Ex Parte James Richards v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-24-00077-CV
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EX PARTE JAMES RICHARDS

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On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 24-01-01465-CV
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MEMORANDUM OPINION

James Richards filed a notice of appeal of an order denying an application for

a writ of habeas corpus, and in the brief he filed to support his appeal he complains

the trial court erred in denying the Application for Writ of Habeas Corpus (the

“application”), which he filed with the trial court during January 2024. In his

application, Richards alleged that he “is civilly committed pursuant to Texas Health

& Safety Code Chapter 841.” The application Richards filed argues that the 2015

Amendments to Chapter 841 should not have been applied to him, and he argues that

the statute, as applied to him, is unconstitutional. After receiving the notice of appeal

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and docketing the appeal, the Clerk of the Court questioned this Court’s jurisdiction.

Richards responded and argued this Court could exercise appellate jurisdiction

because the trial court had ruled on the merits of the application. In the alternative,

Richards asked the Court to consider granting mandamus relief should the Court find

that appellate jurisdiction was lacking over his appeal.

For the reasons explained below, we conclude the trial court did not rule on

the merits of Richards’ application for a writ of habeas corpus. We also conclude the

trial court did not abuse its discretion in denying the application and that Richards is

not entitled to relief under his alternative argument asking the Court to treat his

appeal as a petition for mandamus. We dismiss the appeal and deny the petition for

a writ of mandamus.

Background

In his application for a writ of habeas corpus, Richards alleged he is in the

custody of Marsha McLane, Executive Director of the Texas Civil Commitment

Office (TCCO) and that he is “unlawfully confined and restrained in his liberty at

the Texas Civil Commitment Center[.]” Richards stated that he was civilly

committed in 2003 in the 221st District Court of Montgomery County, Texas. See

Tex. Health & Safety Code Ann. §§ 841.001–.209 (the SVP Act). Richards claimed

the 2015 amendments to the SVP Act, which the 84th Legislature passed as Senate

Bill Number 746 (S.B. 746), are unconstitutional as applied to him because the

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enactment language of S.B. 746, subsection 40(a), made the law prospective only

and he was civilly committed as a sexually violent predator before June 17, 2015,

the effective date of S.B. 746. Richards attached to his application an order, signed

on September 15, 2015, amending the order of civil commitment to require the

TCCO to provide Richards with sex offender treatment and supervision pursuant to

section 841.0831 of the Health and Safety Code. Richards alleged his involuntary

residence in the Texas Civil Commitment Center is illegal because section 12 of S.B.

746, which deleted references to “outpatient” treatment, and section 16 of S.B. 746,

which created a tiered treatment program and required incarceration in a “total

confinement facility” in newly enacted section 841.0831 of the Health and Safety

Code, should not apply to him because he was already subject to civil commitment

under the SVP Act on June 17, 2015. Richards asked the trial court to issue the writ

of habeas corpus and order McLane to release Richards from confinement in the

Texas Civil Commitment Center and “provide him treatment and supervision in a

manner other than in confinement.” Richards requested a videoconference hearing

in the trial court on his application for a writ of habeas corpus.

In a response opposing Richards’ application for a writ of habeas corpus, the

State explained that the 2003 amendments to the SVP Act added subsection

841.082(e), which provided, “[t]he requirements imposed under Subsection (a) may

be modified at any time after notice to each affected party to the proceedings and a

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hearing.” See Act of May 30, 2003, 78th Leg., R.S., ch. 347, 2003 Tex. Gen. Laws

1505, 1516-17. The State attached a copy of an order, signed December 7, 2010, that

modified the final judgment and order of civil commitment to require that Richards

reside in a Texas Residential facility under contract with the predecessor agency or

at another location or facility approved by the agency. The State also attached a

waiver of right to notice and hearing of the change made by S.B. 746 and amended

order of civil commitment, signed on September 15, 2015, that ordered the TCCO

to provide Richards with appropriate sex offender treatment and necessary

supervision pursuant to section 841.0831 of the Health and Safety Code, and ordered

Richards to reside where instructed by TCCO and participate in and comply with the

TCCO sex offender treatment program. The State argued that the 2015 amendments

to the SVP Act required the TCCO to operate a tiered treatment program that began

with total confinement and had tiers of treatment that could then transition to

possible release from civil commitment. The State argued the S.B. 746 enactment

language that applied to Richards was subsection 40(b), which required the trial

court to modify Richards’ civil commitment order and place Richards in the tiered

treatment program.

