in Re Commitment of Lonnie Kade Welsh

• Court: Court of Appeals of Texas
• Decided: July 28, 2022
• Docket: 09-21-00303-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00303-CV __________________

IN RE COMMITMENT OF LONNIE KADE WELSH

__________________________________________________________________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 15-01-00659-CV __________________________________________________________________

OPINION

The Texas statute authorizing the State to civilly commit sexually

violent predators (the SVP statute) gives individuals committed to

treatment the right to file an unauthorized petition for release “on a

person’s commitment and annually after that commitment.” 1 Yet

1Tex. Health & Safety Code Ann. § 841.122 (“On a person’s commitment and annually after that commitment, the office shall provide the person with written notice of the person’s right to file with the court and without the office’s authorization a petition for release.”). 1 Subchapter G of the SVP statue, which includes the provisions of the

statute addressing unauthorized petitions for release, is silent on

whether a party may appeal from a ruling made by a lower court on an

unauthorized petition for release filed under Subchapter G, Chapter

841. 2 Sitting en banc, we must decide whether we have jurisdiction over

Welsh’s appeal. And to resolve that question, we must decide (1) whether

the trial court’s order denying Welsh’s petition is final or otherwise

appealable and (2) whether an opinion this Court issued seven years ago

holding that an order denying an unauthorized petition for release is

appealable should be overruled. 3

Background

In 2015, the trial court signed a final judgment and order

committing Lonnie Kade Welsh to treatment and supervision as a

sexually violent predator. 4 Around five years after the trial court

committed Welsh for treatment, Welsh filed an unauthorized petition for

2Id. §§ 841.121-.124 (Subchapter G, Petition for Release). 3In re Commitment of Keen, 462 S.W.3d 524, 526 (Tex. App.— Beaumont 2015, no pet.). 4See In re Commitment of Welsh, No. 09-15-00498-CV, 2016 WL

4483165 (Tex. App.—Beaumont Aug. 25, 2016, pet. denied) (mem. op.); see also Tex. Health & Safety Code Ann. §§ 841.001-.153. 2 release. In response to Welsh’s unauthorized petition, the State argued

that the records relevant to Welsh’s treatment show that he had not yet

progressed to the point that his behavioral abnormality had changed

such that he was no longer likely to engage in a predatory act of sexual

violence. In July 2021, the trial court denied Welsh’s unauthorized

petition for release. 5 The order the trial court signed recites that based

on the pleadings and evidence in the file, the trial court found Welsh’s

petition frivolous. The order also states that probable cause does not exist

to believe that Welsh’s behavioral abnormality has changed to the extent

that he is no longer likely to engage in a predatory act of sexual violence.

After the trial court signed the order, Welsh filed a notice of appeal.

On appeal, the State argues this Court lacks appellate jurisdiction

over Welsh’s appeal for two reasons: (1) the order denying Welsh’s

petition is not a final judgment from which an appeal is authorized by

law; and (2) nothing in the SVP statute authorizes appellate courts to

5See Tex. Health & Safety Code Ann. § 841.123(c) (The judge shall deny without a hearing a petition for release filed without the authorization of the Texas Civil Commitment Office “if the petition is frivolous” or “the petitioner’s behavioral abnormality has not changed to the extent that the petition is no longer likely to engage in a predatory act of sexual violence.”). 3 entertain interlocutory appeals from rulings by trial courts in

proceedings conducted under Subchapter G, Chapter 841, the subchapter

that addresses unauthorized petitions for release. Welsh responds by

pointing to this Court’s ruling seven years ago in In re Commitment of

Keen holding that rulings on unauthorized petitions for release are

appealable. Welsh argues this Court is bound by its holding in Keen. 6

Analysis

In civil cases, the legislature limits an appellate court’s general

jurisdiction to appeals from final judgments of the district and county

courts in the appellate court’s district. 7 Otherwise, appellate review of a

trial court’s interlocutory order must be authorized by a specific statute.8

“Most post-judgment orders made to carry into effect or enforce a

judgment are not appealable because these orders are not themselves a

final judgment or an order for which an appeal is statutorily authorized.”9

6Keen, 462 S.W.3d at 526. 7See Tex. Gov’t Code Ann. § 22.220(a); Tex. Civ. Prac. & Rem. Code

