In re Commitment of Richards

Decision Date22 June 2006
Docket NumberNo. 09,09
CourtTexas Court of Appeals
PartiesIN RE COMMITMENT OF JAMES RICKY RICHARDS AND EX PARTE JAMES RICKY RICHARDS.

Before GAULTNEY, KREGER, and HORTON, JJ.

OPINION

HOLLIS HORTON, Justice.

In 2003, the trial court ordered the civil commitment of appellant James Ricky Richards after the jury found him to be a sexually violent predator ("SVP"). See Tex. Health & Safety Code Ann. §§ 841.001-841.150 (Vernon 2003 & Supp. 2006). In its order, the court committed Richards to outpatient treatment to be coordinated by a case manager and ordered that Richards participate in a course of treatment to be determined by the Interagency Council on Sex Offender Treatment ("Council"). Richards appealed from the Final Judgment and Commitment Order, and we affirmed. In re Commitment of Richards, No. 09-03-168 CV, slip op. at 2, 2004 WL 256744 (Tex. App.-Beaumont, Feb. 12, 2004, no pet.). Subsequently, Richards filed an application for writ of habeas corpus attacking certain terms of his treatment plan. He now appeals from the trial court's denial of his application seeking relief through a writ of habeas corpus.

In addition, and on the same date it heard Richards's writ application, the trial court held a biennial review hearing as required by the Health and Safety Code. See Tex. Health & Safety Code Ann. § 841.102 (Vernon 2003). Richards also filed a notice of appeal from the trial court's modification of his commitment terms following his biennial review. We consolidated both matters for purposes of appeal.

In his habeas corpus application, Richards challenged his placement at the Ben Reid Facility and certain restrictions on his liberty under his treatment plan. With respect to the treatment plan, Richards complains of the terms that: (1) interfere with his employment; (2) permit his case manager or the facility to review his mail; (3) restrict his ability to use public transportation; (4) restrict his ability to have contact with persons unapproved by his case manager; and (5) require any prospective sexual partner to have a meeting with his case manager before having sexual contact with him.

In his appeal from the court's biennial review order, Richards asserts that amendments to Chapter 841 do not apply to him because he was not "serving a sentence in the Texas Department of Criminal Justice" when the Legislature amended the statute. Therefore, he asserts that the trial court erred in changing his commitment terms by ordering that he reside at a halfway house.

As to each appeal, we requested briefing from both parties regarding whether we have appellate jurisdiction to review the trial court's orders. Both the State and Richards responded to our jurisdictional inquiry. With respect to our jurisdiction over the appeal from a denial of a writ of habeas corpus, the parties disagree about whether we have jurisdiction. With respect to our jurisdiction over an appeal from a biennial review order, both parties contend that we have jurisdiction. However, neither the State nor Richards cite to statutory provisions that authorize an appeals court to exercise jurisdiction over an appeal of a biennial review order. Richards argues in his brief that he "cannot locate any statute which prevents this court from exercising its appellate jurisdiction."

Assumption of appellate jurisdiction over an interlocutory order when not expressly authorized by statute or rule is jurisdictional fundamental error, which results in dismissal of the appeal.N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990) (per curiam) (citing Long v. Humble Oil & Refining Co., 380 S.W.2d 554 (Tex. 1964); McCauley v. Consol. Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957)). We are required to review such error even if no party asserts it. Id.; see M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004)

. Therefore, before addressing the merits of Richards's complaints, we address our jurisdiction over each of his appeals.

JURISDICTION OVER APPEAL — BIENNIAL REVIEW ORDER

On appeal, Richards asserts that the trial court relied on amendments to the SVP statute in ordering that he reside in a halfway house. Richards complains that the trial court interpreted amendments to the statute to apply to him when he contends they do not. We first address our jurisdiction over his appeal of the trial court's biennial review order.

The Texas Constitution grants jurisdiction to courts of appeals over "all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law." Tex. Const. art. V, § 6. With respect to Chapter 841 proceedings, the district court retains jurisdiction over commitment reviews and petitions for release. Tex. Health & Safety Code Ann. § 841.082(d) (Vernon Supp. 2006). Thus, the district court had jurisdiction over the biennial review proceeding.