On February 1, 2024, the trial court denied Richards’ application for a writ of

habeas corpus and his motion for a hearing. The trial court signed the order after

reviewing the application, the motion for a hearing, the State’s response, and “all

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other documents related to Richards’ application.” The order included recitals

finding “there are no controverted, previously unresolved facts material to the

legality of Richards’ civil commitment” and the trial court had found “legal authority

overruling Richards’ arguments in his application.”

On February 9, 2024, Richards filed a motion to strike the State’s response to

his application for a writ of habeas corpus. Richards claimed the Special Prosecution

Unit (SPU) lacked statutory authorization to represent the State in a habeas corpus

proceeding, argued that he had inadvertently served the Montgomery County

District Attorney, and that on February 5, 2024, he served Respondent McLane by

serving the General Counsel of the TCCO by regular mail. Richards submitted a

proposed order that is contained in the clerk’s record and remains unsigned.

On February 21, 2024, Richards mailed a notice of appeal that was received

by the District Clerk within ten days and filed on February 28, 2024. Upon receiving

the notice of appeal, the Clerk of the Court of Appeals issued a notice questioning

whether the appellate court had jurisdiction to consider the appeal. In response,

Richards argued he could appeal the order because the trial court had ruled on the

merits of the habeas corpus application. He argued that, although the trial court

declined to issue the writ, it had considered the facts argued in the application and

considered the arguments raised in Richards’ application. Finally, Richards asked

that this Court consider his request in the alternative as seeking a writ of mandamus.

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The Clerk of the Court notified Richards that if he wanted the appellate court to

consider a request for mandamus relief, he would be required to file a mandamus

petition at the same time or combine his petition with the Appellant’s Brief.

After Richards appealed, Richards filed a motion to strike the brief filed by

the SPU on behalf of the State of Texas. He argues the SPU “does not have standing

to be a party in this nor to represent a party on this case.” He argues the Respondent

is Marsha McLane in her capacity as Director of the TCCO, and the SPU should not

have the right to file a brief.

Special Prosecution Unit

Richards’ objection to the SPU’s appearance in the trial court and in the

appellate court lacks merit because Richards ignores the fact that the SPU represents

the State of Texas. In his application for a writ of habeas corpus, as the person held

in custody Richards is the Applicant, as the person holding Richards in custody

McLane is the Respondent, and as the party whose petition for civil commitment

resulted in the trial court’s judgment and order of civil commitment the State of

Texas is the Real Party in Interest.

The source of Richards’ current “confinement” is the 2003 Final Judgment

and Order of Commitment. That order was modified in 2010 to require Richards to

reside in supervised housing at a Texas residential facility under contract with

TCCO’s predecessor agency, or at another location or facility approved by that

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agency. See Act of May 23, 2011, 82nd Leg., R.S., Ch. 1201, 2011 Tex. Sess. Law

Serv. 3197, 3200-01. The SPU provides legal assistance in civil commitment cases

filed under the SVP Act. See Tex. Health & Safety Code Ann. § 841.042 (“On

request of the attorney representing the state, the special prosecution unit shall

provide legal, financial, and technical assistance to the attorney for a proceeding

conducted under this chapter.”). An application for a writ of habeas corpus is a

procedural vehicle for challenging the legality of a person’s confinement. See

generally Tex. Const. Art. I, § 12 (“The writ of Habeas Corpus is a writ of right, and

shall never be suspended. The Legislature shall enact laws to render the remedy

speedy and effectual.”). In Richards’ case, the confinement he alleges is illegal is

based upon the 2003 order of civil commitment, as modified through later

proceedings, including the September 2015 Amended Order of Civil Commitment

that required Richards to be placed into the tiered treatment program, as coordinated

by the Texas Civil Commitment Office, pursuant to Tex. Health & Safety Code§

841.0831.

