Ex Parte Calvin Poest v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-24-00072-CV
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EX PARTE CALVIN POEST

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On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 24-01-01421-CV
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MEMORANDUM OPINION

Calvin Poest 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, Poest alleged that he “is civilly committed pursuant to Texas Health &

Safety Code Chapter 841.” The application Poest 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. On appeal, the Clerk of the Court

questioned whether this Court had jurisdiction over Poest’s appeal. Poest responded

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and argued that because the trial court had ruled on the merits of his application, this

Court had appellate jurisdiction over his appeal. In the alternative, Poest asked this

Court to consider his request as a petition seeking 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 Poest’s application for a writ of habeas corpus. We also conclude the

trial court did not abuse its discretion in denying the application and that Poest 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, Poest 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[.]” Poest states that he was civilly committed

in 2009 in the 435th District Court of Montgomery County, Texas, in Trial Cause

Number 09-05-04476-CV. See Tex. Health & Safety Code Ann. §§ 841.001-.209

(the SVP Act). Poest claims 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 enactment language of S.B. 746, subsection 40(a), made

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the law prospective only, and he was civilly committed as an SVP before the

effective date of S.B. 746, which is June 17, 2015. Poest alleged that his involuntary

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

746, which deleted “outpatient” from the first and second sentences of section

841.081 of the Health and Safety Code and section 16 of S.B. 746, and 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 be applied to him because when the amendments went into effect, he had already

been adjudicated a sexually violent predator and was therefore already subject to a

civil commitment order that had issued under the SVP Act. Poest asked the trial

court to issue the writ of habeas corpus and order McLane to release Poest from

confinement in the Texas Civil Commitment Center and provide treatment and

supervision in a manner other than confinement. In his application seeking a writ of

habeas corpus, Poest asked the trial court to conduct a video conference hearing on

the issues he claimed his application raised.

In a response opposing Poest’s application, the State explained that Poest’s

original 2009 order of civil commitment required that he reside in supervised

housing at a Texas residential facility under contract with the TCCO’s predecessor

agency. Additionally, the State argued that the 2015 amendments to the SVP Act

required the TCCO to operate a tiered treatment program that began with total

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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 Poest was subsection 40(b), which required the trial court to modify

Poest’s civil commitment order and place Poest in the tiered treatment program in

late 2015.

On February 1, 2024, the trial court denied Poest’s application and his motion

requesting a hearing. In its order, the trial court stated:

The court has this day reviewed Poest’s application for a writ of habeas
corpus and his motion for a hearing. The court has also reviewed the
State’s responses and all other documents related to Poest’s application.

The court finds there are no controverted, previously unresolved facts
material to the legality of Poest’s civil commitment or his 2015
placement into the tiered-treatment program. Therefore, Poest’s request
for a hearing is DENIED.

Further, the court finds legal authority overruling Poest’s arguments in
his application. Therefore, Poest’s application for writ of habeas corpus
is also DENIED.

On February 14, 2024, Poest filed a motion to strike the State’s response to

his application. Poest complained that the Special Prosecution Unit (SPU) was not

statutorily authorized to represent the State in a habeas corpus proceeding, argued

that he had inadvertently served the Montgomery County District Attorney, and that

on January 5, 2024, he served Respondent McLane by serving the General Counsel

of the TCCO by regular mail. Poest submitted a proposed order, which is contained

in the clerk’s record but is unsigned.
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On February 21, 2024, Poest mailed a notice of appeal of the trial court’s

Order denying his application for a writ of habeas corpus. Upon receiving the clerk’s

record, the Clerk of the Court of Appeals issued a notice questioning whether the

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

order could be appealed because the trial court had ruled on the merits of Poest’s

habeas corpus petition. 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 his application had raised. Finally, Poest asked that this Court consider

his request in the alternative as seeking a writ of mandamus. The Clerk of the Court

notified Poest 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 Poest appealed, Poest filed a motion with the Clerk of this Court asking

that the Court strike the brief filed by the SPU on behalf of the State. He argues the

SPU “does not have standing to be a party in this case, nor to represent a party in

this case.” He argues the Respondent is Marsha McLane in her capacity as Director

of the TCCO, and Poest contends the SPU should not have the right to file a brief.

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Special Prosecution Unit

Poest’s objection to the SPU’s appearance in the trial court and in the appellate

court lacks merit because Poest 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

Poest is the Applicant, as the person holding Poest 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.

In 2009, Poest’s civil commitment proceeding was called to trial and Poest

entered into an Agreed Final Judgment. The Agreed Final Judgment reflects that he

declared: “CALVIN LEE POEST is a sexually violent predator as defined in Health

& Safety Code § 841.003 and so stipulates. CALVIN LEE POEST agrees to civil

commitment in accordance with Health & Safety Code § 841.081, this Agreed Final

Judgment and the Order of Commitment signed this date.” Thus, the record shows

that the 2009 Order of Commitment is the source of Poest’s current confinement.

