In re COMMITMENT OF Carlos CORTEZ.
No. 09-12-00385-CV.
Court of Appeals of Texas, Beaumont.
Submitted May 28, 2013. Decided June 27, 2013.
407 S.W.3d 929
Anthony G. Brocato Jr., Asst. Atty. Gen., Austin, for Appellee.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
DAVID GAULTNEY, Justice.
In this appeal concerning the modification of the residency requirement for a sexually violent predator, this Court lacks appellate jurisdiction because the order in question is not a final order. In response to an inquiry from this Cоurt, appellant asks that in the event the Court decides that one or more of the issues raised in appellant‘s brief may not be reviewed on appeal due to a lack of appellate jurisdiction, this Court alternatively consider the brief of appellant as a request for mandamus relief. A certification pursuant to
This is the first of many related cases filed in which the parties have fully briefed the substantive issues. Rather than require refiling and rebriefing as an original proceeding, we address the matters presented in the briefs in this case as essentially requesting mandamus relief. After a review of the issues and the record presented, however, we conclude we need not issue a writ of mandamus. We dismiss the appeal for lack of jurisdiсtion.
BACKGROUND
Carlos Cortez was civilly committed as a sexually violent predator on March 26, 2001. The trial court reviews the commitment order on a biennial basis and has modified the terms of commitment several times since 2001. The original judgment required that Cortez reside at a particular address in El Paso. The commitment requirements were amended to allow Cortez to reside anywhere in El Paso County. In 2008, Cortez was convicted of violating a commitment requirement and returned to prison. While Cortez was incarcerated, the trial court amended the commitment requirement to state that “[Cortez] shall reside in El Paso County, Texas when released from prison.” The same order specified that Cortez must live in a halfway house unless otherwise approved by the Counсil on Sex Offender Treatment (CSOT). In 2010, the trial court modified the requirement to state that “Cortez shall reside in a Texas residential facility under contract with the Council on Sex Offender Treatment (Council) or at another location or facility approved by the Council.”
At the time of the proceedings at issue here, Cortez was incarcerated with a projected release date of December 13, 2012. The Office of Violent Sex Offender Management (OVSOM),1 as the governmental entity responsible for Cortez‘s sex offender treatment, requested that the terms of commitment be modified and requested a hearing. Cortez filed a written objection and requested that the earlier modification also be set aside. In a separate motion jointly filed with forty-five persons who are currently serving prison sentences for convictions obtained while under SVP commitment, Cortez alleged that insufficient treatment resulting from underfunding the program ensured no person committed would ever be released, and suggested committed persons were being prosecuted to make space for newly committed men. The motion sought to obtain sex offender treatment for committed persons while they are serving sentences in prison, or in the alternative to end the orders of com
On July 26, 2012, Cortez and the others were physically present in court but they were not allowed to consult with counsel or testify during their appearance. The trial court signed an order that changed the residency requirement to state that “The Respondent, Carlos Cortez shall reside in a Texas residential facility under contract with the Office of Violent Sex Offender Management (OVSOM) or at another location or facility approved by the OVSOM.”
Cortez and the others filed a joint motion for rehearing. They requested a hearing at which they could be heard, present evidence, call and cross-examine witnesses, and consult with counsel. The trial court did not grant a rehearing, and Cortez filed a notice of appeal.
JURISDICTION
Because the assumption of appellate jurisdiction over an interlocutory order not expressly authorized by statute is fundamental error, we must address jurisdictional issues even though neither party challenges jurisdiction. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678-79 (Tex.1990). “In the absence of a special statute making an interlocutory order appealable, a judgment must dispose of all issues and parties in the case, including those presented by counterclaim or cross action, to be final and appealable.” Id.
An order that neither disposes of all issues and parties before the court nor follows a conventional trial on the merits is interlocutory unless it is made final through severance, or states with unmistakable clarity that it is a final judgment as to all claims and all parties. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex.2001). In SVP commitment cases, the trial court retains jurisdiction while the commitment order remains in effect. In re Commitment of Richards, 395 S.W.3d 905, 909 (Tex.App.-Beaumont 2013, pet. denied); see also
MANDAMUS
An interlocutory order may be reviewed by mandamus under appropriate circumstances. See CMH Homes v. Perez, 340 S.W.3d 444, 452-53 (Tex.2011). “Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, allоw the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex.2004). Because judicial effi
DUE PROCESS
Cortez asserts due process and statutory violations in his first two issues. The trial court may modify the SVP commitment requirements “at any time after notice to each affected party to the proceedings and a hearing.”
Cortez also argues the trial court deprived him of the hearing to which he was entitled by statute.
The trial court modified the SVP orders affecting forty-six persons at the same time. In an effort to maintain control in an appеarance attended by incarcerated sex offenders, the trial court decided that the joint motion to modify the orders of commitment would be taken up by submission after the appearances and considered in each case individually. The trial court considered the objections to any modification of the residency requirement by submission, and gave the movаnts fourteen days to provide additional submissions. The trial court announced that, due to the security risk, counsel would not be allowed to meet with her clients before the appearances commenced. The trial court administered the oath to the participants as a group, called each person individually, asked if he had taken the oath, and then informed him that the order was being signed in open court.
