In re H.L.T.

549 S.W.3d 656
CourtCourt of Appeals of Texas
DecidedOctober 4, 2017
DocketNo. 10-17-00106-CV
StatusPublished
Cited by16 cases

This text of 549 S.W.3d 656 (In re H.L.T.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re H.L.T., 549 S.W.3d 656 (Tex. Ct. App. 2017).

Opinion

AL SCOGGINS, Justice

The State of Texas filed a petition to civilly commit Howard Lynn Thompson as a sexually violent predator under the Sexually Violent Predator Act. See TEX. HEALTH & SAFETY CODE ANN . §§ 841.001 -.051 (West 2017) (SVP statute). A jury found beyond a reasonable doubt that Thompson is a sexually violent predator. Id. § 841.003. The trial court entered a final judgment and order of civil commitment under the SVP statute. On appeal, Thompson raises four issues. Because we overrule all of Thompson's issues on appeal, we affirm the judgment of the trial court.

I. THE TRIAL COURT'S JURISDICTION

In his first issue, he argues that the trial court lacked jurisdiction to determine sexually violent predator status without first testing for psychopathy under section 841.023 of the Health and Safety Code. See id. § 841.023.

A. Applicable Law

As noted above, section 841.023 of the Health and Safety Code is the basis for Thompson's first issue. That subsection provides as follows:

(a) Not later than the 60th day after the date of a recommendation under Section 841.022(c), the Texas Department of Criminal Justice shall assess whether the person suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence. To aid in the assessment, the department shall use an expert to examine the person. The department may contract for the expert services required by this subsection. The expert shall make a clinical assessment based on testing for psychopathy, a clinical interview, and other appropriate assessments and techniques to aid the department in its assessment.
(b) If as a result of the assessment the Texas Department of Criminal Justice believes that the person suffers from a behavioral abnormality, not later than *659the 60th day after the date of a recommendation under Section 841.022(c) the department shall give notice of that assessment and provide corresponding documentation to the attorney representing the state for the county in which the person was most recently convicted of a sexually violent offense.

Id.

B. Discussion

Here, the Texas Department of Criminal Justice ("TDCJ") retained Dr. Turner, a psychologist, to evaluate Thompson to assist in the determination of whether to refer the case to the attorney representing the state, in accordance with section 841.023 of the Health and Safety Code. See id. The record evidence shows that Thompson did not fully cooperate with Dr. Turner; therefore "Dr. Turner's evaluation was not as complete as he would have liked for it to be." And as a result of Thompson's failure to fully cooperate, Dr. Turner was unable to make a determination as to whether Thompson has "full-blown psychopathy, although he did note the traits."

It is this failure to complete the psychopathy evaluation that Thompson uses to assert that the trial court lost jurisdiction over the case. Specifically, Thompson argues the following, without citation to authority:

Thompson does not allege that a failure to meet the sixty day requirement deprived the trial court of jurisdiction.... Since the psychopathy testing requirement goes to the very heart of the question of what differentiates an SVP candidate from a typical recidivist sex offender, the legislature mandated that it be performed and failure to do the testing at some point prior to trial deprives the trial court of jurisdiction to proceed further until such testing is either completed, or rejected by a defendant who is subject to penalties as a person on trial under the statute.

A review of case law shows that the Beaumont Court of Appeals has rejected Thompson's contention. See, e.g., In re Commitment of Ochoa , No. 09-15-00486-CV, 2016 WL 5417441, at *3, 2016 Tex. App. LEXIS 10652, at *7 (Tex. App.-Beaumont Sept. 29, 2016, pet. denied) (mem. op.); In re Commitment of Alvarado , No. 09-13-00217-CV, 2014 WL 1285136, at *2-3, 2014 Tex. App. LEXIS 3343, at *6 (Tex. App.-Beaumont Mar. 27, 2014, pet. denied) (mem. op.). Specifically, the Beaumont Court of Appeals stated:

Whether or not the expert who performs the "clinical assessment" finds that the inmate has a behavioral abnormality, the expert's finding from the clinical assessment is not a jurisdictional issue. The plain language of the statute states that "[t]o aid in the assessment, the department ... shall use an expert to examine the person[,]" and "[t]he expert shall make a clinical assessment ... to aid the department in its assessment. TEX. HEALTH & SAFETY CODE ANN . § 841.023(a).... The plain language of the statute does not specifically mandate that the "clinical assessment" must conclude that the person has a behavioral abnormality before the State may proceed with the civil commitment. Accordingly, the text does not indicate that the Legislature intended for the provision to be jurisdictional.

In re Commitment of Alvarado , 2014 WL 1285136, at *2-3, 2014 Tex. App. LEXIS 3343, at *6 ; see In re Commitment of Evers , 420 S.W.3d 81, 85 (Tex. App.-Beaumont 2012, pet. denied) ("Moreover, when the Legislature adopts a provision that imposes a requirement but does not specify whether the failure to satisfy that requirement defeats the court's jurisdiction, a reviewing court presumes that the *660Legislature did not intend to make the provision jurisdictional." (citing In re United Servs. Auto Ass'n , 307 S.W.3d 299, 307 (Tex. 2010) )). We agree with the reasoning of the Beaumont Court of Appeals and, therefore, reject Thompson's contention that the trial court lacked jurisdiction to determine whether he is a sexually violent predator without first testing for psychopathy. We overrule Thompson's first issue.

II. TESTING FOR PSYCHOPATHY

In his second issue, Thompson contends that his initial, pre-petition, pre-counsel refusal to cooperate with an expert interviewer did not excuse the State's failure to have a testifying expert perform a psychopathy assessment. Specifically, he complains that the State's testifying expert, Dr. Sheri Gaines, a medical doctor that is board certified in psychiatry, was required to test for psychopathy because Dr. Turner was unable to complete the evaluation.

In this issue, Thompson relies heavily on section 841.061(f) of the SVP statute, which provides the following, in relevant part:

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Bluebook (online)
549 S.W.3d 656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hlt-texapp-2017.