Ann. § 51.012. 8See Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d

725, 729 (Tex. 2019); see also Tex. Civ. Prac. & Rem. Code Ann. § 51.014. 9Sunnyland Dev., Inc. v. Shawn Ibrahim, Inc., 597 S.W.3d 1, 2 (Tex.

App.—Houston [1st Dist.] 2020, no pet.). 4 Courts apply an exception to the one final judgment rule for probate

and guardianship cases because multiple final judgments may be

rendered on discrete issues in the proceedings that are considered as final

for purposes of whether appellate jurisdiction exists over the judgment

in the appeal. 10 The exception exists because probate proceedings consist

of a continuing series of events and intermediate decisions may harm

later phases of the proceedings.11 Thus, an order disposing of all issues

and all parties in a particular phase of the proceeding is final and

appealable even when the proceeding remains pending on other issues.12

An appeal may be taken if there is an express statute allowing an appeal

or upon the conclusion of a discrete phase of the proceeding. 13

Welsh points to Keen, an appeal the Court decided in 2015, to

support his argument that we have jurisdiction over his appeal from an

order denying his unauthorized petition for release. 14 In Keen, a

psychologist had prepared a report in which he concluded that Keen no

10Inre Guardianship of Jones, 629 S.W.3d 921, 925 (Tex. 2021). 11In re Estate of Davidson, 153 S.W.3d 301, 304 (Tex. App.— Beaumont 2004, pet. denied). 12Jones, 629 S.W.3d at 925. 13Id.; Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995). 14Keen, 462 S.W.3d at 524.

5 longer suffered from a behavioral abnormality that made him likely to

engage in a predatory act of sexual violence. Yet the agency then in

charge of administering SVP commitments, the Office of Violent Sex

Offender Management, asked the trial court to require Keen to remain

in the civil commitment program and continue in the program under his

existing restrictions. 15 Even though Keen filed a report from an expert to

support his petition who suggested that Keen no longer represented a

significant risk of reoffending, the trial court denied Keen’s petition

without conducting an evidentiary hearing, finding Keen’s petition

frivolous. 16 In deciding that Keen could appeal, we noted the general rule

that appeals are available only from final judgments, but we reasoned

that the trial court’s order on Keen’s petition ended a discrete phase of

the SVP proceeding—the unauthorized petition for release phase—

because it disposed of the claims raised in his petition for release. 17

To be sure, when Keen was initially committed in May 2002 as a

sexually violent predator, Keen could have appealed from the judgment

15Id. at 527. 16Id. 17Id. at 526. 6 committing him as a sexually violent predator, but did not do so. 18 And

when Keen later filed an unauthorized petition and appealed from the

trial court’s ruling denying his unauthorized petition for release, the law

was unclear about whether the legislature intended rulings on

unauthorized petitions to function as final judgments as to the issues the

petitioners raised in their unauthorized petitions. Although raised in a

case involving the enforcement of a judgment in a dispute addressing the

division of some property, the Texas Supreme Court clarified the effect of

post-judgment orders on earlier judgments in a decision it issued in

2018. 19 In that opinion, McFadin v. Broadway Coffeehouse, LLC, the

Texas Supreme Court explained that “when a final judgment exists, a

subsequent order that has no effect except to enforce provisions of the

judgment does not qualify as another final judgment subject to appeal.”20

In SVP cases, an order denying a petitioner’s unauthorized petition

for release imposes no obligation beyond the obligations the trial court

18Tex. Civ. Prac. & Rem. Code Ann. § 41.012 (allowing a person to appeal from a final judgment); Keen, 462 S.W.3d at 525. 19McFadin v. Broadway Coffeehouse, LLC, 539 S.W.3d 278, 281, 284

(Tex. 2018). 20Id. at 284.

