in Re Commitment of Jose Ovalle

• Court: Court of Appeals of Texas
• Decided: August 15, 2013
• Docket: 09-12-00409-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-12-00409-CV ____________________

IN RE COMMITMENT OF JOSE OVALLE

______________________________________________________ _

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 03-06-04437 CV _______________________________________________________ _

MEMORANDUM OPINION

In November 2003, the trial court rendered a final judgment and an order

civilly committing Jose Ovalle 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 Ovalle to reside in

Harris 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 Ovalle reside in

a Texas residential facility under contract with OVSOM or at another location or

1 facility approved by OVSOM. Ovalle is one of several persons affected by similar

orders signed by the trial court on July 26. Ovalle asserts four appellate issues

challenging the modification order. Because the order is not appealable and

mandamus relief is not warranted, we dismiss Ovalle’s appeal.

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

treatment without finally disposing of the commitment case and no interlocutory

appeal is statutorily authorized; thus, Ovalle’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). Ovalle asks that we

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

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

**6-8.

In issues one and two, Ovalle complains of the trial court’s modification

procedures on grounds that Ovalle’s counsel was not allowed to make objections

during the proceedings, Ovalle was not allowed to meet with counsel, Ovalle was

not allowed to testify or present evidence, the trial court considered the motion to

modify and objections on submission, and the State must serve “an accurate,

complete, and signed” pleading upon both the person whose commitment order the

2 State seeks to modify and the person’s counsel. In Cortez, we explained that 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)). Ovalle 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. Ovalle

has not shown what his unaddressed objections would have been, or that a

contemporaneous objection was necessary to preserve error. See id. at *13.

In issue three, Ovalle 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

persons, Ovalle disavowed a constitutional challenge to the statute in the trial

court. See id. The trial court’s July 26 order did not alter Ovalle’s status to a more

restrictive custody. See id.

3 In issue four, Ovalle contends that he was civilly committed before section

841.082(a)(1)’s enactment date. Section 841.082(a)(1) of the SVP statute provides

that a civil commitment order must require the person to reside in a Texas

residential facility under contract with OVSOM or at another location or facility

approved by OVSOM. Tex. Health & Safety Code Ann. § 841.082(a)(1) (West

Supp. 2012). The provision’s effective date is September 1, 2005. See Act of May

23, 2005, 79th Leg., R.S., ch. 849, § 9, 2005 Tex. Gen. Laws 2890, 2893.

As we explained in Cortez, “the 1999 SVP statute permitted the trial court to

order a committed person to reside in a particular place and allowed the

commitment requirements to be modified.” Cortez, 2013 Tex. App. LEXIS 7854,

at *16; see Act of May 30, 1999, 76th Leg., R.S., ch. 1188, § 4.01, sec. 841.082(a),

1999 Tex. Gen. Laws 4147 (amended 2003, 2005, 2007, 2011) (current version at

Tex. Health & Safety Code Ann. § 841.082(a) (West Supp. 2012)). The 2003

statute likewise gave the trial court the authority to modify commitment

requirements. Cortez, 2013 Tex. App. LEXIS 7854, at **15-16; see Act of May

30, 2003, 78th Leg., R.S., ch. 347, §§ 24, 32, sec. 841.082(b), 2003 Tex. Gen.

Laws 1505, 1517, 1519 (amended 2005, 2007, 2011) (current version at Tex.

Health & Safety Code Ann. § 841.082 (e) (West Supp. 2012)). Thus, under the law

in effect for pre-existing orders, the trial court had the discretion to modify the

4 residency requirement to accomplish what the 2005 amendment to the SVP statute

required. Cortez, 2013 Tex. App. LEXIS 7854, at *16; see Act of May 23, 2005,

79th Leg., R.S., ch. 849, § 3, sec. 841.082(a)(1), 2005 Tex. Gen. Laws 2890, 2891

(amended 2007, 2011) (current version at Tex. Health & Safety Code Ann. §

841.082(a)(1) (West Supp. 2012)). The trial court could in its discretion order

Ovalle to live in an OVSOM-approved facility and did not abuse its discretion by

doing so. See Cortez, 2013 Tex. App. LEXIS 7854, at **16-17. Because we lack

appellate jurisdiction, and Ovalle’s complaints do not warrant mandamus relief, we

dismiss Ovalle’s appeal.

APPEAL DISMISSED.

________________________________ STEVE McKEITHEN Chief Justice

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