                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                            __________________
                              NO. 09-12-00390-CV
                            __________________


                  IN RE COMMITMENT OF EDGAR FIRE

__________________________________________________________________

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                    Trial Cause No. 07-10-10275 CV
__________________________________________________________________

                         MEMORANDUM OPINION

      In December 2007, the trial court rendered an agreed final judgment and an

order civilly committing Edgar Fire for outpatient treatment and supervision

pursuant to the sexually violent predator statute. See Tex. Health & Safety Code

Ann. §§ 841.001-.151 (West 2010 & Supp. 2012). The order required Fire to reside

in El Paso County, Texas. On July 26, 2012, in response to a motion to modify

filed by the Office of Violent Sex Offender Management (OVSOM), the trial court

modified the judgment and civil commitment order to require that Fire “reside in a

Texas residential facility under contract with the Office of Violent Sex Offender
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Management (OVSOM) or at another location or facility approved by the

OVSOM.” 1 Fire is one of many persons affected by similar modification orders

signed by the trial court on July 26. Fire asserts four appellate issues challenging

the modification order. Because the order is not appealable and mandamus relief is

not warranted, we dismiss Fire’s appeal.

      The trial court’s July 26 order modified a requirement of Fire’s SVP

treatment without finally disposing of the commitment case and no interlocutory

appeal is statutorily authorized; thus, Fire’s notice of appeal fails to invoke our

appellate jurisdiction. See In re Commitment of Cortez, No. 09-12-00385-CV, ___

S.W.3d ___, 2013 Tex. App. LEXIS 7854, at **5-6 (Tex. App.—Beaumont June

27, 2013, no pet. h.) (not yet released for publication). However, Fire asks that we

alternatively consider his brief as a request for mandamus relief. For the reasons

stated in Cortez, we will address Fire’s issues as a mandamus petition. See id. at

**6-8.

      In issues one and two, Fire challenges the trial court’s refusal to allow

counsel to make objections during the modification proceedings, consideration of
      1
       In 2011, operation of the SVP treatment program transferred from the
Council on Sex Offender Treatment to OVSOM. See Act of May 30, 2003, 78th
Leg., R.S., ch. 347, § 16, 2003 Tex. Gen. Laws 1505, 1514, amended by Act of
May 23, 2011, 82nd Leg., R.S., ch. 1201, § 3, 2011 Tex. Sess. Law Serv. 3197,
3199 (current version at Tex. Health & Safety Code Ann. § 841.002(4) (West
Supp. 2012)).
                                       2
the motion to modify and objections on submission, and refusal to allow Fire to

communicate with his counsel or present evidence during the proceedings. Fire

also asserts within issue two that because the State had not filed a written motion to

modify, no motion to modify was properly before the trial court. Fire further

contends that the State must “file a signed and accurate pleading setting forth the

desired modifications to the person’s commitment order,” and “should serve a

copy of that pleading upon the individual whose commitment order the State

intends to modify, and his attorney.”

      As we have previously explained, the trial court may modify SVP

commitment requirements “‘at any time after notice to each affected party to the

proceedings and a hearing.’” Id. at *8 (quoting Tex. Health & Safety Code Ann. §

841.082(e) (West Supp. 2012)). Fire received notice through counsel, appeared

before the trial court after filing written objections to OVSOM’s motion to modify,

and personally appeared in court when the trial court modified the civil

commitment order. See id. at **8-10. Moreover, because of the limited

administrative purpose of modification to conform to changes made by the

Legislature, the opportunity to be heard through written submission alone does not

violate the SVP statute or due process. Id. at *11. Fire has not shown what his



                                          3
unaddressed objections would have been, or that a contemporaneous objection was

necessary to preserve error. See id. at *13.

      Fire joined motions filed on behalf of the affected men. The trial court’s July

26 order merely substituted the newly-created entity, OVSOM, in place of the

former entity, CSOT, because OVSOM assumed CSOT’s duties, effective

September 1, 2011. See Act of May 23, 2011, 82nd Leg., R.S., ch. 1201, § 19(a)-

(c), 2011 Tex. Sess. Law Serv. 3197, 3203. The record demonstrates that Fire was

aware that the trial court was going to make a technical change in the residency

requirement to reflect that upon Fire’s release, OVSOM would provide his

housing. We do not find it necessary to require the trial court to vacate its order of

July 26 and issue a new order after conducting an evidentiary hearing. The order

merely conformed Fire’s commitment requirements to reflect the change in agency

made by the Legislature the previous year. See generally Tex. Gov’t Code Ann. §§

420A.001-.011 (West 2012); Tex. Health & Safety Code Ann. §§ 841.002,

841.007, 841.021-.023, 841.082-.084 (West Supp. 2012).

      In issue three, Fire argues that the modification procedure forces civilly

committed persons to reside in locked residential facilities where conditions are

punitive, in violation of due process. Along with numerous other civilly committed

persons, Fire disavowed a constitutional challenge to the statute in the trial court.

                                          4
See Cortez, 2013 Tex. App. LEXIS 7854, at *13. The trial court’s July 26 order did

not alter Fire’s status to a more restrictive custody. See id.

      In issue four, Fire contends that the State breached its agreement when

OVSOM requested a modification of his commitment order, and that he is entitled

to specific performance of his agreed judgment “or reinstatement of his right to

jury trial and all the other rights he forfeited by entering the [a]greed [j]udgment.”

The requirements in the commitment order issued pursuant to a judgment entered

on stipulated facts. However, as we explained in Cortez, the SVP statute authorizes

modifications. Id. at *17. Furthermore, Fire has been convicted of violating the

civil commitment order, so even if we accepted his “breach of agreement”

argument, which we do not, he could not seek specific performance. See id.

      Because we lack appellate jurisdiction, and Fire’s complaints do not warrant

mandamus relief, we dismiss Fire’s appeal.

      APPEAL DISMISSED.


                                              ________________________________
                                                      STEVE McKEITHEN
                                                          Chief Justice



Submitted on July 10, 2013
Opinion Delivered August 15, 2013
Before McKeithen, C.J., Gaultney and Horton, JJ.
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