in Re Commitment of Jose Salazar

• Court: Court of Appeals of Texas
• Decided: August 15, 2013
• Docket: 09-12-00421-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-12-00421-CV ____________________

IN RE COMMITMENT OF JOSE SALAZAR

______________________________________________________ _

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 06-09-09200 CV _______________________________________________________ _

MEMORANDUM OPINION

In April 2007, the trial court rendered a final judgment and an order civilly

committing Jose Salazar 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 Salazar 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 Salazar reside in a Texas

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

1 approved by OVSOM. Salazar is one of several persons affected by similar orders

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

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

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

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

treatment without finally disposing of the commitment case and no interlocutory

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

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

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

**6-8.

In issues one and two, Salazar complains that his counsel was not allowed to

make objections during the modification proceedings, he was not allowed to meet

with his counsel, he was not allowed to testify or present evidence, the trial court

considered the motion to modify and objections on submission, and that the State

must serve a copy of the pleading upon both the person whose commitment order

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

2 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)). Salazar

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.

Salazar 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, Salazar 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, Salazar disavowed a constitutional challenge to the statute in the trial

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

restrictive custody. See id. Because we lack appellate jurisdiction, and Salazar’s

complaints do not warrant mandamus relief, we dismiss Salazar’s appeal.

APPEAL DISMISSED.

3 ________________________________ STEVE McKEITHEN Chief Justice

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