Based on article V, section 6 of the Texas Constitution, we have jurisdiction over the appeal unless restricted by law. The Legislature has restricted our appellate jurisdiction over civil cases. In civil cases, absent a statute providing otherwise, our appellate jurisdiction is limited to those cases in which the amount in controversy exceeds one hundred dollars, exclusive of interest and costs, and in which the judgment is final. See Tex. Gov't Code Ann. § 22.220(a) (Vernon 2004); Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (Vernon 1997); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (generally, appeal in a civil case may only be taken from a final judgment). With respect to orders that are not considered final, "[i]nterlocutory orders may be appealed only if permitted by statute." Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding). The Legislature has not included biennial review orders among the types of interlocutory orders over which we have jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 2006).

Therefore, because generally a judgment in a civil case must be final before an appellate court exercises jurisdiction over it, we further consider whether the portion of a biennial review order modifying Richards's commitment requirements is "final." The Texas Supreme Court recently reiterated that "' the term final, as applied to judgments, has more than one meaning.'" Sultan v. Mathew, 178 S.W.3d 747, 751 (Tex. 2005) (quoting Street v. Honorable Second Court of Appeals, 756 S.W.2d 299, 301 (Tex. 1988)). The Supreme Court explained:

The term 'final judgment' applies differently in different contexts. A judgment is 'final' for purposes of appellate jurisdiction if it disposes of all issues and parties in a case. The term ' final judgment' is also used with reference to the time when trial or appellate court power to alter the judgment ends, or when the judgment becomes operative for the purpose of res judicata.

Id.

To evaluate whether a biennial review order is "final," we examine the purposes of the biennial review. The issues before the court in a biennial review are whether the requirements imposed on a person under Chapter 841 should be modified; or, whether probable cause exists to believe that a 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. See Tex. Health & Safety Code Ann. § 841.102 (Vernon 2003). Richards questions the trial court's power to alter its prior commitment order, which required that he reside in Harris County, to expressly require that he now reside in a halfway house in Harris County. At the hearing, Richards testified that the proposed change to the commitment order would require him to leave his apartment. On appeal, Richards does not complain of the trial court's finding that there had been no significant change regarding his SVP status.

Therefore, the issue before us is whether we have appellate jurisdiction to review the trial court's order modifying its residency requirement imposed on Richards. Id. § 841.102(c)(1). We do not address whether we have appellate jurisdiction over a trial court's probable cause decisions made under section 841.102(c)(2) as Richards's appeal presents no issue under that section of Chapter 841. See Id. § 841.102(c)(2).

The Health and Safety Code requires the trial court to restrict an SVP's liberty to select his residence. Id. § 841.082 (Vernon Supp. 2006). The current statute provides that a court, among other requirements, shall require a committed "person to reside in a Texas residential facility under contract with the [Council on Sex Offender Treatment] or at another location or facility approved by the council." Id. At the time the court entered its final judgment and order committing Richards, the statute mandated that the trial court require a committed person "to reside in a particular location." Act of May 30, 1999, 76th Leg., R.S., ch. 1188 § 4.01, sec. 841.082(a)(1), 1999 Tex. Gen. Laws 4147 (amended 2005) (current version at Tex. Health & Safety Code Ann. § 841.082(e) (Vernon Supp. 2006)). Thus, both versions of the statute at issue contemplated that the trial judge would have power over where a SVP could reside.

In addition, section 841.082(e) states that "[t]he requirements imposed under Subsection (a) may be modified at any time after notice to each affected party to the proceedings and a hearing." Tex. Health & Safety Code Ann. § 841.082(e) (Vernon Supp. 2006). This provision is consistent with the general rule that a trial court retains plenary power over its interlocutory orders until a final judgment is entered. Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993). With this power, a trial court can exercise its authority to change or modify an interlocutory order at any time prior to expiration of its plenary power. Mendez v. San...

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