In his Application for Writ of Habeas Corpus, Richards acknowledges he is

an SVP and subject to the order of civil commitment. We conclude when a person

subject to an order of civil commitment under the SVP Act challenges that

confinement in an application for a writ of habeas corpus, the SPU is authorized to

represent the State in the courts where the order’s validity is challenged.

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Appeal

Next, we consider whether we may review the trial court’s order as an exercise

of our appellate jurisdiction. See Tex. Gov’t Code Ann. § 22.220(a); see also Tex.

Civ. Prac. & Rem. Code Ann. § 51.012 (allowing an appeal from a final judgment

of the district court). In his response to the Clerk’s notice regarding jurisdiction,

Richards argues the order signed by the trial court in his case is similar to the order

signed by the trial court in Ex parte Rubio, in which we held the trial court ruled on

the merits of the SVP’s application seeking habeas relief. See No. 09-22-00219-CV,

2023 WL 4781646, at *2 (Tex. App.—Beaumont July 27, 2023, mand. denied,

habeas corpus denied) (mem. op.). In Ex parte Rubio, Rubio (also an SVP) filed an

Application for Writ of Habeas Corpus wherein he alleged 23 grounds in his

application making both legal and factual complaints against his continued

confinement. However, Rubio did not support his application with a supporting

affidavit or with documents to support his application for habeas relief. When the

State answered Rubio’s application, it supported its answer with this Court’s 2013

memorandum opinion dismissing Rubio’s appeal from the civil commitment order,

our mandate, the denial of Rubio’s petition for review by the Supreme Court of

Texas, and this Court’s 2017 memorandum opinion denying Rubio’s petition

seeking a writ of mandamus to compel the trial court to rule on his motion seeking to

declare the judgment committing him as a sexually violent predator void because he

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claimed that one of his prior convictions arose from a no contest plea. The SPU

argued the grounds raised by Rubio were not cognizable in a habeas proceeding. The

trial court in Ex parte Rubio entered an Order denying the application and, in the

order, stated that after reviewing the application and all documents from the parties

the application “should be on all grounds Denied.” On appeal to this Court and after

examining the record as a whole we concluded that we had appellate jurisdiction

because the trial court in denying Rubio’s application had made a “merits ruling.”

Here, unlike the application filed by Rubio, Richards’ application for a writ

of habeas makes a legal argument about why he contends the 2015 Amendments and

the Tiered Treatment Program do not apply to him. Richards does not controvert any

of the historical facts. In the trial court’s Order denying Richards’ application, the

trial court expressly states that no hearing is required because there are no

controverted and no previously unresolved material facts. Then in a separate

paragraph the trial court states there is “legal authority overruling Richards’

arguments in his application. Therefore, Richards’ Application for Writ of Habeas

Corpus is also DENIED.” These additional recitals along with the nature of the

application filed by Richards distinguish this case from the facts in Rubio.

“[A]n 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.” Ex parte Miller,

No. 09-08-00194-CV, 2008 WL 5780816, at *1 (Tex. App.—Beaumont Apr. 2,

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2009, no pet.) (mem. op.) (citations omitted). After reviewing the record as a whole

in this case, we conclude the order denying Richards’ application for a writ of habeas

corpus was not appealable as a final judgment and that the trial court determined the

application lacked merit from the face of Richards’ application.

Mandamus

An appellant may invoke the court’s mandamus jurisdiction by requesting that

we consider the appeal brief as a mandamus petition in the event the appellate court

determines it lacks appellate jurisdiction over the case. See In re Commitment of

Renshaw, 672 S.W.3d 426, 427–28 (Tex. 2023) (orig. proceeding); CMH Homes v.

Perez, 340 S.W.3d 444, 452 (Tex. 2011). Richards requested that the Court treat his

appellate brief as a request for mandamus relief.

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. See In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding);

Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding).

“A trial court clearly abuses its discretion if it reaches a decision so arbitrary

and unreasonable as to amount to a clear and prejudicial error of law.” Walker, 827

S.W.2d at 839 (internal quotations omitted). A trial court also abuses its discretion

if it fails to correctly analyze or apply the law, because “‘[a] trial court has no

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“discretion” in determining what the law is or [in] applying the law to the facts[.]’”

