in Re Commitment of Johnny Yaw

• Court: Court of Appeals of Texas
• Decided: August 15, 2013
• Docket: 09-12-00413-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-12-00413-CV ________________

IN RE COMMITMENT OF JOHNNY YAW

__________________________________________________________________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 07-02-02126 CV __________________________________________________________________

MEMORANDUM OPINION

In November 2007, the trial court rendered an agreed final judgment and an

order civilly committing Johnny Yaw 1 for outpatient treatment and supervision

pursuant to the sexually violent predator statute. See Tex. Health & Safety Code

Ann. §§ 841.001-.151 (West 2010 & Supp. 2012). The order required Yaw to

reside in Tarrant County, Texas. On July 26, 2012, in response to a motion to

modify filed by the Office of Violent Sex Offender Management (OVSOM), the

trial court modified the judgment and civil commitment order to require that Yaw

1 On some documents in the record, Yaw’s first name is spelled “Johnnie[.]” 1 “reside in a Texas residential facility under contract with the Office of Violent Sex

Offender Management (OVSOM) or at another location or facility approved by the

OVSOM.” 2 Yaw is one of many persons affected by similar modification orders

signed by the trial court on July 26. Yaw asserts three appellate issues challenging

the modification order. Because the order is not appealable and mandamus relief is

not warranted, we dismiss Yaw’s appeal.

The trial court’s July 26 order modified a requirement of Yaw’s SVP

treatment without finally disposing of the commitment case and no interlocutory

appeal is statutorily authorized; thus, Yaw’s notice of appeal fails to invoke our

appellate jurisdiction. See In re Commitment of Cortez, No. 09-12-00385-CV, ___

S.W.3d ___, 2013 Tex. App. LEXIS 7854, at **5-6 (Tex. App.—Beaumont June

27, 2013, no pet. h.) (not yet released for publication). However, Yaw asks that we

alternatively consider his brief as a request for mandamus relief. For the reasons

stated in Cortez, we will address Yaw’s issues as a mandamus petition. See id. at

**6-8.

2 In 2011, operation of the SVP treatment program transferred from the Council on Sex Offender Treatment to OVSOM. See Act of May 30, 2003, 78th Leg., R.S., ch. 347, § 16, 2003 Tex. Gen. Laws 1505, 1514, amended by Act of May 23, 2011, 82nd Leg., R.S., ch. 1201, § 3, 2011 Tex. Sess. Law Serv. 3197, 3199 (current version at Tex. Health & Safety Code Ann. § 841.002(4) (West Supp. 2012)). 2 In issues one and two, Yaw challenges the trial court’s refusal to allow

counsel to make objections during the modification proceedings, consideration of

the motion to modify and objections on submission, and refusal to allow Yaw to

communicate with his counsel or present evidence during the proceedings. Yaw

also asserts within issue two that because the State had not filed a written motion to

modify, no motion to modify was properly before the trial court. Yaw further

contends that the State must “actually serve a complete and accurate copy of a

pleading upon the individual whose commitment order the State intends to modify

and his attorney.”

As we have previously explained, the trial court may modify SVP

commitment requirements “‘at any time after notice to each affected party to the

proceedings and a hearing.’” Id. at *8 (quoting Tex. Health & Safety Code Ann. §

841.082(e) (West Supp. 2012)). Yaw received notice through counsel, appeared

before the trial court after filing written objections to OVSOM’s motion to modify,

and personally appeared in court when the trial court modified the civil

commitment order. See id. at **8-10. Moreover, because of the limited

administrative purpose of modification to conform to changes made by the

Legislature, the opportunity to be heard through written submission alone does not

violate the SVP statute or due process. Id. at *11. Yaw has not shown what his

3 unaddressed objections would have been, or that a contemporaneous objection was

necessary to preserve error. See id. at *13.

Yaw joined motions filed on behalf of the affected men and was present at

the hearing on the motion to modify. The trial court’s July 26 order merely

substituted the newly-created entity, OVSOM, in place of the former entity, CSOT,

because OVSOM assumed CSOT’s duties, effective September 1, 2011. See Act of

May 23, 2011, 82nd Leg., R.S., ch. 1201, § 19(a)-(c), 2011 Tex. Sess. Law Serv.

3197, 3203. The record demonstrates that Yaw was aware that the trial court was

going to make a technical change in the residency requirement to reflect that upon

Yaw’s release, OVSOM would provide his housing. We do not find it necessary to

command the trial court to vacate its order of July 26 and issue a new order after

conducting an evidentiary hearing. The order merely conformed Yaw’s

commitment requirements to reflect the change in agency made by the Legislature

the previous year. See generally Tex. Gov’t Code Ann. §§ 420A.001-.011 (West

2012); Tex. Health & Safety Code Ann. §§ 841.002, 841.007, 841.021-.023,

841.082-.084 (West Supp. 2012).

In issue three, Yaw argues that the modification procedure forces civilly

committed persons to reside in locked residential facilities where conditions are

punitive, in violation of due process. Along with numerous other civilly committed

4 persons, Yaw disavowed a constitutional challenge to the statute in the trial court.

See Cortez, 2013 Tex. App. LEXIS 7854, at *13. The trial court’s July 26 order did

not alter Yaw’s status to a more restrictive custody. See id.

Because we lack appellate jurisdiction, and Yaw’s complaints do not warrant

mandamus relief, we dismiss Yaw’s appeal.

APPEAL DISMISSED.

________________________________ STEVE McKEITHEN Chief Justice

Submitted on July 10, 2013 Opinion Delivered August 15, 2013 Before McKeithen, C.J., Gaultney and Kreger, JJ.