In Re Commitment of Michael Marks v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-24-00277-CV
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IN RE COMMITMENT OF MICHAEL MARKS

________________________________________________________________________

On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 05-08-06849-CV
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MEMORANDUM OPINION

Appellant Michael Marks (“Marks” or “Appellant”), a civilly committed

sexually violent predator (“SVP”), sued Marsha McLane (“McLane” or “Appellee”)

in her official capacity as the Executive Director of the Texas Civil Commitment

Office. See Tex. Health & Safety Code Ann. §§ 841.001-.209 (the SVP statute).

Marks challenges the constitutionality of being required to wear an ankle monitor

while confined to the Texas Civil Commitment Center (“TCCC”). See id. §

841.082(a)(4)(A). The trial court dismissed Marks’s case, and this appeal followed.

We affirm.

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BACKGROUND

Marks was adjudged a sexually violent predator and civilly committed in

2006. We affirmed his commitment.1 Marks later appealed but then dismissed a

different case pertaining to his civil commitment.2 The subject matter and

proceedings of that case are not included in the record of this case.

Although Marks’s initial commitment order required him to live in Dallas

County, the 2015 amendments to the SVP statute required Marks to live at the TCCC

and participate in a tiered treatment program. See id. § 841.082(a)(1). Marks, like

many other civilly committed SVPs, is subject to GPS monitoring. See id. §

841.082(a)(4). The applicable statutory sections read:

(a) Before entering an order directing a person’s civil commitment, the
judge shall impose on the person requirements necessary to ensure
the person’s compliance with treatment and supervision and to
protect the community. The requirements shall include:

(1) requiring the person to reside where instructed by the office;
...
(3) requiring the person’s participation in and compliance with the
sex offender treatment program provided by the office and
compliance with all written requirements imposed by the office;

(4) requiring the person to submit to appropriate supervision and:

(A) submit to tracking under a particular type of tracking service,
if the person:

1
In re Commitment of Marks, 230 S.W.3d 241, 243 (Tex. App.—Beaumont
2007, no pet.).
2
In re Commitment of Marks, No. 09-12-00422-CV, 2013 Tex. App. LEXIS
2696, at *1 (Tex. App.—Beaumont Mar. 14, 2013, no pet.) (mem. op.).
2
(i) while residing at a civil commitment center, leaves the
center for any reason;

(ii) is in one of the two most restrictive tiers of treatment, as
determined by the office;

(iii) is on disciplinary status, as determined by the office; or

(iv) resides in the community; and

(B) if required to submit to tracking under Paragraph (A), refrain
from tampering with, altering, modifying, obstructing,
removing, or manipulating the tracking equipment[.]

Id. § 841.082(a)(1), (3), (4).

The Texas Civil Commitment Offices’ (TCCO) policy adopts the

statutory terms, stating, in pertinent part:

...

II. Clients Required to Submit to GPS Tracking

Clients shall submit to GPS tracking when they:

...

B. Are assigned to one of the two most restrictive tiers of treatment,
which includes Tier 1 and Tier 2-1 (Initial Placement or Incident
Report). Tier 2-1 is defined as a client in the first six (6) months of Tier
2, or a Tier 2 client with an incident report sustained at a Behavioral
Management Review (BMR).

C. Have not yet been assigned to a tier;

D. Arrive at the TCCC from a correctional facility, state hospital, state
supported living center or community commitment, and continuing for
at least six (6) months regardless of tier;

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E. Are program non-compliant as determined by the Texas Civil
Commitment Office (TCCO) Management Staff which may include,
but is not limited to, the following:

1. Receipt of an incident report that was sustained at a BMR,
within the last 6 months;

2. Placed in the Secure Management Unit (SMU) due to
behavioral issues;

3. Delinquent in cost recovery and does not have an established,
approved payment plan;

4. A client who has been reduced from Tier Five;

5. A client on package restriction;

6. A client who has privileges suspended or revoked;

7. A client with pending criminal charges or currently under
investigation for a criminal offense;

8. Program non-compliance, to include but is not limited to rule
violations or refusing to participate in treatment or additional
required programming; or

9. Is considered a flight risk.

The policy then details the steps to take when determining whether GPS

removal is appropriate.

