in Re Lonnie Kade Welsh

• Court: Court of Appeals of Texas
• Decided: August 25, 2022
• Docket: 09-22-00262-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00262-CV __________________

IN RE LONNIE KADE WELSH

__________________________________________________________________

Original Proceeding 435th District Court of Montgomery County, Texas Trial Cause No. 15-01-00659 __________________________________________________________________

MEMORANDUM OPINION

In a mandamus petition, Lonnie Kade Welsh complains that the trial court

failed to rule on Welsh’s Petition for Movement Between Programming Tiers. See

Tex. Health & Safety Code Ann. § 841.0834(b).1 We deny mandamus relief. See

Tex. R. App. P. 52.8(a).

1Welsh failed to identify the Real Party in Interest and its counsel of record in his petition. See Tex. R. App. P. 52.3(a). Additionally, he failed to certify that he served a copy of the petition on the Real Party in Interest. See Tex. R. App. P. 9.5. We use Rule 2, however, to look beyond these deficiencies to reach an expeditious result. See Tex. R. App. P. 2.

1 Welsh is subject to a civil commitment order under Chapter 841 of the Texas

Health and Safety Code. See Tex. Health & Safety Code Ann. §§ 841.001-.153 (the

“SVP Act”). The SVP Act established a tiered program administered by the Texas

Civil Commitment Office (“TCCO”) for the long-term treatment of persons who

have been civilly committed as sexually violent predators. See id. As the committing

court, the 435th District Court retains subject matter jurisdiction over a petition to

modify the civil commitment order under Subchapter E of the SVP Act. See Tex.

Civil Commitment Office v. Hartshorn, 550 S.W.3d 319, 329-30 (Tex. App.—Austin

2018, no pet.). Subchapter E of the SVP Act provides for movement between

programming tiers. See Tex. Health & Safety Code Ann. § 841.0834. Section

841.0834(b) states:

Without the office’s approval, a committed person may file a petition with the court for transfer to less restrictive housing and supervision. The court shall grant the transfer if the court determines that the transfer is in the best interests of the person and conditions can be imposed that adequately protect the community. A committed person who files a petition under this subsection shall serve a copy of the petition on the office.

Tex. Health & Safety Code Ann. § 841.0834(b).

Generally, a trial court has a ministerial duty to rule on a party’s properly filed

motion within a reasonable time after the motion is submitted to the trial court or

after the party’s request for a ruling. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268,

269 (Tex. App.—San Antonio 1997, orig. proceeding). In this case, however, Welsh

2 has not shown that the trial court has failed to properly exercise its ministerial duty

to rule on Welsh’s petition for movement between treatment tiers.

Welsh filed his petition with the trial court on May 2, 2022. He certified that

he mailed a copy of the petition to an Amarillo address for the Special Prosecution

Unit (“SPU”) and to the Director of the TCCO. On the same day he filed a notice to

the trial court that Welsh had filed a motion that required a ruling or a hearing. In

this Court, Welsh has neither shown that the State, acting through the SPU or the

TCCO, filed a response to his petition, nor that Welsh proved to the trial court that

the State had been properly served with the petition but had failed to file a timely

response. Welsh also provides no argument explaining why the elapsed time of

slightly over three months between the filing of the petition for movement between

tiers and the filing of the mandamus petition is unreasonably long. See In re Ridley,

No. 03-22-00259-CV, 2022 WL 1492528, at *1 (Tex. App.—Austin May 12, 2022,

orig. proceeding) (mem. op.) (a delay of less than three months is not unreasonable).

When Welsh filed his petition with the district court the civil commitment

case was on appeal from an order denying Welsh’s unauthorized petition for release

from the civil commitment order. See In re Commitment of Welsh, ___ S.W.3d ___,

No. 09-21-00303-CV, 2022 WL 2975688 (Tex. App.—Beaumont July 28, 2022, no

pet. h.) (not yet reported). This Court recently dismissed the appeal for lack of

appellate jurisdiction, but our mandate has not issued. See id. The trial court could

3 reasonably wait for the outcome of the appeal that could result in Welsh’s release

from the civil commitment order before considering whether to grant Welsh’s

request for a transfer between treatment tiers.

We deny the petition for a writ of mandamus because the relator failed to

establish an abuse of discretion by the trial court.

PETITION DENIED.

PER CURIAM

Submitted on August 24, 2022 Opinion Delivered August 25, 2022

Before Golemon, C.J., Horton and Johnson, JJ.