In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-16-00072-CV
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IN RE CLARENCE D. BROWN
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Original Proceeding
435th District Court of Montgomery County, Texas
Trial Cause No. 10-03-02609-CV
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OPINION
In this mandamus proceeding, Clarence D. Brown complains that the trial
court abused its discretion by denying Brown’s motion for appointment of counsel,
by granting the State’s motion to place Brown in a tiered sex offender treatment
program, and by amending an order of civil commitment to require that Brown
participate in sex offender treatment and supervision provided by the Texas Civil
Commitment Office (TCCO). On October 21, 2015, the trial court signed the
orders to implement Brown’s transition from supervision and treatment by the
Office of Violent Sex Offender Management (OVSOM) to supervision and
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treatment by the TCCO pursuant to the 2015 statutory amendments to Chapter 841
of the Texas Health and Safety Code that the Legislature enacted in S.B. 746. See
Act of May 21, 2015, 84th Leg., R.S., ch. 845, §§ 1-44, 2015 Tex. Sess. Law Serv.
2701, 2701-12 (West). We conclude that Brown was entitled to counsel but for a
different reason than urged in his petition. We conditionally grant the petition in
part.
Two of Brown’s complaints have been addressed and rejected in cases that
were decided after Brown filed his petition. First, Brown contends the trial court
denied his statutory right to outpatient treatment and argues that the civil
commitment procedure provided by Chapter 841 of the Texas Health and Safety
Code is unconstitutionally punitive. We rejected this same argument in In re
Williams, No. 09-16-00087-CV, 2016 WL 4249175, at *1-2 (Tex. App.—
Beaumont Aug. 11, 2016, orig. proceeding) (mem. op.), and in In re Commitment
of May, 2016 WL 4040186, at *4-6 (Tex. App.—Beaumont July 28, 2016, no pet.
h.). Second, Brown contends section 40(b) of S.B. 746, which required that the
trial court modify any civil commitment requirement imposed before the effective
date of the act that differs from any of the section 841.082 civil commitment
requirements as amended, violated the prohibition against retroactive laws. We
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rejected this same argument in Williams, 2016 WL 4249175, at *2, and in May,
2016 WL 4040186, at *6-8.
In a supplemental petition, Brown contends the amended statute violates the
separation of powers clause of the Texas Constitution. See generally Tex. Const.
art. II, § 1. He argues that by applying the amendments to Chapter 841 to existing
civil commitments, the Legislature interfered with the court’s authority to enter
final judgments. The separation of powers doctrine, which prohibits one branch of
government from exercising a power belonging inherently to another, is violated
when the legislative branch interferes with the functioning of the judicial process
in a field constitutionally committed to the control of the courts. In re Dean, 393
S.W.3d 741, 747-48 (Tex. 2012) (orig. proceeding). Brown argues subsection
40(b) of S.B. 746 interferes with the judicial power to enter and execute a final
judgment. Because the trial court may modify any requirement of civil
commitment after notice and a hearing, we are unpersuaded that applying the 2015
amendments to Chapter 841 affected the finality of the 2010 judgment. See Tex.
Health & Safety Code Ann. § 841.082(e) (West Supp. 2015).
Brown contends the trial court abused its discretion by denying his motion
for appointment of counsel. He argues due process required that counsel be
appointed to protect his liberty interest against being placed in total confinement.
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The State contends Brown did not have a right to have counsel appointed to
represent him in the hearing to modify the civil commitment order because it
occurred in a proceeding under Chapter 841, Subchapter E, which concerns the
administration of the sex offender treatment program. See id. §§ 841.081.-.085
(West Supp. 2015).
Generally, an indigent litigant does not have a right to have counsel
appointed to represent him in a civil case. See Gibson v. Tolbert, 102 S.W.3d 710,
712-13 (Tex. 2003). However, Chapter 841 of the Texas Health and Safety Code
provides for appointment of counsel in certain circumstances. The Office of State
Counsel for Offenders (SCFO) represents an indigent person subject to a civil
commitment proceeding under Chapter 841 of the Texas Health and Safety Code.
See Tex. Health & Safety Code Ann. § 841.005(a) (West 2010). A “civil
commitment proceeding” is defined by statute as “a trial or hearing conducted
under Subchapter D, F, or G.” Id. § 841.002(3-a) (West Supp. 2015). Subchapters
D, F, and G concern the initial determination of a person’s status as a sexually
violent predator, the biennial review to determine whether probable cause exists to
believe that 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, and the
process for an authorized or an unauthorized petition for release. Id. § 841.061
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(West Supp. 2015), § 841.062 (West 2010), § 841.063 (West Supp. 2015), §
841.064 (West 2010), § 841.065 (West Supp. 2015), §§ 841.101-102 (West Supp.
2015), § 841.103 (West 2010), §§ 841.121-124 (West Supp. 2015).
In Brown’s case, the biennial review process commenced on May 6, 2015,
with the Notice of Biennial Review. Brown had a statutory right to be represented
by SCFO counsel for the biennial review. Id. §§ 841.002(3-a), 841.005(a),
841.102(b). On May 21, 2015, the trial court appointed an attorney from SCFO to
represent Brown for the biennial review. The State served Brown with notice that it
was seeking a modification of the order of civil commitment on August 14, 2015,
while SCFO counsel was representing Brown on the biennial review of the civil
commitment order. The biennial review order was signed on November 9, 2015,
almost three weeks after the trial court signed the amended order of commitment.
