In re COMMITMENT OF James RICHARDS
No. 09-12-00133-CV
Court of Appeals of Texas, Beaumont
Decided March 7, 2013
395 S.W.3d 905
Submitted Jan. 10, 2013.
There are several things to note about this sentence. First, it does not say that anterior only internal fixation could ever meet the standard of care in treating a patient with the conditions existing here. Indeed, the sentence does not explicitly reference anterior internal fixation at all. It is simply a general reference to a hypothetical situation in which “inadequate internal fixation” is, temporarily, the only available option under some presumably extraordinary circumstances. Second, whatever the general references to “clinical situation” and “inadequate internal fixation” mean, the report goes on to specify that the defendant breached the standard of care in this case, as to this patient. This is an implicit statement that, to the best of the expert‘s knowledge, there were no extraordinary circumstances in this case. Third, and perhaps most important, the possible existence of extraordinary circumstances that might—or might not—justify the defendant physician‘s temporary use of anterior only internal fixation is a matter to be fleshed out during discovery and possibly trial, not as part of a gatekeeper effort to deter frivolous lawsuits. This is especially true in light of the fact that the medical records available to the expert in preparing his report may not have reflected whether any such extraordinary circumstances existed at the time of the surgery.1 To require a report to negate possible defenses at this stage of the litigation creates an extra-statutory burden and is un-fair to both the plaintiff and the medical expert.
I believe the expert report in this case constituted a good-faith effort to comply with the definition of an expert report, as required by the applicable statutes and supreme court precedent. Accordingly, I respectfully dissent.
Nancy Byrd Bunin, State Counsel for Offenders, Huntsville, for Appellant.
Melinda Fletcher, Special Prosecution Unit, Amarillo, for Appellee.
Before GAULTNEY, KREGER, and HORTON, JJ.
HOLLIS HORTON, Justice.
In this appeal, we must determine whether we have appellate jurisdiction over a biennial-review order that the trial court entered in James Richards‘s sexually violent predator commitment case. See
Right to Appeal
Because jurisdiction is a threshold issue that we must decide before addressing the merits of the other issues that Richards raises in his appeal, we first address issue six, which asserts we have jurisdiction over this appeal. According to Richards, an appeals court has jurisdiction to review a trial court‘s decision that probable cause does not exist to conduct a trial, which if conducted, would require the State to prove beyond a reasonable doubt that the “person‘s behavioral abnormality has not changed to the extent that the person is no longer likely to engage in a predatory act of sexual violence.” See
Richards was committed as a sexually violent predator in 2003. His continued commitment and sex offender treatment is authorized by the 2003 commitment order, as modified in 2010. His claim that the biennial-review order is the basis on which he is subject to the restrictions about which he complains is wholly misplaced, as the trial court, in the current biennial-review order, did not modify the terms of its prior commitment orders.
After a person is committed under the SVP statute, the trial court retains jurisdiction over the person and subject matter of the individual‘s commitment. See In re Commitment of Davis, 291 S.W.3d 124, 127 (Tex.App.-Beaumont 2009, pet. denied). The trial court is required to review the status of the person who has been committed every two years.
If the court finds the order of commitment should be modified, the parties are entitled to an immediate examination by an expert and an evidentiary hearing on the proposed modifications.
In one of Richards‘s prior appeals, we considered whether appellate jurisdiction existed with respect to certain modifications that occurred following a biennial review. In re Commitment of Richards, 202 S.W.3d 779, 786 (Tex.App.-Beaumont 2006, pet. denied). In 2006, we concluded that the biennial review order did not finally dispose of Richards‘s complaint regarding where he is to reside; as a result, we held that we did not have jurisdiction over the part of his appeal challenging changes to the conditions of his commitment.
However, in this case, Richards seeks to appeal a decision made after the trial court determined whether probable cause existed to believe that his behavioral abnormality had changed to the extent that he was no longer likely to engage in a predatory act of sexual violence, an issue arising under section 841.102(c)(2). See
Initially, the statute makes it clear that further proceedings will occur—a trial—if the trial court, after conducting a biennial review, finds that probable cause exists to believe 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. See
According to the statutes, it appears that the procedure requiring the trial court to make a probable cause determination every two years is not the sole means by which a sexually violent predator might gain release from the terms of an order committing him to treatment as a sexually violent predator. For example, a case manager may authorize the filing of an authorized petition for release if the case manager determines that the person is no longer likely to engage in a predatory act of sexual violence.
Additionally, a person committed under the SVP statute may file an unauthorized petition for release seeking review by the trial court.
Therefore, our review of the provisions governing release under the SVP statute reveals that the biennial-review procedure is not the exclusive means by which a sexually violent predator may gain release from the condition imposed by a commitment order. Additionally, the order at issue did not result from a trial on the merits and the Legislature did not expressly grant a right to appeal at the stage of the proceedings at issue. Finally, the commitment order governing Richards‘s commitment can be challenged by further proceedings that might occur in the trial court.
In a SVP commitment case, the trial court‘s jurisdiction continues while the commitment order remains in effect. See Davis, 291 S.W.3d at 127;
By statute, the procedural rules that apply to SVP cases, unless they conflict with the rules in the SVP statute, are provided by the Texas Rules of Civil Procedure and the Texas Rules of Appellate
In summary, the SVP statute provides several avenues for judicial review where a sexually violent predator has been committed to long-term supervision and treatment. The right of appeal is expressly granted in section 841.062(a) following the original determination of predator status; in addition, the constitutional protections that apply to the initial commitment proceeding attach if the trial court finds probable cause and conducts an adversarial hearing contemplated by section 841.103(c). See
Due Process Concerns
Richards argues that we must exercise appellate jurisdiction because the trial court has deprived him of due process. See generally
APPEAL DISMISSED.
HOLLIS HORTON
Justice