In his May 8, 2023 pleading, Marks sought a declaratory judgment that the

statute requiring GPS monitoring was unconstitutional, since GPS monitoring is “not

the least amount of restraint necessary to effectuate the State’s compelling interest

for the safety of the community.” Marks further equated a GPS monitor to a ball and

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chain. Marks did, however, acknowledge that at the time he filed his petition, he had

been in Tier Two for roughly eleven months, but that his GPS monitor had not yet

been removed because he “received a disciplinary action, and allegedly failed a

polygraph.” In June 2023, Marks sought habeas corpus relief in the committing

court, alleging he had been “illegally restrained of his liberty through the

unconstitutional use of a GPS leg-monitor tracking device[.]”

McLane answered with a general denial and a Motion to Dismiss, which

includes a Plea to the Jurisdiction. McLane’s Plea to the Jurisdiction relies on the

doctrines of sovereign immunity, official immunity, collateral estoppel, res judicata,

and Marks’s alleged failures to exhaust administrative remedies and failure to state

a claim upon which relief could be granted. The trial court “heard Respondent’s

Original Answer and Motion to Dismiss (the ‘Plea to the Jurisdiction’), and duly

considered all relevant filings, arguments, and evidence of the parties and their

respective counsel[,]” and granted McLane’s Motion to Dismiss, ordering “that

Respondent’s Motion to Dismiss is granted[,]” and further ordering “that Petitioner’s

claims are dismissed as frivolous and malicious and with prejudice.”

STANDARD OF REVIEW AND ANALYSIS

Subject-matter jurisdiction is essential to a court’s power to decide a case and

is never presumed or waived. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

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S.W.2d 440, 443–44 (Tex. 1993). We review a jurisdictional challenge de novo. See

City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010).

“A plea to the jurisdiction is a dilatory plea, the purpose of which is generally

to defeat an action ‘without regard to whether the claims asserted have merit.’”

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012)

(quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)).

“Typically, the plea challenges whether the plaintiff has alleged facts that

affirmatively demonstrate the court’s jurisdiction to hear the case.” Id. “However, a

plea to the jurisdiction can also properly challenge the existence of those very

jurisdictional facts[,]” and “the court can consider evidence as necessary to resolve

any dispute over those facts, even if that evidence ‘implicates both the subject-matter

jurisdiction of the court and the merits of the case.’” Id. (quoting Tex. Dep’t of Parks

& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).

Although the trial court did not expressly address the merits of Marks’s

complaints, it lacked the jurisdiction to do so if McLane was shielded by sovereign

immunity or if Marks did not plead sufficient jurisdictional facts. See San Jacinto

River Auth. v. Ackley, No. 09-22-00109-CV, 2024 Tex. App. LEXIS 7419, at **18,

27–28 (Tex. App.—Beaumont Oct. 17, 2024, no. pet.) (mem. op.). “When a

defendant challenges jurisdiction, a court ‘is not required to look solely to the

pleadings but may consider evidence and must do so when necessary to resolve the

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jurisdictional issues raised.’” Town of Shady Shores v. Swanson, 590 S.W.3d 544,

550 (Tex. 2019) (quoting Bland Indep. Sch. Dist., 34 S.W.3d at 555).

Marks’s appeal includes four issues:

1. Did the trial court abuse its discretion in failing to rule on the merits
of Appellant’s constitutional challenge to the State Statute Texas
Health and Safety Code (HSC) § 841.082(a)(4)(A)(ii)-(iii), pursuant
to the Uniform Declaratory Judgment Act of the Texas Civil
Practice & Remedies Code (CPRC) § 37?

2. Did the trial court abuse its discretion for failing to rule on the merits
of Appellant’s civil habeas corpus from an illegal restraint, thus
depriving this court of jurisdiction?

3. Did the trial court commit reversible error for failing to timely notify
Appellant of the dismissal hearing on the Appellee’s motion to
dismiss, pursuant to the Texas Rules of Civil Procedure (TRCP)
91a.6, thus depriving him of the opportunity to be timely notified
and meaningfully heard within the fourteen-day (14) notification
period?

