In re State, 556 S.W.3d 821

Background

Clarence Brown was civilly committed in 2010 as a sexually violent predator (SVP) under Texas Health & Safety Code ch. 841 and ordered to outpatient treatment with restrictive supervision conditions.
The Legislature amended the Act in 2015 to replace mandatory outpatient treatment with a tiered treatment program that can include more restrictive inpatient "total confinement" tiers and change related procedures.
The 2015 amendments require courts, after notice and a hearing, to modify pre-2015 commitment orders that conflict with the updated statutory requirements.
The State moved to amend Brown’s civil-commitment order to conform it to the 2015 Act; Brown requested appointed counsel for that proceeding, which the trial court denied, then granted the State’s motion and entered an amended order.
Brown sought mandamus relief from the court of appeals asserting entitlement to counsel (due process and statutory arguments) and other constitutional challenges; the court of appeals granted relief, ordering appointment of counsel.
The Texas Supreme Court granted mandamus review, held the court of appeals abused its discretion, and conditionally granted the State’s petition—holding Brown had no statutory right to appointed counsel for the Subchapter E modification and that due process did not require appointed counsel in these circumstances.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Brown had a statutory right to appointed counsel for the hearing to modify his commitment order under Subchapter E	Brown argued the Act requires appointed counsel because his order implicated modification of commitment terms and he had counsel in a contemporaneous biennial review	State argued the statutory right to appointed counsel is limited to Subchapters D, F, and G and does not extend to Subchapter E modification proceedings	Held: No statutory right. The Act’s counsel mandate does not include Subchapter E; concomitant timing with a Subchapter F review does not import that right into a separate Subchapter E proceeding.
Whether due process required appointment of counsel for the State’s motion to amend the commitment order	Brown claimed the move from outpatient to a tiered program with possible inpatient confinement implicated a significant liberty interest requiring counsel	State argued Brown received notice and a hearing, had prior counsel for his original commitment, and the State has strong interests and cost burdens against appointing counsel	Held: Due process did not require appointed counsel here. Applying Mathews factors, notice and hearing were sufficient; risk of erroneous deprivation and Brown’s circumstances did not compel appointed counsel.
Whether the court of appeals could grant mandamus on a ground not relied on by the trial court	Brown sought relief on due process grounds; court of appeals relied on a statutory-read-through from Subchapter F	State argued the court of appeals abused discretion by granting relief on an unpresented statutory theory	Held: The Supreme Court assumed arguendo the statutory ground was presented but concluded the court of appeals nevertheless abused its discretion in applying that statutory theory.
Whether the 2015 amendments are per se punitive/retroactive so as to require different relief here	Brown raised constitutional challenges to the amended Act (punitive/retroactive)	State maintained amendments are lawful and procedural for conforming orders	Held: Court declined to decide broader constitutional challenges to the amendments; it upheld only the narrow holdings about counsel.

Key Cases Cited

Vitek v. Jones, 445 U.S. 480 (1980) (due process requires notice, hearing, independent decisionmaker and qualified assistance in involuntary transfer/commitment contexts)
Meza v. Livingston, 607 F.3d 392 (5th Cir. 2010) (applies Mathews balancing to parolee’s liberty interests and procedural protections for sex-offender conditions)
Mathews v. Eldridge, 424 U.S. 319 (1976) (three-factor test for what process is due)
Morrissey v. Brewer, 408 U.S. 471 (1972) (due process for revocation-style proceedings is flexible and fact-dependent)
In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005) (describing scope of liberty intrusion under Texas SVP outpatient commitment scheme)
Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105 (Tex. 1985) (standard for reviewing courts of appeals’ mandamus issuance)
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985) (mandamus review focuses on the trial court’s order)
Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011) (courts may not read requirements into statutes that the legislature did not enact)
In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379 (Tex. 2005) (standard for abuse of discretion where a court fails to correctly analyze or apply law)