Stephen Patrick Black v. Marsha McLane, Executive Director of the Texas Civil Commitment Office

• Court: Court of Appeals of Texas
• Decided: March 23, 2021
• Docket: 07-19-00241-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-19-00241-CV ________________________

STEPHEN PATRICK BLACK, APPELLANT

V.

MARSHA MCLANE, EXECUTIVE DIRECTOR OF THE TEXAS CIVIL COMMITMENT OFFICE, APPELLEE

On Appeal from the154th District Court Lamb County, Texas Trial Court No. DCV-20031-18; Honorable Felix Klein, Presiding

March 23, 2021

MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Appellant, Stephen Patrick Black, proceeding pro se and in forma pauperis, filed

suit against Appellee, Marsha McLane, Executive Director of the Texas Civil Commitment

Office, and others, challenging the constitutionality of chapter 841 of the Texas Health and Safety Code. 1 McLane filed a plea to the jurisdiction, which the trial court granted,

and then dismissed Black’s suit without prejudice for lack of subject matter jurisdiction.

Black presents the following issues questioning the trial court’s order of dismissal: (1)

Lamb County has inherent jurisdiction over his constitutional claims; (2) a committing

court’s exclusive jurisdiction is limited to specific proceedings none of which encompass

constitutional challenges; and (3) interpreting the jurisdiction provision as granting the

committing court exclusive jurisdiction over constitutional challenges conflicts with the

restriction on jurisdiction over proceedings under section 841.085 of the Texas Health

and Safety Code. In toto, Black’s issues can be distilled into one complaint questioning

whether the Legislature intended that a civil commitment court retain exclusive jurisdiction

over a constitutional challenge to the commitment requirements of section 841.082.

McLane responds that Black’s suit is essentially a petition to modify the conditions of his

civil commitment under chapter 841 of the Code and that the intent of the Legislature is

clear that committing courts retain jurisdiction over such claims. By reply brief, Black

disputes McLane’s contentions. We agree with McLane and affirm.

BACKGROUND

Pursuant to a plea bargain, Black was convicted of indecency with a child in 2006

and was sentenced to twelve years confinement. In April 2016, he was civilly committed

after a jury found him to be a “sexually violent predator.” See TEX. HEALTH & SAFETY CODE

ANN. §§ 841.003, 841.081 (West 2017). The court that ordered his civil commitment is

the 274th District Court of Guadalupe County, Texas. Since that commitment, he has

been housed in the Civil Commitment Facility in Lamb County, Texas, and has filed

1 Chapter 841 is known as the Sexually Violent Predators Act. See §§ 841.001-.151 (West 2017

& Supp. 2020). 2 various suits and mandamus proceedings in courts having jurisdiction in both Guadalupe

and Lamb Counties. 2

In this most recent suit, Black filed a petition in the 154th District Court of Lamb

County, 3 asserting the Lamb County District Court had jurisdiction to entertain his

constitutional challenges to section 841.082(a)(4)(A)(ii), (iii) of the Texas Health and

Safety Code. See TEX. HEALTH & SAFETY CODE ANN. § 841.082(a)(4)(A)(ii), (iii) (West

Supp. 2020). The relevant portions of the statute he challenges on appeal provide as

follows:

(a) Before entering an order directing a person’s civil commitment, the judge shall impose on the person requirements necessary to ensure the person’s compliance with treatment and supervision and to protect the community. The requirements shall include:

***

(4) requiring the person to submit to appropriate supervision and:

(A) submit to tracking under a particular type of tracking service, if the person:

(ii) is in one of the two most restrictive tiers of treatment, as determined by the office; [or]

(iii) is on disciplinary status, as determined by the office . . . .