4. Did the committing court err for failing to state on what grounds it
[d]ismissed Appellant’s two separate issues?

Issue One: Abuse of Discretion – Constitutional Challenge

In his first appellate issue, Marks contends that the trial court abused its

discretion in failing to rule on his constitutional challenge and he argues that the

SVP statute is unconstitutional because “it forces him to submit to a GPS leg

monitor-tracking device, that unnecessarily impinges on his liberty.” Marks further

posits that “[t]he statutory requirement to shackle Appellant with a GPS tracking

device while indefinitely confined in a maximum security treatment facility is

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arbitrarily punitive, and is excessive in relation to its intended purpose[.]” We

interpret this issue as a challenge to the trial court’s decision not to reach the merits

of his constitutional challenge to the SVP statute, despite the directive that courts

resolve issues on non-constitutional grounds when it is possible to do so. See City of

Beaumont v. Int’l Ass’n of Firefighters, Local Union No. 399, 241 S.W.3d 208, 216

(Tex. App.—Beaumont 2007, no pet.); see also Black v. McLane, No. 07-19-00241-

CV, 2021 Tex. App. LEXIS 2195, at *8 (Tex. App.—Amarillo Mar. 23, 2021, pet.

denied) (mem. op.).

The Uniform Declaratory Judgments Act permits a person to “obtain a

declaration of rights, status, or other legal relations []” under a statute. See Tex. Civ.

Prac. & Rem. Code Ann. §§ 37.002(a), 37.004(a). To establish the trial court’s

jurisdiction under the UDJA, however, Marks needed to “allege sufficient facts to

demonstrate the trial court ha[d] jurisdiction over [his] claims.” Glawson v. Polk

Cnty. Bail Bond Bd., 654 S.W.3d 763, 769 (Tex. App.—Beaumont 2022, pet.

denied). Conclusory pleadings “fail to allege facts sufficient to support” a claim. Id.

(citing City of Elsa, 325 S.W.3d at 625).

Marks’s pleadings are conclusory and do not “sufficiently allege jurisdictional

facts[.]” See Matzen v. McClain, 659 S.W.3d 381, 385 (Tex. 2021). Marks’s

contentions that the GPS tracking device constitutes “cruel and unusual

punishment,” and an “illegal restrain[t] of his liberty[]” are not allegations of

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jurisdictional facts, but are instead conclusory statements unsupported by facts, in

that Marks does not explain how the GPS monitor allegedly curtailed his liberty

within the TCCC. See In re Pope, No. 09-23-00286-CV, 2025 Tex. App. LEXIS

2464, at *32 (Tex. App.—Beaumont Apr. 10, 2025, no pet.) (mem. op.) (defining a

conclusory statement as one that provides no basis to support it). Since Marks did

not allege jurisdictional facts or present evidence relevant to the existence of

jurisdictional facts supporting his contention that a GPS monitor is unconstitutional,

he did not invoke the trial court’s jurisdiction, and the trial court correctly granted

the Plea to the Jurisdiction and dismissed Marks’s case. Id.

Similarly, in Matzen v. McLane, the appellant challenged, among other things,

the constitutionality of the cost-recovery rules that required him to pay for his

housing, treatment, and GPS tracking. 659 S.W.3d 381, 385 (Tex. 2021). In Matzen,

the trial court granted most of the plea to the jurisdiction, while allowing the takings

and due process claims to proceed. Id. at 387. On appeal, the Texas Supreme Court

stated that it was the plaintiff’s burden “‘to allege facts that affirmatively

demonstrate’” jurisdiction. Id. at 389. Although the jurisdictional question in Matzen

concerned an ultra vires claim, the same principle applies here: that it is the

plaintiff’s burden to allege sufficient facts to demonstrate subject-matter jurisdiction.

See id. at 388. Since Marks failed to do so, he did not establish jurisdiction, and the

trial court therefore correctly dismissed his cases.

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When repleading cannot cure the jurisdictional defect, the trial court need not

allow the plaintiff to replead. See Marcantel v. Patterson, No. 09-18-00293-CV,

2020 Tex. App. LEXIS 5384, at **6, 8–9 (Tex. App.—Beaumont July 16, 2020, pet.

denied) (mem. op.). Since Marks has failed to establish that he suffered a “concrete

and particularized injury-in-fact[,]” from being required to wear a GPS monitor

while committed at the TCCC, he cannot replead his complaint to allege

jurisdictional facts that would bring this matter within the trial court’s jurisdiction.

See City of San Antonio v. Southside Affordable Dev., LLC, No. 04-24-00371-CV,

2025 Tex. App. LEXIS 4981, at *13 (Tex. App.—San Antonio July 16, 2025, no

pet.) (requiring an injury as an element of constitutional standing). We overrule

Marks’s first appellate issue.

Issue Two: Abuse of Discretion – Habeas Corpus

Marks next argues that the trial court abused its discretion by failing to rule

on the merits of his civil habeas corpus challenge to what he contends is an illegal

restraint. This court lacks jurisdiction to address his habeas complaint because the

trial court did not address the merits of it. See Ex parte Williams, 200 S.W.3d 819,

820 (Tex. App.—Beaumont 2006, no pet.) (citations omitted).

