, 394 (Tex. 2009). The Texas Supreme Court has

explained that we are to look at the statutory provision itself to ascertain whether the

statute provides clear legislative intent that it is jurisdictional. See id. Section 841.021

does not provide, or even suggest, that the provision is jurisdictional, nor does the statute

specifically mandate that an anticipated release date is a prerequisite to suit. See id. at

395. Section 841.021 does not indicate that the consequence of noncompliance would be

dismissal of the petition. See generally In re United Servs. Auto. Ass’n, 307 S.W.3d at

308; see also, e.g., In re Commitment of Hall, No. 09-09-00387-CV, 2010 WL 3910365,

at **1-3 (Tex. App.—Beaumont Oct. 7, 2010, no pet.) (Chapter 841‟s requirement that

defendant be a “repeat sexually violent offender” is not jurisdictional.); In re

Commitment of Robertson, No. 09-09-00307-CV, 2010 WL 3518509, at **12-13 (Tex.

App.—Beaumont Sept. 9, 2010, pet. denied) (“Nothing in sections 841.021, .022, .023, or

.041 indicates that the Legislature intended to divest the trial court or this Court of

jurisdiction if the person is convicted of another offense after the State files a petition

seeking civil commitment.”).

Also, section 841.006 suggests that section 841.021‟s requirement of notice to the

multidisciplinary team, which is triggered by the anticipated release date, is not intended

to confer a right to the individual or to form the basis for a challenge to the commitment.

See Tex. Health & Safety Code Ann. § 841.006 (West 2010). Section 841.006 provides

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that a committed person does not have a “cause of action” under Chapter 841 for failure

to give notice within the required period. Id. Section 841.021(c) provides that under

exigent circumstances, the Department can provide the notice to the multidisciplinary

team at any time before the anticipated release date. See id. § 841.021(c).

In conjunction with his statutory construction argument, Evers references statutes

concerning parole from the Government Code, and asserts that the “comprehensive

statutory parole law scheme in Chapter 508 . . . is further evidence that the Legislature

did not intend for the civil commitment provisions in Chapter 841 . . . to apply to a

parolee or to someone about to make parole[.]” See Tex. Gov‟t Code Ann. §§ 508.001-

.324 (West. 2012). Chapter 841 (“Civil Commitment of Sexually Violent Predators”) in

the Health and Safety Code concerns civil matters. Evers nevertheless suggests that the

Board of Pardons and Paroles has exclusive jurisdiction over Evers.

The purpose of the civil commitment statute is to protect the community from

harm and to treat the individual who has been committed as a sexually violent predator.

See In re Commitment of Fisher, 164 S.W.3d 637, 648, 651 (Tex. 2005); see also Tex.

Health & Safety Code Ann. § 841.001 (West 2010) (“The legislature finds that a small

but extremely dangerous group of sexually violent predators exists and that those

predators have a behavioral abnormality that is not amenable to traditional mental illness

treatment modalities and that makes the predators likely to engage in repeated predatory

acts of sexual violence.”). Section 841.081(a) provides that a commitment order “is

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effective immediately on entry of the order, except that the outpatient treatment and

supervision begins on the person‟s release from a secure correctional facility or discharge

from a state hospital[.]” See Tex. Health & Safety Code Ann. § 841.081(a) (West 2010).

The statute also provides that “the case manager may provide to the person instruction

regarding the requirements associated with the order, regardless of whether the person is

incarcerated at the time of the instruction.” Id. § 841.081(b) (West 2010). These

provisions indicate the trial court has jurisdiction to sign an effective commitment order

despite the restraint of incarceration, and that treatment and supervision begin on “release

from a secure correctional facility.” This would indicate that “anticipated release date” in

this context means the anticipated date for “release from a secure correctional facility.”

Essentially, accepting Evers‟s arguments would require that we read into these provisions

an exception for those individuals released from a secure correctional facility but on

parole. We do not believe that would be consistent with the meaning of the statutory

provisions.

RIPENESS

In his motion for rehearing, Evers raises a jurisdictional challenge based on

ripeness. “Ripeness „is a threshold issue that implicates subject matter jurisdiction . . .

[and] emphasizes the need for a concrete injury for a justiciable claim to be presented.‟”

Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000) (quoting Patterson v.

Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998)); see

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also Robinson v. Parker, 353 S.W.3d 753, 755 (Tex. 2011). Ripeness focuses on when

the action may be brought. Waco Indep. Sch. Dist., 22 S.W.3d at 851-52. In determining

whether a controversy is ripe for adjudication, the court considers whether the case

involves contingent or uncertain future events which may not occur as anticipated or may

not occur at all. Patterson, 971 S.W.2d at 442-43; In re Commitment of Shaw, 117

S.W.3d 520, 523 (Tex. App.—Beaumont 2003, pet. denied). “The ripeness doctrine

avoids premature adjudication on a hypothetical set of facts.” McAllen Med. Ctr., Inc. v.

