In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-19-00228-CV ________________
IN RE COMMITMENT OF DAVID DODSON
________________________________________________________________________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 08-03-02882-CV ________________________________________________________________________
MEMORANDUM OPINION
In 2008, a trial court ordered the civil commitment of Appellant David
Dodson after a jury found him to be a sexually violent predator (SVP). See Tex.
Health and Safety Code Ann. § 841.003. In its order, the court committed Dodson
to outpatient treatment to be coordinated by a case manager and ordered that Dodson
participate in a course of treatment to be determined by the Council on Sex Offender
Treatment (Council). Dodson appealed from the Final Judgment and Order of
Commitment, and we reversed and remanded for a new trial. See In re Commitment
of Dodson, 311 S.W.3d 194, 195 (Tex. App—Beaumont, 2010, pet. denied),
1 abrogated by In re Commitment of Bohannan, 338 S.W.3d 296 (Tex. 2012). In 2013,
after a new trial, a jury unanimously found Dodson was an SVP under Chapter 841
and ordered that he be committed to outpatient treatment to be coordinated by a case
manager. Dodson was ordered to participate in a course of treatment to be
determined by the Office of Violent Sex Offender Management (Office). Dodson
appealed, and this Court affirmed the trial court’s judgment. See In re Commitment
of Dodson, 434 S.W.3d 742, 744 (Tex. App.—Beaumont 2014, pet. denied).
In 2015, at the time of his scheduled biennial review, Dodson was incarcerated
in the Texas Department of Criminal Justice due to his prior failure to comply with
his civil commitment requirements. The trial court found that any duties imposed by
Chapter 841 were suspended for the duration of Dodson’s confinement and there
was no requirement for the trial court to conduct a review hearing. See Tex. Health
& Safety Code Ann. § 841.102. However, the court found that the sex offender
treatment he received before and during his incarceration had not resulted in a
change in his behavioral abnormality. The court ordered that (1) Dodson should
remain a committed person pursuant to the Health & Safety Code until it was
determined that he would no longer likely engage in a predatory act of sexual
violence and all requirements of his original commitment, and (2) any modifications
should remain in full force and effect.
2 In August of 2015, the State of Texas filed an Opposed Motion for Placement
in Tiered Treatment Program requesting that due to legislative changes amending
chapter 841 of the Health & Safety Code, the trial court hold a hearing for “all SVPs
currently civilly committed to conform with the recent legislative changes,” and to
place Dodson in a “tiered treatment model” as described in the amended code. After
a hearing, the trial court modified Dodson’s commitment and ordered him placed
into a “Tiered Treatment Program” and amended its order of civil commitment.
Subsequently, Dodson filed an application for writ of habeas corpus attacking the
modification of his treatment plan and the denial of his biennial review in 2015. He
now appeals the trial court’s denial of his application seeking relief through a writ
of habeas corpus.
Issue One
In his first issue, Dodson argues that he was denied due process guaranteed
by the Texas Constitution, Article 1, section 19, and the Fourteenth Amendment of
the United States Constitution when the trial court declined to conduct a biennial
review in 2015.
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.
3 denied). The trial court is required to review the status of the person who has been
committed every two years. See Tex. Health & Safety Code Ann. § 841.102.
However, section 841.150(a) provides
The duties imposed on the office and the judge by this chapter are suspended for the duration of a detention or confinement of a committed person in a correctional facility, secure correctional facility, or secure detention facility, or if applicable any other commitment of the person to a community center, mental health facility, or state supported living center, by governmental action.
Id. § 841.150(a). The record demonstrates that Dodson was due to have his biennial
review on February 7, 2015. Neither Dodson nor the State dispute that on February
7, 2015, Dodson was confined in a correctional facility due to a parole violation of
his criminal conviction. As such, the trial court’s duty to conduct a biennial review
required by Chapter 841 was suspended under section 841.150(a). See id. While
Dodson directs this Court to case law that implores us to ensure incarceration takes
“place pursuant to proper procedures and evidentiary standards[,]” we are to
presume the statute is constitutional. See Goodwin v. State, 416 S.W.3d 90, 97 (Tex.
App.—Beaumont 2013, no pet.) (citing Tex. Gov’t Code Ann. § 311.021) (“We must
presume that in enacting a statute, the entire statute is intended to be effective and a
just and reasonable result is intended.”) In Goodwin, we noted that in presuming
the statue is “just and reasonable,” we may “consider the object sought to be obtained
and the consequences of a particular construction.” See id. (citation omitted). Section
841.150 suspends the obligations of chapter 841, including a biennial review, if the 4 SVP is incarcerated. See id.; see also Tex. Health & Safety Code Ann. § 841.150(a).
While the purpose of a biennial review is to review whether a requirement imposed
on the person should be modified and whether probable cause exists to believe that
the person is no longer likely to engage in another sexually violent act, if that person
is incarcerated at the time of the scheduled review, that review is not necessary as
the person would not be released from jail based on any findings of the biennial
review. See Goodwin, 416 S.W.3d at 97-98. (explaining that the statutory duties
imposed by 841.150 are suspended if the SVP is subsequently incarcerated).
