in Re David Dodson

• Court: Court of Appeals of Texas
• Decided: January 24, 2013
• Docket: 09-12-00595-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-12-00595-CV _________________

IN RE DAVID DODSON

________________________________________________________________________

Original Proceeding ________________________________________________________________________

MEMORANDUM OPINION

In a mandamus petition, David Dodson seeks to compel the trial court to (1)

vacate the trial court’s order of December 10, 2008, which committed Dodson as a

sexually violent predator pursuant to a judgment that was subsequently reversed on

appeal, and (2) release Dodson from the custody of the Office of Violent Sex Offender

Management (OVSOM). See In re Commitment of Dodson, 311 S.W.3d 194, 204 (Tex.

App.—Beaumont 2010, pet. denied). We deny mandamus relief.

Issue one contends the trial court abused its discretion by refusing to rule on

Dodson’s Motion to Vacate Order of Civil Commitment. “Mandamus will issue when

there is a legal duty to perform a non-discretionary act, a demand for performance, and a

refusal.” O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992). “A trial

1 court is required to consider and rule upon a motion within a reasonable time.” Safety–

Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig.

proceeding). “Determining what time period is reasonable is not subject to exact

formulation.” In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig.

proceeding). “Moreover, no bright line separates a reasonable time period from an

unreasonable one.” Id.

Dodson does not say when he filed his motion, and he includes neither the motion

nor the State’s response in the mandamus record. See Tex. R. App. P. 52.3(k)(1)(A) (the

appendix must contain a certified or sworn copy of “any other document showing the

matter complained of”). The trial court conducted an evidentiary hearing on the motion

on November 7, 2012. The trial court took the motion under advisement and evidently

has not ruled on the motion.

Dodson testified that he was committed to a halfway house through the OVSOM

program and is currently residing there. Dodson stated that he is currently on parole, and

that he will be on parole until 2058. Dodson claimed he spoke with his parole officer and

the officer would allow him to request a transfer of residence to his mother’s home in

Arlington but that “she would put in the plan for approval once the Court had notified her

of its ruling if it would come in my favor.” Dodson offered no testimony from the parole

officer and no documentation from the Board of Pardons and Paroles. Assuming the trial

court found Dodson’s testimony to be credible, it is possible that for purposes of parole

2 any decision on a transfer of his residence awaits the retrial of the State’s SVP

commitment petition. Dodson has not shown that the trial court has left the motion

pending for an unreasonable time. We overrule issue one.

Issue two contends the trial court abused its discretion by refusing to permit an

oral hearing on Dodson’s Motion to Enforce the Order of the Court of Appeals. Dodson

omitted this motion from his mandamus record, but he provided submission orders that

indicate that the trial court took the motion under advisement by written submission on

November 16, 2012, and that on December 5, 2012 the trial court set for submission

Dodson’s Objection To Court’s Refusal To Rule On Respondent’s Motion To Vacate The

Order of Civil Commitment and Objection To The Court’s Refusal To Hear

Respondent’s Motion To Enforce The Order Of Appeals For The Ninth District Of The

State of Texas. Considering the trial court conducted an evidentiary hearing on Dodson’s

first motion, Dodson has not shown that the trial court abused its discretion by failing to

schedule evidentiary hearings on what appear to be reiterations of the same or similar

matters addressed in the hearing of November 7, 2012. See In re Prudential Ins. Co. of

Am., 148 S.W.3d 124, 135 (Tex. 2004) (the relator must show that the trial court abused

its discretion). We overrule issue two.

Issue three contends the trial court abused its discretion by instituting local rules

that have not been approved by the Texas Supreme Court. The “local rules” Dodson

claims deny access to the court by Dodson’s counsel, the State Council for Offenders,

3 appear to be guidelines for scheduling hearings and presenting motions. Dodson has not

shown that the trial court requires a procedure that is contrary to the Rules of Civil

Procedure. Although he argues that he “is prohibited from contacting the Court to

determine the Court’s ruling in a fashion which would create a record of the Court’s

abuse and bias” Dodson neither identifies a Rule of Civil Procedure that has been

violated by the trial court nor shows this Court that the trial court has effectively denied

access to State Counsel for Offenders. See generally Tex. R. App. P. 52.3(g) (“Every

statement of fact in the petition must be supported by citation to competent evidence

included in the appendix or record.”). We overrule issue three.

Dodson argues that unless mandamus issues to require the trial court to rule

immediately on Dodson’s motion to vacate the commitment order he will be unlawfully

confined from October 11, 2012 until February 4, 2013. Dodson is on parole, however,

and he has not established that the State lacks the power to order him to reside at the

halfway house. See, e.g., Tex. Gov’t Code Ann. § 508.181(b)(2)(D) (West 2012). The

petition for writ of mandamus is denied.

PETITION DENIED.

PER CURIAM

Submitted on January 2, 2013 Opinion Delivered January 24, 2013 Before McKeithen, C.J., Gaultney and Horton, JJ.