See Prudential, 148 S.W.3d at 135 (quoting Walker, 827 S.W.2d at 840).

Statutory construction is a question of law we review de novo. In re D.S., 602

S.W.3d 504, 514 (Tex. 2020). “Our primary objective in construing statutes is to

give effect to the Legislature’s intent.” Molinet v. Kimbrell, 356 S.W.3d 407, 411

(Tex. 2011) (citation omitted). “The plain meaning of the text is the best expression

of legislative intent unless a different meaning is apparent from the context, or the

plain meaning leads to absurd or nonsensical results.” Id. (citation omitted). “If the

meaning of the statutory language is unambiguous, we adopt the interpretation

supported by the plain meaning of the statute.” In re D.T., 625 S.W.3d 62, 71 (Tex.

2021) (citation omitted). We presume that each word contained in a statute has a

purpose and that words not included were omitted purposefully. ExxonMobil

Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 2017) (citation omitted).

The provisions of section 841.082(a) that were in effect before the 2015

amendment allowed the committing court to enter an order “requiring the person to

reside in a Texas residential facility under contract with the office or at another

location or facility approved by the office;” and “requiring the person’s participation

in and compliance with a specific course of treatment[.]” See 2011 Tex. Sess. Law

Serv. at 3200. And, this Court has previously rejected challenges to the committing

court’s order modifying the order of civil commitment to order a person who had

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been civilly committed before 2015 to be placed into the tiered treatment program

that the Legislature mandated in 2015. See In re Wilson, No. 09-16-00243-CV, 2016

WL 5225422, at *3–4 (Tex. App.—Beaumont Sept. 22, 2016, orig. proceeding)

(mem. op.); In re Martinez, No. 09-16-00263-CV, 2016 WL 4698645, at *1 (Tex.

App.—Beaumont Sept. 8, 2016, orig. proceeding) (mem. op.); In re Williams, No.

09-16-00087-CV, 2016 WL 4249175, at *1 (Tex. App.—Beaumont Aug. 11, 2016,

orig. proceeding) (mem. op.). The relator in Wilson also argued that his amended

commitment order unlawfully interfered with his rights under the original

commitment order to receive outpatient treatment. See 2016 WL 5225422, at *3.

This Court rejected that argument, finding that the trial court had the authority to

modify its prior orders and the relator “had no vested rights under the trial court’s

previous orders.” Id. at *4. We explained that the judgment allowed the agency in

charge of the relator’s treatment to decide both where he would be required to live

and to supervise the program of sex offender treatment that the commitment order

required that he receive. Id. “[B]y amending the commitment order so that the

amended order complied with the changes the Legislature made to the SVP statute

in 2015, the trial court did not violate [the relator’s] constitutional rights.” Id. at *3;

see also In re Commitment of May, 500 S.W.3d 515, 524–26 (Tex. App.—Beaumont

2016, pet. denied); In re Commitment of Cortez, 405 S.W.3d 919, 935–36 (Tex.

App.—Beaumont 2013, no pet.).

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Richards concedes the version of section 841.082 of the Health and Safety

Code that existed before 2015 allowed the trial court to modify the requirements

listed in section 841.082(a), which includes “requiring the person to reside where

instructed” and “requiring the person’s participation in and compliance with the sex

offender treatment program[.]” Even though the trial court already had the power to

modify Richards’ court-ordered sex offender treatment, Richards argues the 2015

amendment to the SVP Act “does not authorize placing Richards, or anyone else into

the tiered program, requiring total confinement.” Richards argues he is entitled to

“treatment and supervision under the pre-amendment version of the statute, and in a

manner other than in confinement.” We disagree.

Subsection 40(b) of S.B. 746 states:

If a civil commitment requirement imposed under Chapter 841,
Health and Safety Code, before the effective date of this Act differs
from any of the civil commitment requirements listed in Section
841.082, Health and Safety Code, as amended by this Act, the
applicable court with jurisdiction over the committed person shall, after
notice and hearing, modify the requirement imposed as applicable to
conform to that section.