7 imposed on the petitioner in its original judgment and order of civil

commitment. In an unauthorized petition for release, the petitioner is

seeking his or her release from the obligations imposed by a final

judgment, a final judgment that controls the conditions that apply to the

individual’s civil commitment as a sexually violent predator. And when

the trial court considered Keen’s petition for release, it determined

probable cause did not exist to show that his behavioral abnormality had

changed, decisions that left the final judgment and order of civil

commitment the trial court signed in 2002 in Keen’s case intact. Now

with the benefit of McFadin, we can see that Keen’s unauthorized

petition for release had no effect on the trial court’s earlier final

judgment, so the order denying the unauthorized petition did not “qualify

as another final judgment subject to appeal.” 21

Considering anew whether an order denying an unauthorized

petition for release is a final and appealable judgment, we conclude we

exercised appellate jurisdiction over Keen’s appeal in error. In

contemplating whether Keen should be overruled or followed under

21Id.

8 principles of stare decisis, we consider whether doing so would serve the

purposes of legitimacy, efficiency, and fairness. As applied here, that

means serving what the legislature likely intended in the SVP statute,

providing stability in precedent about what is appealable under the SVP

statute, and whether the interpretation we have placed on the provision

is fair based on statutory principles of construction. 22

Turning first to the question of legitimacy, we look to the text of the

SVP statute and the section addressing unauthorized petitions for

release. We note the section addressing unauthorized petitions does not

include an appeal from the ruling the trial court makes on the petition.23

And while the legislature did provide for appeals for around fifteen types

of interlocutory orders, the provisions that create appellate jurisdiction

over these interlocutory orders have no application to orders signed by

trial courts under Chapter 841. 24

22Mitschke v. Borromeo, No. 21-0326, 2022 WL 1510317, at *9-12 (Tex. May 13, 2022) (not yet reported). 23See Tex. Health & Safety Code Ann. § 841.124. 24Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (authorizing appeals

from fifteen separate types of interlocutory orders). 9 Turning next to the issue of efficiency, the opinion we issued in Keen

has created a split in the intermediate courts of appeal on the question of

whether rulings by trial courts on Chapter 841 petitions for release are

appealable. 25 In 2019, the First Court of Appeals held that the ruling was

interlocutory and since it was not a ruling from a final judgment was

unappealable. 26 In 2022, the Sixth Court of Appeals agreed with

Dunsmore and concluded the trial court’s ruling denying the petitioner’s

“unauthorized petition for release is an unappealable, interlocutory

order.” 27 Thus, rather than create certainty, invoking stare decisis and

continuing to follow Keen would perpetuate a split of authority among

the Courts of Appeals and would not promote efficiency or legitimacy.

And as to stability, no courts have followed Keen.

Turning last to the question of fairness, we note that Welsh could

seek mandamus relief if he filed and proved in a petition for mandamus

that the trial court abused its discretion in denying his unauthorized

25In re Commitment of Renshaw, No. 06-22-00034-CV, 2022 WL 2069224, at *2 (Tex. App.—Texarkana June 9, 2022, no pet. h.) (mem. op.); In re Commitment of Dunsmore, No. 01-18-00183-CV, 2019 WL 2180446, at *2 (Tex. App.—Houston [1st Dist.] May 21, 2019, no pet.). 26In re Commitment of Dunsmore, 2019 WL 2180446, at *2. 27In re Commitment of Renshaw, 2022 WL 2069224, at *2.