At one point, after Cortez‘s order had been signed, counsel stood to make an objection. She was ordered to sit down. When she stated she had an objection to make, the trial judge stated that she would have an opportunity to make a motion in writing.
The proceeding conducted in the courtroom on July 26, 2012 cannot be considered a hearing. Cortez was not provided an opportunity to be heard through counsel at the appearance. But “[u]nless required by the express language or the context of the particular rule, . . . the term ‘hearing’ does not necessarily contemplate either a personal appearance before the court or an oral presentation to the court.”
Cortez contends the trial court‘s action deprives him of a liberty interest, but his right to control the location of his residence was lost when he was committed, and the order at issue here simply transferred a previously delegated function to a newly creаted entity. See generally Davidson v. Cannon, 474 U.S. 344, 348 (1986) (The Fourteenth Amendment does not require a remedy when there has been no deprivation of a protected interest.). “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269-70 (1970). But whether the trial court could modify the commitment оrder to require Cortez to reside at a facility approved by OVSOM was an issue of law. The right to be heard in a meaningful manner does not in every instance require oral argument or an evidentiary hearing when only issues of law are raised. See FCC v. WJR, 337 U.S. 265, 276 (1949). The residency modification was an administrative matter brought to the attention of the trial court by the treating entity, not the Special Prosecution Unit. In these unique circumstances, given the limited administrative purpose of the modification to conform to changes made by the Legislature, the opportunity to be heard only through written submission did not violate the statute or due process.
Cortez sought affirmative relief—in the form of an order that OVSOM provide sex offender treatment during a committed person‘s inсarceration or a termination of the SVP commitment—but that was not the purpose for his appearance in court. Furthermore, certain provisions imposed by the SVP statute are suspended for the duration of any confinement of the committed person. See
At the appearance at which counsel was present, the trial court should not have prohibited counsel from making an objection. The trial court possesses inherent power “to require that proceedings be conducted with dignity and in an orderly and expeditious manner and control the proceedings so that justice is done.”
The Rulеs do provide a procedure to “complain on appeal about a matter that would not otherwise appear in the record. . . .” See, e.g.,
OUTPATIENT TREATMENT
Cortez contends that because his residency requirement has been modified, his civil commitment no longer qualifies as an outpatient treatment program. He argues the Texas Supreme Court found the SVP statute was constitutional because persons committed under the statute remained free from confinement. Sеe In re Commitment of Fisher, 164 S.W.3d 637, 648 (Tex.2005). Cortez argues that because he must live in a facility approved by OVSOM he is not free from confinement. But Cortez expressly disavowed a constitutional challenge to the statute in his filing with the trial court. We decline to find an abuse of discretion on an issue the trial court was told was not before the court.
STATUTORY AMENDMENTS
Cortez contends the trial court abused its discretion in ordering him to “reside in a Texas residential facility under contract with the Office of Violent Sex Offender Management (OVSOM) or at another location or facility approved by the OVSOM.” Cortez contends (1) he had a vested interest in the commitment requirements contained in the original commitment order and (2) the 2005 amendments to the SVP statute do not apply to him.
The judgment places Cortez into а long-term sex offender treatment program. The judgment of commitment was made on stipulated facts and contains waivers of Cortez‘s right to file a motion for new trial and notice of appeal, but it does not purport to give Cortez the right to terminate his sex offender treatment if the trial court modifies the terms of commitment following a period of incarceration for violating the commitment order. To support his argument that he retained the right to live at a specific address in El Paso, Cortez relies on a commitment requirement that “[t]his Order committing Respondent will remain binding upon him following any release from any subsequent incarceration.” That requirement does nothing more than provide that Cortez will continue to be subject to the ordеr of commitment. Cortez has not shown that he had a vested right to always reside at the address stated in the commitment order.
At the time of the original commitment order, the SVP statute provided that the trial court “shall impose on the person requirements necessary to ensure the person‘s compliance with treatment and supervision and to protect the community.” Act of May 30, 1999, 76th Leg., R.S., ch. 1188 § 4.01, sec. 841.082(a), 1999 Tex. Gen. Laws 4147 (amended 2003, 2005, 2007, 2011) (current version at
We conclude the 1999 SVP statute permitted the trial court to order a committed person to reside in a particular place and allowed the commitment requirements to be modified. The 2003 amendments to the SVP statute apply to persons committed before the effective date of the amendment аnd give the trial court the authority to modify the commitment requirements. Accordingly, the trial court could in its discretion order Cortez to live in an CSOT-approved facility. The law in effect for pre-existing orders gave the trial court the discretion to modify the residency requirement to accomplish what became required under the 2005 amendment to the SVP statute. See Act of May 23, 2005, 79th Leg., R.S., ch. 849 § 3, sec. 841.082(a)(1), 2005 Tex. Gen. Laws 2891 (amended 2007, 2011) (current version at
SPECIFIC PERFORMANCE
The requirements in the commitment order issued pursuant to a judgment entered on stipulated facts. Cortez contends the State breached its agreement when OVSOM requested a modification of the commitment order. But the statute authorizes modifications. Furthermore, Cortez has been convicted of violating the SVP order; even if we somehow accepted his “breach of agreement” argument, which we do not, he could not seek specific performance.
CONCLUSION
We lack appellate jurisdiction, and Cortez‘s complaints do not warrant mandamus relief. The appeal is dismissed.
DISMISSED.