And that Order specifically provides that Poest is required 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 agency, in accordance with

the applicable law governing Poest, a sexually violent predator. See Act of May 23,

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2011, 82nd Leg., R.S., ch. 1201, § 8, 2011 Tex. Sess. Law Serv. 3197, 3200-01

(amended 2015, 2017).

As to the SPU representing the State, the SPU provides legal assistance for

the State 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 Poest’s case, the confinement he

alleges is illegal is based upon the 2009 order of civil commitment, as modified

through later proceedings, including the October 2015 Amended Order of Civil

Commitment that required Poest to be placed into the “Tiered Treatment Program,

as coordinated by the Texas Civil Commitment Office, pursuant to Tex. Health &

Safety Code § 841.0831.” The 2015 Order expressly states that “Poest’s Order of

Civil Commitment is amended to conform with the legislative changes contained in

Senate Bill 746.”

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

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

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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.

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,

Poest 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

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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

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, Poest’s 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. Poest does not controvert any of

the historical facts. In the trial court’s Order denying Poest’s 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 Poest’s arguments in his application.

Therefore, Poest’s Application for Writ of Habeas Corpus is also DENIED.” These

additional recitals along with the nature of the application filed by Poest distinguish

this case from the facts in Rubio.

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Poest applied to the trial court for a writ that, if granted, would afford him

relief from the restrictions on his liberty that were imposed on him by virtue of the

order of civil commitment in Trial Cause Number 09-05-04476-CV. “[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, 2009, no pet.)

(mem. op.). After reviewing the record as a whole in this case, we conclude the order

denying Poest’s 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 Poest’s application.

Mandamus

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

the appeal brief be considered 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). Poest 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.

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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 “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). “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. “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). 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).

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

amendment allowed the committing court to enter an order “(1) requiring the person

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

location or facility approved by the council;” and “(4) 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 SVP challenges to

a committing court’s order placing a pre-amendment SVP into a tiered treatment

program as mandated by the Legislature in the 2015 amendment. See In re Wilson,

No. 09-16-00243-CV, 2016 Tex. App. LEXIS 10400, at *3 (Tex. App.— Beaumont

September 22, 2016, orig. proceeding) (mem. op.); In re Martinez, No. 09-16-00263-

CV, 2016 Tex. App. LEXIS 10012, at *2 (Tex. App.—Beaumont Sept. 8, 2016, orig.

proceeding) (mem. op.) (trial court had the authority to amend the order of

commitment to require TCCO to supervise Martinez and to place him in the tiered

treatment system); In re Williams, No. 09-16-00087-CV, 2016 Tex. App. LEXIS

8708, at *1 (Tex. App.—Beaumont Aug. 11, 2016, orig. proceeding) (mem. op.)

(trial court did not abuse its discretion by ordering Williams into the tiered treatment

program). The petitioner in Wilson also argued that his amended commitment order

unlawfully interfered with his rights under the original commitment order to receive

outpatient treatment. 2016 Tex. App. LEXIS 10400, at *8. This Court rejected that

argument, finding that the trial court had the authority to modify its prior orders and

the plaintiff “had no vested rights under the trial court’s previous orders.” Id. at 9.

This Court explained that the judgment allowed the agency in charge of the

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plaintiff’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 [plaintiff’s] constitutional rights.” Id. at 10; see also In re

Danner, 502 S.W.3d 838, 839 (Tex. App.—Beaumont 2016, orig. proceeding); 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 929, 935-36 (Tex. App.—

Beaumont 2013, no pet.). Poest 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 Poest’s court-ordered sex offender treatment, Poest

argues the 2015 amendment to the SVP Act “does not authorize placing Poest, or

anyone else into the tiered program, requiring total confinement,” and he contends

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
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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. Poest 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. Poest argues the changes S.B. 746 made to other sections

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

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

and cannot be applied to him. His sole support for his proposition is 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

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Subsection (a-1), which provides an exception to Section 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
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Poest argues section 41 of S.B. 746 applies only to the 2015 amendment to

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

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

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

in S.B. 746. Poest 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

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 Poest’s 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

date of this Act remain unaffected by this Act until the conclusion of
that proceeding.

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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 of the TCCO. See Tex. Health & Safety Code Ann. §

841.082. We conclude Poest’s argument is contrary to our prior precedent, as well

as contrary to the express language in the statute.

For the reasons discussed above, we conclude the 2015 amendments to the

SVP Act at issue here, including the tiered treatment program, apply to Poest as a

matter of law and are not unconstitutional as applied to Poest. Because the trial court

did not abuse its discretion in denying the application, we deny Poest’s request

seeking mandamus relief.

Conclusion

In conclusion, when the trial court denied Poest’s application and request for

a hearing, the trial court did not rule on the merits of Poest’s application seeking a

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

attempted appeal of the trial court’s order denying Poest’s application and his appeal

is dismissed. That said, after considering Poest’s brief as a petition for a writ of

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

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

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

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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