10 petition by finding it frivolous. 28 But the case before us here is an appeal

and not a petition for mandamus, so the question we must decide is

whether we have appellate jurisdiction over Welsh’s appeal since he is

not seeking mandamus relief. In addressing fairness, we also note that

among the procedural remedies the legislature provided individuals who

have been committed for treatment, the civil commitment statute

requires courts to conduct a biennial review of sexually violent predator

commitment cases under the procedures in Subchapter F, Chapter 841.29

The biennial review procedure in Subchapter F requires that a trial court

set a hearing on an individual’s case should the trial court determine in

the biennial review hearing one of two things: (1) the requirements that

have been imposed on the person who has been committed to treatment

should be modified; or (2) “probable cause exists to believe that the

28See generally CMH Homes v. Perez, 340 S.W.3d 444, 452–54 (Tex. 2011) (holding that under appropriate circumstances, an interlocutory trial court order may be reviewed by mandamus); In re Richards, No. 09- 14-00243-CV, 2014 WL 3697027, at *1 (Tex. App.—Beaumont July 24, 2014, orig. proceeding [mand. denied]) (mem. op.) (considering mandamus challenge to an order denying an evidentiary hearing in a Subchapter F biennial review proceeding). 29See Tex. Health & Safety Code Ann. §§ 841.101-.103 (Subchapter

F, requiring the review of the individual’s commitment as a sexually violent predator on a biennial basis.). 11 person’s behavioral abnormality has changed to the extent the person is

no longer likely to engage in a predatory act of sexual violence.” 30

Finally, we have rejected the right of an SVP to file successive

appeals beyond the initial appeal available from the judgment of

commitment when deciding whether the Court could exercise appellate

jurisdiction over the trial court’s order denying the SVP’s request for a

hearing in a post-judgment procedure known as a biennial review.31 In

deciding we did not have jurisdiction to hear that appeal, we observed

the SVP statute provides several avenues for judicial review where a sexually violent predator has been committed to long- term supervision and treatment. The right of appeal is expressly granted in section 841.062(a) following the original determination of predator status; in addition, the constitutional protections that apply to the initial commitment proceeding attach if the trial court finds probable cause and conducts an adversarial hearing contemplated by section 841.103(c). 32

Simply put, individuals committed to treatment as sexually violent

predators have several avenues of procedural due process, and that

30Id. § 841.102(c). 31In re Commitment of Richards, 395 S.W.3d 905, 910 (Tex. App.— Beaumont 2013, pet. denied). 32Id. (citing Tex. Health & Safety Code Ann. §§ 841.062(a),

841.103(c)). 12 process includes judicial oversight regarding the necessity and terms of

their respective commitments. While the legislature chose not to make

each decision of district judges at each stage of these proceedings

reviewable in direct appeals, that does not mean the decisions trial

court’s make in these post-judgment proceedings are beyond review by

mandamus. After this Court decided Richards, other Courts of Appeals

followed Richards, agreeing that orders resulting from biennial review

hearings are not appealable. 33

Conclusion

No statute specifically authorizes a party to appeal from a trial

court’s ruling denying an unauthorized petition for release. Given our

conclusion that the trial court’s order denying Welsh’s petition does not

function as a final judgment, we conclude we lack appellate jurisdiction

over Welsh’s appeal. And because our conclusion in Welsh that appellate

jurisdiction does exist conflicts with our ruling in Keen, we overrule In re

Commitment of Keen so the law in the Ninth Appellate District aligns

33In re Commitment of Dunsmore, No. 01-21-00151-CV, 2022 WL 904441, at *1 (Tex. App.—Houston [1st Dist.] Mar. 29, 2022, no pet.); In re Commitment of Black, 594 S.W.3d 590, 593 (Tex. App.—San Antonio 2019, no pet.). 13 with the other Appellate Districts in Texas. 34 For the reasons explained

above, Welsh’s appeal is dismissed without reference to the merits of the

appeal.

APPEAL DISMISSED.

Per Curiam

Submitted on July 8, 2022 Opinion Delivered July 28, 2022

En banc

34See Keen, 462 S.W.3d at 525. 14