In re Commitment of Fisher
| Decision Date | 20 May 2005 |
| Docket Number | No. 04-0112.,04-0112. |
| Citation | 164 S.W.3d 637 |
| Parties | In re COMMITMENT OF Michael FISHER. |
| Court | Texas Supreme Court |
Ryan D. Clinton, Asst. Solicitor Gen., Greg Abbott, Atty. Gen., Barry Ross McBee, Edward D. Burbach, and Rafael Edward Cruz, Austin, for State.
Kenneth W. Balusek, Daniel E. Maeso, Nelda F. Williams, State Counsel for Offenders, and Kim B. Vernon, Division Director, Huntsville, for Respondent.
Autumn Lewis, Huntsville, for Amicus Curiae Special Prosecution Unit.
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 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 proceeding 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.
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 (). In so doing, the Legislature found that:
[A] small 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 predators likely to engage in repeated predatory acts of sexual violence. The legislature finds that the existing involuntary commitment provisions of Subtitle C, Title 7, are inadequate to address the risk of repeated predatory behavior that sexually violent predators pose to society. The legislature further finds that treatment modalities for sexually violent predators are different from the traditional 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 violent 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"1 who "suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." Id. § 841.003(a). A "behavioral abnormality" 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." Id. § 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 ("TDCJ") or the Texas Department of Mental Health and Mental Retardation ("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 committed after having been adjudged not guilty by reason of insanity of a sexually violent offense) and who may be a "repeat sexually violent offender." Id. § 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).
Within sixty days of the team's recommendation, the TDCJ or the TDMHMR, 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 TDMHMR concludes that the person suffers from a behavioral abnormality, the department must give notice and corresponding documentation to the state's attorney2 not later than sixty days after receiving the team's recommendation. Id. § 841.023(b).
If an SVP candidate is referred to the state's attorney, the attorney may file, in a Montgomery County3 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 state's 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 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 appointed counsel by the court.4 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 commit the person for outpatient treatment and supervision, to begin on the date of the SVP's release from a correctional 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." Id. § 841.081. Before entering an order directing an SVP's 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 participation in and compliance with a particular course of treatment; requiring the SVP to submit to tracking and refrain from tampering with tracking equipment; prohibiting the SVP from changing residence without prior authorization; and "any other requirements determined necessary by the judge." Id. Violation of one of the commitment requirements 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 manager's authorization, the SVP has the right to file a petition for release.5 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. §§ 253B.185(1)-(7); Mo. Ann. Stat. §§ 632.480-.513; N.J. 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., Outpatient Civil Commitment in Texas for Management and Treatment of Sexually Violent Predators: A Preliminary Report, 47(4) Int'l J. Offender Therapy & Comp. Criminology 396, 397 (2003). By contrast, the Texas Act requires outpatient "commitment," involving intensive treatment and supervision. Id. The Texas Act is also unique in that it imposes criminal penalties for violating the conditions of confinement.6 See Tex. Health & Safety Code § 841.085.
To date, two of our courts of appeals have upheld the Act's constitutionality against various challenges. In re Commitment of Browning, 113 S.W.3d 851, 866 (Tex.App.-Austin 2003, pet. denied); Beasley v. Molett, 95 S.W.3d 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.
On January 20, 1987, Michael James Fisher pleaded guilty to second-degree sexual assault and was sentenced 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....
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