Act of May 21, 2015, 84th Leg., R.S., ch. 845, 2015 Tex. Sess. Law Serv. 2701,

2711. Richards argues this paragraph applies only to section 13 of S.B. 746, which

amended section 841.082 of the Health and Safety Code. See id. 2015 Tex. Sess.

Law Serv. at 2704-05. Richards argues the changes S.B. 746 made to other sections

within Chapter 841 of the Health and Safety Code, including the tiered treatment

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program requirements found in newly added section 841.0831, are prospective only

and cannot be applied to him due to the operation of subsection 40(a) of S.B. 746,

which provides:

SECTION 40. (a) Except as provided by Subsection (a-1) of this
section, the changes in law made by this Act to Chapter 841, Health and
Safety Code, apply to a civil commitment proceeding under that chapter
that is initiated on or after the effective date of this Act, regardless of
when the applicable petition for civil commitment was filed.

Id. 2015 Tex. Sess. Law Serv. at 2711. 1

Richards argues section 41 of S.B. 746 applies only to the 2015 amendment

to section 841.085 of the Health and Safety Code, section 40(b) applies only to the

2015 amendment to section 841.082 of the Health and Safety Code, and section

40(a) applies to all remaining sections of the SVP Act that the legislature amended

in S.B. 746. Richards misinterprets subsection 40(a), he reads it in isolation, without

considering the purpose of S.B. 746, and he ignores the plain language of what

section 40 actually says. For example, in sections 1, 3, and 35-38 of S.B. 746, the

1 Subsection (a-1), which provides an exception to subsection 40(a), states:

(a-1) The jurisdiction of a district court, the representation of the state
by the civil division of the special prosecution unit, and the
representation of a respondent by the Office of State Counsel for
Offenders or other court-appointed counsel in any civil commitment
trial, any review of a petition for release, or any biennial review under
Chapter 841, Health and Safety Code, that is pending on the effective
date of this Act remain unaffected by this Act until the conclusion of
that proceeding.

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legislature replaced the Office of Violent Sex Offender Management with the

TCCO. See 2015 Tex. Sess. Law Serv. at 2701 (amending Health & Safety Code

Ann. §§ 841.002(4); 841.007), 2711 (amending Tex. Gov’t Code Ann. §§ 420A.001-

.004). Under Richards’ misguided arguments, the statutes creating the TCCO and

giving it the responsibility for administering the state’s sex offender treatment

program would not apply to anyone who was civilly committed before June 17,

2015. That would be expressly contrary to the statute.

Subsection 40(b) expressly requires the court with jurisdiction over a

committed person, after notice and a hearing, to modify any civil commitment

requirement imposed under Health and Safety Code Chapter 841 to conform with

the changes that S.B. 746 made to any of the civil commitment requirements listed

in Health and Safety Code section 841.082. Id. at 2711. The civil commitment

requirements of section 841.082 include requiring the person to reside where

instructed by the TCCO, requiring the person’s participation in and compliance with

the sex offender treatment program provided by TCCO, and requiring the person to

submit to the supervision. See Tex. Health & Safety Code Ann. § 841.082. We

conclude Richards’ argument is contrary to our prior precedent, as well as contrary

to the express language in the statute.

For all the reasons outlined above, we conclude the 2015 amendments to the

SVP Act, including the tiered treatment program, apply to Richards as a matter of

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law and are not unconstitutional as applied to Richards. We deny Richards’ request

for mandamus relief.

Conclusion

In conclusion, when the trial court denied Richards’ application and request

for a hearing, the trial court did not rule on the merits of Richards’ application for a

writ of habeas corpus. Accordingly, we lack appellate jurisdiction over Richards’

attempted appeal of the trial court’s orders denying Richards’ application and the

appeal is dismissed. That said, considering Richards’ brief as a petition for a writ of

mandamus, we further conclude that the trial court acted within its discretion and

that Richards is not entitled to mandamus relief because we conclude that the 2015

amendments to the SVP Act, including the tiered treatment program, apply to

Richards as a matter of law. We deny the petition for a writ of mandamus. See Tex.

R. App. P. 43.2(f), 52.8(a).

APPEAL DISMISSED; PETITION DENIED.

PER CURIAM

Submitted on May 21, 2024
Opinion Delivered June 27, 2024

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

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