In Williams, the trial court denied the appellant’s habeas corpus petition

without conducting an evidentiary hearing. Id. When the appellant appealed the

denial, we stated that “[w]e would exceed our authority as an intermediate appellate

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court if this Court were to act inconsistently with controlling Court of Criminal

Appeals’ decisions.” Id. at 820, 823 (citation omitted). We followed Ex parte

Williams in Ex parte Miller, noting that “we are bound by existing precedent of the

Texas Supreme Court and the Texas Court of Criminal Appeals holding that an

appellate court has no jurisdiction to hear the appeal when the trial court did not deny

the application for writ of habeas corpus on its merits.” No. 09-08-00194-CV, 2009

Tex. App. LEXIS 2298, at *3 (Tex. App.—Beaumont Apr. 2, 2009, no pet.) (mem.

op.) (citations omitted); see also Ex parte Richards, No. 09-24-00077-CV, 2024 Tex.

App. LEXIS 4499, at *11 (Tex. App.—Beaumont June 27, 2024, no pet.) (mem.

op.). We overrule his second issue.

Marks anticipated our lack of jurisdiction over his habeas corpus appeal, and

therefore “respectfully request[ed] this Court to consider his appeal as a Petition for

Writ of Mandamus, by utilizing each party’s brief, and the entire appellate record as

reference.” “We may issue a writ of mandamus to remedy a clear abuse of discretion

by the trial court when the relator lacks an adequate remedy by appeal.” Ex parte

Poest, No. 09-24-00072-CV, 2024 Tex. App. LEXIS 4500, at *12 (Tex. App.—

Beaumont June 27, 2024, no pet.) (mem. op.). The relator, Marks, “bears the burden

to provide the Court with a sufficient record to establish his right to mandamus

relief.” In re Asbell, No. 09-22-00132-CV, 2024 Tex. App. LEXIS 1342, at *5 (Tex.

App.—Beaumont Feb. 22, 2024, no pet.) (mem. op.). Marks has not shown that the

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trial court abused its discretion by declining to consider the merits of his habeas

corpus petition. See Ex parte Poest, 2024 Tex. App. LEXIS 4500, at *12.

Poest, like Marks, was a civilly committed SVP. See id. at **1–2. We declined

to exercise jurisdiction over Poest’s habeas corpus petition since the trial court did

not rule on the merits of his habeas application. Id. at **2, 9–11. We considered

Poest’s “misguided arguments” that the 2015 amendments did not apply to him

because he was civilly committed before the effective dates of those amendments.

Id. at **16-17. We then concluded that since the 2015 amendments did apply to

Poest, “the trial court did not abuse its discretion in denying the application,” and

denied Poest’s request for mandamus relief. Id. at 17.

Marks has not shown that the trial court abused its discretion and we deny his

petition for a writ of mandamus. See In re Poest, 2024 Tex. App. LEXIS 4500, at

**1–2; In re Brown, 2018 Tex. App. LEXIS 10023, at **1–2.

Issue Three: Rule 91a

In his third issue, Marks contends that the trial court erred by failing to provide

fourteen days’ notice of a dismissal hearing, as required by Rule 91a.6 of the Texas

Rules of Civil Procedure. See Tex. R. Civ. P. 91a.6.

Rule 91a allows a party to “move to dismiss a cause of action on the grounds

that it has no basis in law or fact.” Tex. R. Civ. P. 91a.1. The rule permits the court

to conduct an oral hearing on the motion but does not require it to do so. Tex. R.

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Civ. P. 91a.6. When the court chooses to conduct an oral hearing on a dismissal

motion filed pursuant to Rule 91a, “[e]ach party is entitled to at least 14 days’ notice

of the hearing on the motion to dismiss.” Id. Respondent’s Motion to Dismiss,

however, was not based on Rule 91a, and therefore the trial court was not required

to provide the notice required by Rule 91a. See Tex. R. Civ. P. 91a.6. Since Rule

91a has no bearing on the trial court’s dismissal, we overrule Marks’s third issue.

Issue Four: Dismissal Grounds

Marks’s final appellate issue complains that the trial court erred by “failing to

state on what grounds it dismissed Appellant’s two separate issues[.]” Marks has

not, however, cited any authority requiring the trial court to state its grounds, and we

are aware of none. See Tex. R. App. P. 38.1(i) (requiring appropriate citations to

authorities).