2A non-exhaustive list of those filings includes the following cases: In re Black, No. 07-20-00363- CV, 2021 Tex. App. LEXIS 1163 (Tex. App.—Amarillo Feb. 12, orig. proceeding); In re Commitment of Black, 594 S.W.3d 590 (Tex. App.—San Antonio 2019, no pet.); In re Black, No. 04-19-00107-CV, 2019 Tex. App. LEXIS 3900 (Tex. App.—San Antonio May 15, 2019, orig. proceeding); In re Black, No. 04-19- 00094-CV, 2019 Tex. App. LEXIS 1962 (Tex. App.—San Antonio March 13, 2019, orig. proceeding); In re Commitment of Black, No. 04-19-00001-CV, 2019 Tex. App. LEXIS 1019 (Tex. App.—San Antonio Feb. 13, 2019, no pet.) (mem. op.); In re Black, No. 04-18-00700-CV, 2018 Tex. App. LEXIS 9973 (Tex. App.— San Antonio Dec. 5, 2018, orig. proceeding); In re Commitment of Black, 522 S.W.3d 2 (Tex. App.—San Antonio 2017, pet. denied).

3 Black pleaded his suit as a class-action lawsuit; however, the record does not reflect that class

certification ever occurred.

3 By his suit, Black sought declaratory relief, an immediate preliminary injunction,

and a permanent injunction to have “these unconstitutional devices (GPS tracking

monitors) permanently removed.”4 Despite the requested relief, Black specifically

asserted he was not challenging the requirements of his civil commitment.

McLane responded with a plea to the jurisdiction alleging that the 154th District

Court of Lamb County lacked jurisdiction to entertain Black’s suit because essentially, the

remedy he sought was removal of the GPS tracking device—a modification of his

commitment requirements which could only be provided by the court that originally

ordered his civil commitment. McLane proposed that Black’s constitutional challenge was

simply a disguise for removal of the requirement that he wear a GPS tracking device.

After a brief hearing on McLane’s plea to the jurisdiction, at which Black testified,

the trial judge of the 154th District Court agreed the court had no jurisdiction to hear the

suit and it was dismissed without prejudice. The trial judge further announced that Black

was free to file his suit in Guadalupe County, the court of proper jurisdiction, to address

any amendments to his order of commitment. In lieu of refiling his claim in the 274th

District Court of Guadalupe County, Texas, Black appealed the trial court’s dismissal of

his suit to this court.

Here, the gist of Black’s complaints is that requiring him to wear a GPS tracking

device while confined in a maximum-security facility is punitive and violates his

constitutional rights. He questions the Legislature’s intent with regard to the statute’s

4 We note that Black has previously requested removal of his tracking device. However, the request

was impliedly denied when the trial court found in a May 9, 2018 order that none of the requirements of his civil commitment should be modified. See In re Black, No. 04-18-00700-CV, 2018 Tex. App. LEXIS 9973, at *6-7 (Tex. App.—San Antonio Dec. 5, 2018, orig. proceeding). 4 requirement that confined individuals in more restrictive tiers of treatment be required to

wear tracking devices. He urges that tracking devices should only be intended to monitor

individuals out in the community and not those, who like himself, are confined.

APPLICABLE LAW

The Sexually Violent Predators Act was enacted in 1999 with the intent of treating

a “small but extremely dangerous group of sexually violent predators” that suffer from a

behavioral abnormality. § 841.001. The Texas Civil Commitment Office is responsible

for providing treatment and supervision for committed individuals. §§ 841.007, 841.083.

The office developed a five-tiered treatment program to transition committed individuals

from “total confinement” to less restrictive housing and supervision, and eventually, to

release from civil commitment. See § 841.0831. 5 The first tier is the most restrictive and

the fifth tier the least restrictive. In re Bluitt, 605 S.W.3d 199, 201 (Tex. 2020). Tier one

and tier two individuals are required to wear a GPS tracking device. § 841.082(a)(4)(A)(ii),

(iii). Black testified he is presently in tier two treatment.

Section 841.082(d) of the Code provides that the “committing court retains

jurisdiction of the case with respect to a proceeding conducted under this subchapter,

other than a criminal proceeding involving an offense under Section 841.085, or to a civil

commitment proceeding conducted under Subchapters F and G.” § 841.082(d).

(Emphasis added). The subchapter referred to in the statute as subchapter E addresses

modifications of the requirements of commitment. Section 841.082(e) provides that the

5 Under a five-tiered treatment program, the Texas Civil Commitment Office evaluates a committed

person’s housing and movement through each tier “based on the person’s behavior and progress in treatment.” In re Bluitt, 605 S.W.3d 199, 201 (Tex. 2020).