Accordingly, the statute is clear that if an SVP is incarcerated, “[t]he duties imposed
on the office and the judge by this chapter are suspended for the duration of a
detention or confinement[.]” Tex. Health & Safety Code Ann. § 841.150(a). We
overrule Dodson’s first issue.
Issue Two
In his second issue, Dodson argues that the trial court abused its discretion by
placing him in a tiered treatment program as it violated “the separation of powers or
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In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-19-00228-CV ________________
IN RE COMMITMENT OF DAVID DODSON
________________________________________________________________________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 08-03-02882-CV ________________________________________________________________________
MEMORANDUM OPINION
In 2008, a trial court ordered the civil commitment of Appellant David
Dodson after a jury found him to be a sexually violent predator (SVP). See Tex.
Health and Safety Code Ann. § 841.003. In its order, the court committed Dodson
to outpatient treatment to be coordinated by a case manager and ordered that Dodson
participate in a course of treatment to be determined by the Council on Sex Offender
Treatment (Council). Dodson appealed from the Final Judgment and Order of
Commitment, and we reversed and remanded for a new trial. See In re Commitment
of Dodson, 311 S.W.3d 194, 195 (Tex. App—Beaumont, 2010, pet. denied),
1 abrogated by In re Commitment of Bohannan, 338 S.W.3d 296 (Tex. 2012). In 2013,
after a new trial, a jury unanimously found Dodson was an SVP under Chapter 841
and ordered that he be committed to outpatient treatment to be coordinated by a case
manager. Dodson was ordered to participate in a course of treatment to be
determined by the Office of Violent Sex Offender Management (Office). Dodson
appealed, and this Court affirmed the trial court’s judgment. See In re Commitment
of Dodson, 434 S.W.3d 742, 744 (Tex. App.—Beaumont 2014, pet. denied).
In 2015, at the time of his scheduled biennial review, Dodson was incarcerated
in the Texas Department of Criminal Justice due to his prior failure to comply with
his civil commitment requirements. The trial court found that any duties imposed by
Chapter 841 were suspended for the duration of Dodson’s confinement and there
was no requirement for the trial court to conduct a review hearing. See Tex. Health
& Safety Code Ann. § 841.102. However, the court found that the sex offender
treatment he received before and during his incarceration had not resulted in a
change in his behavioral abnormality. The court ordered that (1) Dodson should
remain a committed person pursuant to the Health & Safety Code until it was
determined that he would no longer likely engage in a predatory act of sexual
violence and all requirements of his original commitment, and (2) any modifications
should remain in full force and effect.
2 In August of 2015, the State of Texas filed an Opposed Motion for Placement
in Tiered Treatment Program requesting that due to legislative changes amending
chapter 841 of the Health & Safety Code, the trial court hold a hearing for “all SVPs
currently civilly committed to conform with the recent legislative changes,” and to
place Dodson in a “tiered treatment model” as described in the amended code. After
a hearing, the trial court modified Dodson’s commitment and ordered him placed
into a “Tiered Treatment Program” and amended its order of civil commitment.
Subsequently, Dodson filed an application for writ of habeas corpus attacking the
modification of his treatment plan and the denial of his biennial review in 2015. He
now appeals the trial court’s denial of his application seeking relief through a writ
of habeas corpus.
Issue One
In his first issue, Dodson argues that he was denied due process guaranteed
by the Texas Constitution, Article 1, section 19, and the Fourteenth Amendment of
the United States Constitution when the trial court declined to conduct a biennial
review in 2015.
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.
3 denied). The trial court is required to review the status of the person who has been
committed every two years. See Tex. Health & Safety Code Ann. § 841.102.
However, section 841.150(a) provides
The duties imposed on the office and the judge by this chapter are suspended for the duration of a detention or confinement of a committed person in a correctional facility, secure correctional facility, or secure detention facility, or if applicable any other commitment of the person to a community center, mental health facility, or state supported living center, by governmental action.
Id. § 841.150(a). The record demonstrates that Dodson was due to have his biennial
review on February 7, 2015. Neither Dodson nor the State dispute that on February
7, 2015, Dodson was confined in a correctional facility due to a parole violation of
his criminal conviction. As such, the trial court’s duty to conduct a biennial review
required by Chapter 841 was suspended under section 841.150(a). See id. While
Dodson directs this Court to case law that implores us to ensure incarceration takes
“place pursuant to proper procedures and evidentiary standards[,]” we are to
presume the statute is constitutional. See Goodwin v. State, 416 S.W.3d 90, 97 (Tex.
App.—Beaumont 2013, no pet.) (citing Tex. Gov’t Code Ann. § 311.021) (“We must
presume that in enacting a statute, the entire statute is intended to be effective and a
just and reasonable result is intended.”) In Goodwin, we noted that in presuming
the statue is “just and reasonable,” we may “consider the object sought to be obtained
and the consequences of a particular construction.” See id. (citation omitted). Section
841.150 suspends the obligations of chapter 841, including a biennial review, if the 4 SVP is incarcerated. See id.; see also Tex. Health & Safety Code Ann. § 841.150(a).