Cortez, 66 S.W.3d 227, 232 (Tex. 2001).

Section 841.021 is part of an administrative process applicable to a person who is

anticipated to be released from a secure correctional facility and who may be a sexually

violent predator. See Tex. Health & Safety Code Ann. §§ 841.021(a), 841.081. Evers

does not contend TDCJ failed to give notice under section 841.021 or that the remainder

of the administrative process was not followed. He argues the case was not ripe, because

of his interpretation of the phrase “anticipated release date” in section 841.021(a).

This Court addressed a ripeness argument in In re Commitment of Robertson, 2010

WL 3518509, at **12-13. The State filed a petition to commit Robertson. Approximately

a month and a half later, he was charged with two offenses he committed while

incarcerated. Robertson received a four year sentence. Less than a year later, he filed a

motion to dismiss the petition to commit him as a sexually violent predator. He argued

that because his release from prison was not imminent, the SVP case was not ripe and the

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trial court lacked jurisdiction. This Court rejected Robertson‟s ripeness jurisdictional

challenge. Id.

As in Robertson, the ripeness argument here has no merit. Whether the person is

convicted of another offense after the State files a petition seeking civil commitment, as

was the case in Robertson, or whether a person is released on parole or released

unconditionally, there is nothing in sections 841.021, .022, .023, or .041 that indicates the

Legislature intended to divest the trial court of jurisdiction. See Robertson, 2010 WL

3518509 at *13. We are not persuaded by Evers‟s ripeness and jurisdictional arguments,

or his arguments concerning the “release” date. We overrule appellant‟s challenges to the

trial court‟s jurisdiction.

SUFFICIENCY OF THE EVIDENCE

The State must prove beyond a reasonable doubt that the person to be committed

under the statute is a sexually violent predator. See Tex. Health & Safety Code Ann. §

841.062(a) (West 2010); In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—

Beaumont 2002, pet. denied). A person is a “sexually violent predator” 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.” Tex. Health &

Safety Code Ann. § 841.003(a) (West 2010).

In a legal sufficiency challenge, we view all the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could find, beyond

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a reasonable doubt, the elements required for commitment under the SVP statute. See In

re Commitment of Mullens, 92 S.W.3d at 885. A factual sufficiency challenge to an SVP

commitment order requires this Court to weigh the evidence to determine whether a

verdict that is supported by legally sufficient evidence nevertheless reflects a risk of

injustice so great that we are compelled to grant a new trial. In re Commitment of Day,

342 S.W.3d 193, 213 (Tex. App.—Beaumont 2011, pet. denied).

In issues two and three, Evers argues the evidence is insufficient to support a

finding that he is likely to commit a predatory act of sexual violence while he is on parole

supervision. Relying on Chapter 508 in general and section 508.142(e)(2) in particular,

Evers contends that the Board of Pardons and Paroles “should be considered the superior

institutional actor to make the call on whether appellant will be dangerous[,]” and he

maintains that the question is whether Chapter 508 “permits any further fact finding by

another fact finder under Chapter 841” while a person is on SISP parole.

Evers asserts that, because section 508.141(e)(2) of the Government Code requires

a finding by the parole board that a person is “able and willing to fulfill the obligations of

a law-abiding citizen[,]” the parole board must have found he will not engage in a

predatory act of sexual violence. See Tex. Gov‟t Code Ann. § 508.141(e)(2). Section

508.141 makes no reference to a behavioral abnormality, a requirement for civil

commitment under Chapter 841. See Tex. Gov‟t Code Ann. § 508.141; see also Tex.

Health & Safety Code Ann. § 841.002(2) (West Supp. 2012), § 841.003(a). The SVP

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statute was enacted because there are persons with a behavioral abnormality. See Tex.

Health & Safety Code Ann. § 841.001. Chapter 841 does not assign a role to the Board of

Pardons and Paroles in making that determination. The civil commitment statute requires

compliance with the commitment order. We are not persuaded by the suggestion that

Chapter 508, in effect, replaces Chapter 841. Civil commitment and parole are separate

processes with separate purposes.

Evers does not directly challenge the finding that he has a behavioral abnormality.