Apparently, the parties treated the modification of the civil commitment
requirements as a separate proceeding completely disconnected from the ongoing
biennial review, and SCFO counsel did not attend the hearing on the State’s
motion to amend the civil commitment order.
A hearing conducted under Subchapter E is not included in the definition of
a “civil commitment proceeding” in which SCFO represents an indigent person. Id.
§§ 841.002(3-a), 841.005(a). In addition, Subchapter E includes a provision for
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modifying a civil commitment requirement at any time. See id. § 841.082(e).
Section 40(b) of S.B. 746 required that the trial court modify an existing civil
commitment order to require the person’s participation in the newly created tiered
treatment program. See 2015 Tex. Sess. Law Serv. at 2711. However, one of the
functions of a biennial review is to determine whether a requirement imposed on
the person under Chapter 841 of the Texas Health and Safety Code should be
modified. See Tex. Health & Safety Code Ann. § 841.102(c)(1). Although the
hearing required by section 40(b) of S.B. 746 simply provided notice to Brown that
the commitment order was being modified to conform to the new sex offender
treatment program, the State’s motion and the trial court’s hearing on the motion
concerned modifying a civil commitment requirement. See id. Therefore, the scope
of SCFO counsel’s representation for the biennial review included the
consideration and hearing on the State’s motion to modify the civil commitment
order to require Brown to participate in the tiered treatment program. See id. Under
these particular facts, we conclude that Brown had a statutory right to counsel. See
id. § 841.005(a).
The trial court may have been unaware that SCFO counsel had recently been
appointed for the ongoing biennial review, but it is undisputed that Brown had
appointed counsel on the day of the hearing and that counsel did not participate in
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the hearing that resulted in the amended order of civil commitment. Under these
circumstances, the trial court abused its discretion by denying Brown’s request to
be represented by counsel at the hearing. Brown lacks an adequate appellate
remedy because the interlocutory order is not immediately appealable. See In re
Commitment of Cortez, 405 S.W.3d 929, 931 (Tex. App.—Beaumont 2013, no
pet.).
We are confident that the trial court will vacate its orders of October 21,
2015, and appoint counsel to represent Brown at the hearing on the State’s motion
to place Brown in the tiered treatment program. See Tex. Health & Safety Code
Ann. § 841.005. The writ shall issue only if the trial court fails to comply. All other
relief requested in the mandamus petition is denied.
PETITION CONDITIONALLY GRANTED IN PART.
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STEVE McKEITHEN
Chief Justice
Submitted on May 16, 2016
Opinion Delivered September 1, 2016
Before McKeithen, C.J., Horton and Johnson, JJ.
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DISSENTING OPINION
I join and agree with the majority’s conclusion and discussion rejecting
Brown’s complaint that the SVP statute as amended is unconstitutionally punitive,
and rejecting his complaint regarding retroactivity. See Majority Op. at 2-3.
However, I respectfully disagree with the majority and write this dissenting
opinion because I cannot agree with the majority’s conclusion that “[u]nder these
particular facts . . . Brown had a statutory right to counsel.”
The general rule, as stated by the majority, is that “an indigent litigant does
not have a right to have counsel appointed to represent him in a civil case.” See
Gibson v. Tolbert, 102 S.W.3d 710, 712-13 (Tex. 2003). The Texas Legislature
specifically provided within the SVP statute that:
§ 841.005. Office of State Counsel for Offenders.
(a) Except as provided by Subsection (b), the Office of State
Counsel for Offenders shall represent an indigent person subject to a
civil commitment proceeding under this chapter.
(b) If for any reason the Office of State Counsel for Offenders
is unable to represent an indigent person described by Subsection (a)
at a civil commitment proceeding under this chapter, the court shall
appoint other counsel to represent the indigent person.
Tex. Health & Safety Code Ann. § 841.005 (West 2010). A “civil commitment
proceeding” is defined by statute as “a trial or hearing conducted under Subchapter
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D, F, or G.” See id. § 841.002(3-a) (West Supp. 2015). The tiered program is part
of Subchapter E. See id. §§ 841.083, 841.0834, 841.0831 (West Supp. 2015).
The facts in this case clearly indicate that the trial court held a separate
hearing on the State’s request to place Brown in the tiered program. As noted by
the majority, the parties treated the placement into the tiered program as a separate
matter from the biennial review. Moreover, the trial court also treated the
proceedings separately and held separate hearings as to each matter. The SCFO
attorney represented Brown at the biennial review hearing. In my opinion, the mere
fact that SCFO was appointed by Order dated May 21, 2015, to represent Brown
for the “biennial review,” does not lead to the conclusion that Brown had a
“statutory right to counsel” at the tiered treatment hearing.
As per the SVP statute, SCFO was appointed to represent Brown at the
biennial review hearing. There is no language within the SVP statute that required
the trial court to appoint SCFO or any other attorney to represent Brown at the
tiered treatment hearing. The Legislature expressly did not include Subchapter E
within the definition of a “civil commitment proceeding[.]” Therefore, the trial
court did not abuse its discretion by denying Brown’s request to be represented by
court-appointed counsel at the tiered treatment hearing. The petition for mandamus
should be in all respects denied.
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LEANNE JOHNSON
Justice
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