While the purpose of a biennial review is to review whether a requirement imposed
on the person should be modified and whether probable cause exists to believe that
the person is no longer likely to engage in another sexually violent act, if that person
is incarcerated at the time of the scheduled review, that review is not necessary as
the person would not be released from jail based on any findings of the biennial
review. See Goodwin, 416 S.W.3d at 97-98. (explaining that the statutory duties
imposed by 841.150 are suspended if the SVP is subsequently incarcerated).
Accordingly, the statute is clear that if an SVP is incarcerated, “[t]he duties imposed
on the office and the judge by this chapter are suspended for the duration of a
detention or confinement[.]” Tex. Health & Safety Code Ann. § 841.150(a). We
overrule Dodson’s first issue.
Issue Two
In his second issue, Dodson argues that the trial court abused its discretion by
placing him in a tiered treatment program as it violated “the separation of powers or
procedural due process.” Effective June 17, 2015, Senate Bill 746 amended Chapter
841 of the Texas Health and Safety Code in several respects. See Act of May 21,
2015, 84th Leg., R.S., ch. 845, 2015 Tex. Sess. Law Serv. 2700, 2700–2712. The
Legislature created the Texas Civil Commitment Office (TCCO), charging TCCO
with the responsibility for treatment and supervision of sexually violent predators.
5 See id. § 3 (current version at Tex. Health & Safety Code Ann. § 841.007). The
TCCO was tasked with developing a tiered program of supervision and treatment
that provides a seamless transition from a total confinement facility to less restrictive
housing and supervision and eventual release from civil commitment, based on the
person’s behavior and progress in treatment. See Tex. Health & Safety Code Ann.
§ 841.0831. The program now transfers a committed person to less restrictive
housing and supervision if the transfer is in the best interests of the person and
conditions can be imposed that adequately protect the community, and a committed
person may petition the court for a transfer to less restrictive housing and
supervision. See id. § 841.0834.
If a civil commitment requirement imposed under Chapter 841, Health and
Safety Code, differs from any of the civil commitment requirements of section
841.082, Health and Safety Code, as amended, the court with jurisdiction over the
committed person shall, after notice and hearing, modify the requirement imposed
as applicable to conform to that section. See id. § 841.082(e).
Assuming without deciding that constitutional error was preserved in this
case, Dodson’s constitutional challenges fail. In re Commitment of Wetzel, No. 09-
15-00485-CV, 2017 WL 929480, at *1 (Tex. App.—Beaumont Mar. 9, 2017, no
pet.) (mem. op.) (citations omitted) (“The rule of error preservation applies to facial
challenges to the constitutionality of the SVP statute, as such challenges must first
6 be raised in the trial court to preserve them for review on appeal.”); see also Tex. R.
App. P. 33.1(a)(1). In 2016, we addressed the same contention and rejected it, along
with a similar challenge later that year. See In re Commitment of May, 500 S.W.3d
515, 517–18 (Tex. App.—Beaumont 2016, pet. denied); see also In re Commitment
of Garza, No. 09-15-00268-CV, 2016 WL 4485641, at *1 (Tex. App.—Beaumont
Aug. 25, 2016, pet. denied) (mem. op.) (“We decline to revisit our holding in May,
and we reiterate that Chapter 841 of the Texas Health and Safety Code, as amended
in 2015, is neither punitive nor facially unconstitutional.”). In May, we determined
that the appellant’s due process rights were not violated by modifying the existing
order without re-initiating the process for an initial civil commitment. See 500
S.W.3d at 526–27. We explained that the statute requires a notice and hearing before
any modification to the civil commitment order, and it is not a violation of due
process for a judge to modify the commitment order to conform with the statutory
amendments. See id. Furthermore, the original 2013 Order of Commitment provided
that the Office was allowed to develop a treatment plan for Dodson and provided the
Council leeway to amend such treatment plan in Dodson’s best interest. See id.
Dodson’s argument that the State’s modification of his commitment order
violates the separation of powers is without merit because the statute is clear that to
modify the Order of Commitment, the appellant must be afforded notice and a
hearing, something that Dodson does not contest that he received. We hold that the
7 trial court’s amendment of Dodson’s 2013 Order of Commitment to enroll him in
the Tiered Treatment Program is not violative of his liberties under either due
process or the separation of powers. See In re Martinez, No. 09-16-00263-CV, 2016
WL 4698645, at *1 (Tex. App.—Beaumont Sept. 8, 2016, no pet.) (mem. op.)
(explaining that the appellant has no valid complaint about the constitutionality or
trial court’s authority to amend his existing commitment order so that it conformed
to the Legislature’s changes to the civil commitment program). We overrule his
second issue.
Conclusion
Having overruled all of Dodson’s issues on this appeal, we affirm the trial
court’s judgment.
AFFIRMED.
________________________________ CHARLES KREGER Justice
Submitted on October 14, 2020 Opinion Delivered July 15, 2021
Before Kreger, Horton and Johnson, JJ.