5 requirements imposed on an individual who has been civilly committed may be modified

by the committing court at any time after notice to each affected party to the proceedings

and a hearing. § 841.082(e). (Emphasis added).

PLEA TO THE JURISDICTION

A plea to the jurisdiction is a dilatory plea that challenges whether a trial court has

the authority to decide the subject matter of a specific cause of action. Tex. Dep’t of Parks

& Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether a trial court has

subject matter jurisdiction is a question of law that we review de novo. Tex. DOT &

Edinburg v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 166 (Tex. 2013); Miranda, 133

S.W.3d at 226. In doing so, we exercise our own discretion and redetermine each legal

issue, without giving deference to the lower court’s decision. See Quick v. City of Austin,

7 S.W.3d 109, 116 (Tex. 1999) (op. on reh’g).

In deciding a plea to the jurisdiction, a court should construe the pleadings liberally

in favor of the pleader, look to the pleader’s intent, and accept as true factual allegations

contained in the pleadings. See Miranda, 133 S.W.3d at 226, 228. A court deciding a

plea to the jurisdiction is not required to look solely to the pleadings but may consider

evidence submitted by the parties, and it must do so, when necessary to resolve the

jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.

2000).

ANALYSIS

In the trial court and on appeal, Black couches his complaints as violations of his

constitutional rights and attacks that portion of chapter 841 which requires him to submit

to GPS tracking under a particular type of tracking service while confined in a civil 6 commitment facility as being unconstitutional. § 841.082(a)(4)(A)(ii), (iii) (requiring a

tracking device if the person is in one of the two most restrictive tiers of treatment (tier

one or tier two) or is on disciplinary status). Even construing Black’s pleadings liberally

and in his favor, the relief he seeks is to have his GPS monitoring device removed—a

modification of his commitment requirements. See § 841.082(e) (providing the

requirement imposed under subsection (a) may be modified by the committing court

which retains jurisdiction to amend the conditions of a civil commitment order).

Furthermore, we look to the substance of Black’s petition to determine the nature

of the relief he seeks. See Cupit v. Texas Civil Commitment Office, No. 07-18-00228-

CV, 2018 Tex. App. LEXIS 9384, at *4 (Tex. App.—Amarillo Nov. 16, 2018, no pet.) (mem.

op.). See also Ryland Enter. v. Weatherspoon, 355 S.W.3d 664, 666 (Tex. 2011) (per

curiam) (noting that “courts should acknowledge the substance of the relief sought despite

the formal styling of the pleading”). In reviewing Black’s pleadings, we conclude, as does

McLane, that he seeks to modify the requirement of his commitment that he wear a GPS

tracking device, a claim that must be filed in the committing court. Even though Black

purports to challenge the constitutionality of certain portions of section 841.082, when a

case can be resolved on non-constitutional grounds, we need not address constitutional

claims. See In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003) (recognizing that courts only

decide constitutional questions when issues cannot be resolved on non-constitutional

grounds).

As such, we first address Black’s complaints on non-constitutional grounds. As

previously noted, subsections (d) and (e) of section 841.082 provide that the committing

court retains jurisdiction with respect to proceedings under subchapter E and

7 modifications of a civil commitment order are to be made by the committing court.

Requiring certain claims that are brought pursuant to the Sexually Violent Predators Act

to remain in the committing court is “logical, prevents different courts from issuing

competing orders as to the same committed person, and maintains continuity of

oversight . . . .” See In re Commitment of Hill, 580 S.W.3d 307, 310 (Tex. App.—Houston

[14th Dist.] 2019, no pet.) (citing Texas Civil Commitment Office v. Hartshorn, 550 S.W.3d

319, 330 (Tex. App.—Austin 2018, no pet.)).

At the hearing in the underlying case, Black testified he was civilly committed in

the 274th District Court of Guadalupe County. 6 As such, the record unequivocally

establishes that the 154th District Court of Lamb County did not have jurisdiction over

Black’s suit. Thus, applying a de novo review, we conclude the trial court did not err in

granting McLane’s plea to the jurisdiction and dismissing Black’s suit without prejudice.

Black’s issues are overruled.

CONCLUSION

The trial court’s Order Dismissing Claims Without Prejudice is affirmed.

Per Curiam

6 The State incorrectly argued that Black was committed in Montgomery County. 8