In re Commitment of Browning

• Decision Date: 14 August 2003
• Docket Number: No. 03-02-00661-CV.,03-02-00661-CV.
• Citation: 113 S.W.3d 851
• Parties: In re the COMMITMENT OF William P. BROWNING.
• Court: Texas Court of Appeals

113 S.W.3d 851

In re the COMMITMENT OF William P. BROWNING.

No. 03-02-00661-CV.

Court of Appeals of Texas, Austin.

August 14, 2003.

From the District Court of Travis County,¹ 250th Judicial District, No. 010805024-CV;

John K. Dietz, Judge Presiding.

Ken W. Balusek, State Counsel for Offenders, Civil Commitment Services, Huntsville, for appellant.

Autumn Lewis, Special Prosecution Unit, Huntsville, for appellee.

Before Chief Justice LAW, Justices B.A. SMITH and PURYEAR.

OPINION

BEA ANN SMITH, Justice.

William P. Browning was civilly committed as a sexually violent predator pursuant to title 11, chapter 841 of the health and safety code. See Tex. Health & Safety Code Ann. §§ 841.001-147 (West 2003). A jury found that Browning suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The trial court entered a final judgment and order of civil commitment. Browning appeals, claiming the commitment proceedings established by the statute are punitive rather than civil in nature. He reasons that his commitment is therefore invalid because he was denied several constitutional safeguards attendant to a criminal prosecution. Because we find the statute to be civil in nature, we affirm the district court's final judgment and order of civil commitment.

BACKGROUND

The Civil Commitment Statute

In 1999, the legislature amended the health and safety code and enacted chapter 841—a statutory scheme for the civil commitment of sexually violent predators. Act of May 30, 1999, 76th Leg., R.S., ch. 1188, § 4.01, 1999 Tex. Gen. Laws 4122, 4143-52 (codified at Tex. Health & Safety Code Ann. §§ 841.001-.147). The first section of chapter 841—entitled Legislative Findings—states:

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. 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 Ann. § 841.001. The remainder of chapter 841 sets out, in detail, a civil-commitment procedure for sexually violent predators. See generally id. §§ 841.002-.147.

A sexually violent predator is defined as a person who both (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. Id. § 841.003(a). A repeat sexually violent offender is, in turn, defined as a person convicted, or found not guilty by reason of insanity, of more than one sexually violent offense.² A behavioral abnormality is defined as "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).

Before the release or discharge of a person who either (1) is serving a sentence for a sexually violent offense or (2) has been committed after having been adjudged not guilty of a sexually violent offense by reason of insanity, his records are forwarded to a multidisciplinary team³ which is to:

• determine whether the person is a repeat sexually violent offender and whether the person is likely to commit a sexually violent offense after release or discharge;

• give notice of that determination to the department of criminal justice or the department of mental health and mental retardation, as appropriate; and

• recommend the assessment of the person for a behavioral abnormality, as appropriate.

See id. §§ 841.021-.022. After the multidisciplinary team gives its notice and recommendation to either the department of criminal justice or the department of mental health and mental retardation, that department must "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).

To "aid in the determination," the department is required to have an expert examine the person and "make a clinical assessment based on testing for psychopathy, a clinical interview, and other appropriate assessments and techniques." Id. If the department determines that the person suffers from such a behavioral abnormality, it is to inform an attorney in the state's prison prosecution unit,⁴ who then has the option to file a petition and initiate a trial. See id. §§ 841.023(b), .041. Once a petition is filed, both the person and the state are entitled to an immediate examination of the person by an expert. See id. § 841.061(c).

If the state's attorney initiates a trial, she is required to prove beyond a reasonable doubt that the person is a sexually violent predator. Id. § 841.062(a). The person is afforded several additional procedural rights during trial as well, such as the right to be represented by an attorney from the office of state counsel for offenders, to demand a jury trial, to appear at trial and present evidence, to cross-examine witnesses, and to view and copy all petitions and reports in the court file. See id. § 841.005, .061. If a person demands a jury trial, he can be committed only on a unanimous verdict. See id. § 841.062(b).

If the trial results in a determination that the person is a sexually violent predator, the judge is required to "commit the person for outpatient treatment and supervision to be coordinated by [a] case manager,"⁵ and impose on the person certain "requirements necessary to ensure the person's compliance with treatment and supervision and to protect the community." See id. §§ 841.081-.082. Such requirements include among other things:

• requiring the person to reside in a particular location;

• prohibiting the person's contact with the victim or any potential victim;

• prohibiting the person's use of alcohol or a controlled substance;

• requiring the person's participation in a specific course of treatment;

• requiring the person to submit to tracking [i.e., electronic monitoring or other technological service designed to track a person's location];

• prohibiting the person from changing his residence or leaving the state without prior authorization by the judge; and

• any other requirements determined necessary by the judge.

See id. § 841.082. The statute makes violation of any of these imposed requirements a criminal offense. See id. § 841.085.

The Trial

Browning was convicted of the aggravated sexual assault of two children and the aggravated kidnaping of another. He was sentenced to twelve years' imprisonment for these crimes. Prior to his release from prison, the state sought to have him civilly committed as a sexually violent predator.

Before trial, the state invoked its right to have Browning investigated by an expert. After interviewing Browning and conducting clinical tests, Dr. Rahn Baily— the psychiatrist ordered by the court to examine Browning—concluded that Browning has a behavioral abnormality that makes him likely to engage in predatory acts of sexual violence.

The state also called Dr. Charles Woodrick, a correctional psychologist under contract with the department of criminal justice, who examined Browning to aid the department in making its determination of whether Browning's case should be forwarded to the state's attorney, i.e., whether, in the opinion of the department, Browning suffered from the requisite behavioral abnormality. Dr. Woodrick testified that, based on his interview with Browning and his review of the department's files, he diagnosed Browning with pedophilia, which he described as a behavioral abnormality. He also testified that Browning was at a high risk for reoffending.

After deliberating, the jury returned a verdict finding that Browning is a sexually violent predator. The court then entered judgment on the verdict and ordered that Browning be "committed for outpatient treatment and supervision to be coordinated by a case manager...." The court's judgment also imposes a series of "commitment requirements," ordering among other things that Browning shall reside in Travis County, refrain from changing his residence without prior court authorization, refrain from using alcohol or other controlled substances, participate in a specific course of treatment to be determined by the interagency council on sex offender treatment, and submit to tracking by a GPS electronic monitor.

On appeal, Browning urges that the civil-commitment proceedings established by statute are punitive and criminal, rather than civil in nature. He therefore reasons that he should have been accorded the constitutional safeguards attendant to a criminal prosecution, including the protections against double jeopardy, ex post facto laws, and self incrimination under the federal constitution. He also argues that the statute and the court's final order are unconstitutionally vague, that the statute violates the separation of powers, and that the court erred in admitting evidence of his prior convictions after he stipulated to them.

DISCUSSION

Nature of the Proceeding

We initially note that the United States Supreme Court has found a very similar Kansas statute to be civil in nature and that the Beaumont court of appeals has found the Texas statute...