<strong>The</strong> “Stealth” Life SentenceHealth & Safety CodeChapter 841Mike McMillenAssume that you represent a 25-year-old person who has been charged withattempted sexual assault, and that he has a prior conviction for the sameoffense. <strong>For</strong> whatever reason, the D.A. offers your client five years to do. Youadvise him to accept, and he does. About three years later, you receive a callfrom your former (?) client. He wants to know why you did not advise him thateven after he serves his prison time, he could face another big problem gettingback to the free world, because of his two convictions. He then tells you he hasjust been served a petition for something called “civil <strong>com</strong>mitment.”20 VOICE FOR THE DEFENSE October 2009
Origin of the Texas CivilCommitment Statute<strong>The</strong> statute, created to impose involuntary civil <strong>com</strong>mitment,is located in Texas Health & Safety Code Chapter 841: “CivilCommitment of Sexually Violent Predators.” In 1999, the TexasLegislature found that “a small but extremely dangerous groupof sexually violent predators exists [in Texas] and that thosepred a tors have a behavioral abnormality that is not amenable totra di tional mental illness treatment modalities and that makesthe predators likely to engage in repeated predatory acts of sexualviolence.” <strong>The</strong> legislature further found that existing involuntarycivil <strong>com</strong>mitment provisions for mental health treatment werein ade quate to address the unique risk that sexually violent predators pose to the general health and welfare. 1Though graphic, the title of the statute alone may not conveyits broad scope. <strong>For</strong> example, under certain circumstances, a conviction for attempted burglary could be used as an index offenseto classify someone as a sexually violent predator. 2Civil Commitment of Sexually ViolentOffenders Held Constitutional<strong>The</strong> United States Supreme Court and the Texas SupremeCourt have each addressed various constitutional challengesto the Texas and Kansas civil <strong>com</strong>mitment statutes. In Kansasv. Hendricks, the Supreme Court examined a Kansas statuteand found it to be “of a kind” with other civil <strong>com</strong>mitmentstat utes (such as the Texas statute), requiring a finding of futuredan ger ous ness. That finding was linked to the existence of a“men tal abnormality” or “personality disorder” that makes itdif fi cult, if not impossible, for the person to control his or herbehavior. 3 <strong>The</strong> Supreme Court then found the statute’s defi nitionof “mental abnormality” satisfied substantive due pro cessrequirements. Finding the statute to be civil instead of crimi nal,the Court determined it <strong>com</strong>ported with due process re quirements;accordingly, it did not violate double jeopardy principles.4<strong>The</strong> Texas Supreme Court, agreeing with the analysis inHen dricks, held the Texas statute to be constitutional, and notpu ni tive. Further, the Court held due process does not require aRespondent in a civil <strong>com</strong>mitment proceeding to be <strong>com</strong>petentto stand trial. 5Persons Subject to Civil CommitmentAs a practical matter, everyone targeted for civil <strong>com</strong>mit ment isserving time in prison when first considered. <strong>The</strong> Texas De partmentof Criminal Justice (TDCJ) notifies a mul ti dis ci plin aryteam of an offender’s approaching release date. 6 Within 60 daysof the notification, the team must: 1) assess whether the personis a repeat sexually violent offender and whether the personis likely to <strong>com</strong>mit a sexually violent offense after release; 2)give no tice of the assessment to TDCJ; and 3) re<strong>com</strong>mend theas sess ment of the person for a behavioral abnormality, as appropri ate. 7 <strong>The</strong> statute requires an “expert” to make “a clin i calas sess ment based on testing for psychopathy, a clinical interview,and other appropriate assessments and techniques to aidTDCJ in its assessment.” 8 If, as a result of the assessment, TDCJbelieves the person has a behavioral abnormality, TDCJ refersthe case to the attorney representing the state. 9 It is then withinthe dis cre tion of the state whether to initiate civil <strong>com</strong>mitmentpro ceedings.<strong>The</strong> Prima Facie Case<strong>The</strong> statute describes a “sexually violent predator” as a personwho: 1) is a “repeat sexually violent offender” and 2) suffersfrom a “behavioral abnormality” that makes the person likelyto engage in a “predatory act” of sexual violence. 10 Each of thephrases within quotation marks is a legal term of art more fullyde fined in Section 841.002 of the statute. Counsel must reviewthe definitions to determine whether the statute’s provisionsap ply to a specific person’s case, because the provisions of thestat ute are wide-ranging.<strong>The</strong> statute provides: “the attorney representing the state. . . may file, in a Montgomery County district court, other thana family law district court, a petition alleging the person is asex ually violent predator and stating facts sufficient to supportthe allegation.” 11 <strong>The</strong>re are no alternate venue provisions in thestat ute, nor any apparent reason for venue being in MontgomeryCounty. Either side is entitled to a trial by jury on the merits.At the trial of a contested civil <strong>com</strong>mitment proceeding,the State (“Petitioner”) is represented by the Civil Division ofthe Special Prosecution Unit. <strong>The</strong> Respondent, if indigent, isusu ally represented by the State Counsel for Offenders.During its case in chief, the state introduces the Respondent’spen packets into evidence to prove that he has more than onecon vic tion for a sexually violent offense (element number 1). <strong>The</strong>state usually calls the Respondent. <strong>The</strong> Respondent does not havea right to invoke the privilege against self-incrimination, unlesshis answer could subject him to prosecution for an unadjudicatedof fense. <strong>The</strong> remainder of the state’s evidence is usually presentedby two expert witnesses, a forensic psychiatrist and a forensicpsy chol o gist, who have examined, tested and/or diagnosed theRe spondent. 12 Usually over objection from Respondent’s counsel,the Court allows these experts to testify from hearsay, suchas police reports and prison records; if requested, the courtOctober 2009 VOICE FOR THE DEFENSE 21
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