Marks acknowledges that when a court declines to state the reasons for its

dismissal, the appellate court may uphold the trial court’s ruling if that ruling was

correct under any applicable legal theory. Marks therefore must disprove every

ground the trial court could have relied on or Marks cannot prevail. See Pickens v.

Hartford Ins., No. 09-21-00052-CV, 2022 Tex. App. LEXIS 8108, at **2–3 (Tex.

App.—Beaumont Nov. 3, 2022, no pet.) (mem. op.) (“When a trial court sustains a

plea to the jurisdiction based on multiple grounds without specifying the ground or

grounds relied upon, an appellant must challenge all the grounds on appeal or else

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the appellate court will affirm.”) (citations omitted). Marks failed to address each

and every ground for the dismissal.

The Motion to Dismiss and Plea to the Jurisdiction urges multiple grounds for

dismissal, including sovereign and official immunity, and the affirmative defenses

of collateral estoppel and res judicata. See Tex. R. Civ. P. 94. The motion also seeks

dismissal for failure to state a claim upon which relief can be granted, stating that

Marks’s “claims are rife with conclusory allegations, irrelevant citations, and legal

errors.”

Although Marks filed a response to Respondent’s contentions of immunity

and other defenses, he did not address section 13.001 of the Texas Civil Practice and

Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 13.001(a), (b). This

section reads:

(a) A court in which an affidavit of inability to pay under Rule 145,
Texas Rules of Civil Procedure, has been filed may dismiss the
action on a finding that:

(1) the allegation of poverty in the affidavit is false; or

(2) the action is frivolous or malicious.

(b) In determining whether an action is frivolous or malicious, the court
may consider whether:

(1) The action’s realistic chance of ultimate success is slight;

(2) The claim has no arguable basis in law or in fact; or

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(3) It is clear that the party cannot prove a set of facts in support of
the claim.

Id.

Marks filed the instant claim alleging an inability to pay. Therefore, if his

claim is frivolous or malicious, the trial court was authorized to dismiss it. See id.

Marks contends that his ankle monitor restricts his liberty, yet he does not explain

how an ankle monitor restricts his liberty within the TCCC where he is confined. To

the contrary, we have observed that a tracking device is “a less restrictive restraint

than that approved in Hendricks.”3 In re Commitment of Graham, 117 S.W.3d 514,

515 (Tex. App.—Beaumont 2003, pet. denied). Although Marks alleged that his

liberty was restrained and he relied on Youngberg v. Romeo and May v. Sheahan to

support his argument, these cases are inapposite. See Youngberg v. Romeo, 457 U.S.

307, 319 (1982) (bodily restraint); May v. Sheahan, 226 F.3d 876, 878 (7th Cir.

2000) (shackled to bed). Unlike Nicholas Romeo and Gregory May, Marks was not

physically restrained. Since Marks’s contention that an ankle monitor restricts his

liberty (1) has a slight chance of ultimate success; (2) has no arguable basis in law

or fact; and (3) is not susceptible of proof of a set of facts in support of Marks’s

claim, the trial court was justified in finding Marks’s claim frivolous and malicious.

3
In Kansas v. Hendricks, the United States Supreme Court upheld the
constitutionality of confining a civilly committed sexually violent predator for
treatment. 521 U.S. 346, 368 (1997).

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See Tex. Civ. Prac. & Rem. Code Ann. § 13.001(b). We overrule Marks’s final

appellate issue.

To the extent Marks’s brief contains other arguments, Marks has not provided

either a “clear and concise argument” for his assertions nor has he supported his

arguments with “appropriate citations to authorities[.]” See In re Commitment of

Beasley, No. 09-08-00371-CV, 2009 Tex. App. LEXIS 8664, at *15 (Tex. App.—

Beaumont Nov. 12, 2009, no pet.) (mem. op.); In re Commitment of Walters, No.

09-14-00158-CV, 2015 Tex. App. LEXIS 1633, at **11–12 (Tex. App. —Beaumont

Feb. 19, 2015, no pet.) (mem. op.). As Marks’s appellate issues are not adequately

briefed, we have nothing to review and overrule Marks’s issues on this additional

basis.

CONCLUSION

We affirm the trial court’s order of dismissal.

AFFIRMED.

JAY WRIGHT
Justice

Submitted on June 2, 2025
Opinion Delivered August 21, 2025

Before Golemon, C.J., Johnson and Wright, JJ.

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