He limits his focus to his contention that the State had to show he would likely engage in

a predatory act of sexual violence while he is on SISP parole. He asserts, in effect, that

the parole panel‟s belief that a person is “able and willing to fulfill the obligations of a

law-abiding citizen” is the functional equivalent of a finding that a person is not likely to

“engage in a predatory act of sexual violence.” See Tex. Gov‟t Code Ann. § 508.141(e)

(“parole panel believes”). The State contends “[a] person may be able and willing, but

still be not very likely or very successful.” The State‟s response suggests that while the

Board may believe a person is “able” and “willing” to follow the law, he still may have a

behavioral abnormality that puts him at an increased risk requiring commitment under the

SVP statute.

A belief by the Board is not the functional equivalent of a finding that a person

does not have a behavioral abnormality that makes him likely to engage in a predatory act

of sexual violence. The Board does not make that analysis or determination, because the

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statute does not give the Board that task. As one Court has noted, “A finding that a

person suffers from an emotional or volitional defect so grave as to predispose him to

threaten the health and safety of others with acts of sexual violence entails a

determination that he has „serious difficulty controlling behavior.‟” In re Commitment of

Browning, 113 S.W.3d 851, 863 (Tex. App.—Austin 2003, pet. denied). The SVP civil

commitment statute addresses the released person‟s increased risk within the context of

the statutory definition of behavioral abnormality. The granting of parole does not

exclude the possibility of civil commitment.

Furthermore, nothing in the civil commitment statute limits the scope of the

records reviewed by the experts to those records relating only to the time Evers has spent

on SISP parole. Although the jury could consider Evers‟s record while on SISP parole,

the jury was not confined to consideration of only that time frame. See generally Tex.

Health & Safety Code Ann. §§ 841.023(a), 841.142 (West Supp. 2012); §§ 841.061,

841.062 (West 2010).

Evers had previously been convicted in Texas of six offenses of burglary of a

habitation with intent to commit rape. There was also evidence of a rape of a woman in

California. The experts reviewed records indicating Evers raped seven women from

1979-1980. He was sentenced in 1982 for the six Texas offenses and paroled in 1990. In

1991, Evers was convicted of burglary of a habitation and was returned to prison. He was

released on SISP parole in March 2011. See Tex. Gov‟t Code Ann. § 508.317(d) (Super-

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intensive supervision program “must provide the highest level of supervision provided by

the department.”).

The State‟s experts testified that Evers suffers from a behavioral abnormality that

makes him likely to engage in a predatory act of sexual violence. Dr. Thorne, a clinical

and forensic psychologist, diagnosed Evers with paraphilia not otherwise specified (a

sexual disorder), a depressive disorder, a long-standing psychotic disorder, and an

antisocial personality disorder (defiance of authority, violations of laws or expectations of

society). Dr. Arambula, a psychiatrist, made similar diagnoses, in addition to diagnoses

of polysubstance abuse by history and a form of paraphilia with features of sadism.

The jury heard evidence regarding Evers‟s criminal history (which included

multiple rapes involving the use of threats, violence, and weapons); actuarial test results

(with scores indicating a high risk of reoffending); victimization of women; antisocial

personality disorder; sadistic behavior; and a history of drug abuse. The jury also heard

testimony regarding Evers‟s conduct in prison. He had forty-seven disciplinary

infractions. Dr. Thorne testified Evers was still exhibiting in prison the sexual deviancy

that he exhibited outside prison. Based on significant risk factors, Dr. Arambula testified

that Evers is at substantial risk to do what he has done in the past.

Arnold Pruitt, Evers‟s parole officer on SISP, testified Evers had only been on the

supervision for approximately a month, and that he had complied with the probation

requirements during that time. Pruitt explained that parolees usually comply for a month.

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He indicated that those on SISP parole usually begin having problems with the

supervision at about three months, but that parolees over the age of fifty typically comply

with the supervision requirements. Pruitt also testified he has had parolees violate the

intensive supervision even though they were GPS monitored.

Evers maintains that at age fifty he is a changed man. He has completed his GED,

taken some college courses, and completed drug and alcohol classes and the Changes

class in prison. He testified that the fourteen female officers who reported instances of his

sexual misconduct were lying.

Considering all the evidence in the light most favorable to the verdict, we

conclude the jury could reasonably find beyond a reasonable doubt that Evers has a

behavioral abnormality that makes him likely to engage in a predatory act of sexual

violence. The record does not reflect a risk of injustice that compels granting a new trial.

The evidence is sufficient to support the jury‟s verdict.

Appellant‟s issues are overruled. The trial court‟s judgment is affirmed.

AFFIRMED.

________________________________
DAVID GAULTNEY
Justice

Submitted on July 19, 2012
Opinion Delivered December 13, 2012

Before McKeithen, C.J., Gaultney and Kreger, JJ.

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