                                                                           ACCEPTED
                                                                       03-17-00801-CV
                                                                             21620340
                                                             THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                      1/4/2018 5:21 PM
                                                                     JEFFREY D. KYLE
                                                                                CLERK
                 No. 03-17-00801-CV
                                                       FILED IN
                 In the Court of Appeals        3rd COURT OF APPEALS
                                                    AUSTIN, TEXAS
                                                1/4/2018 5:21:35 PM
        Third Supreme Judicial District of Texas  JEFFREY D. KYLE
                                                        Clerk




                  Thomas Ray Pilgrim
                            v.
            Texas Civil Commitment Office




                   Appellant’s Brief


                 On Appeal from Cause
                   D-1-GN-17-000838
In the 250th Judicial District Court, Travis County, Texas


                          William A. Marshall
                          16011 Maplehurst Drive
                          Spring, Texas 77379
                          TBN 13048340
                          Phone: 713-301-2854
                          billmarshallpm@gmail.com

                          ORAL ARGUMENT REQUESTED


                                                             1 of 94
                                               Table of Contents
1. Table of Contents...................................................................................................2

2. Identities of Parties and Counsel ..........................................................................3

3. Index of Authorities...............................................................................................4

4. Statement of Procedural History..........................................................................10

5. State Regarding Oral Argument..........................................................................11

6. Statement of Issues..............................................................................................12

7. Statement of Facts...............................................................................................13

8. Summary of Argument........................................................................................32

9. Argument and Authorities...................................................................................34

10. Issue One...........................................................................................................35

11. Issue Two...........................................................................................................37

12. Issue Three.........................................................................................................54

13. Issue Four..........................................................................................................57

14. Issue Five...........................................................................................................61

15. Issue Six.............................................................................................................63

16. Issue Seven........................................................................................................64

17. Prayer.................................................................................................................65

18. Certificate of Compliance..................................................................................65

19. Certificate of Service.........................................................................................66

20. Appendix...........................................................................................................67



                                                                                                                   2 of 94
                     Identity of Parties and Counsel

Appellant
     Plaintiff below – Thomas Ray Pilgrim
     Trial Counsel – William A. Marshall
                      16011 Maplehurst Drive
                      Spring, Texas 77379

Appellee
     Defendant below - The Texas Civil Commitment Office
     Trial Counsel - Richard Huntpalmer
                    Assistant Attorney General of Texas
                    Law Enforcement Defense Division
                    Office of the Attorney General
                    P.O. Box 12548, Capitol Station
                    Austin, Texas 78711




                                                           3 of 94
                                              Index of Authorities
Cases

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)..........................34

Brown v. Darden, 121 Tex. 495, 50 S.W.2d 261, 263 (1932)..................................62

Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex. 1983).............................45

C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 322 n.5 (Tex. 1994)........45

Cramer v. Sheppard, 167 S.W.2d 147, 155 (Tex. 1942).........................................45

Deacon v. City of Euless, 405 S.W.2d 59, 61 (Tex.1966).......................................58

Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.2000)..................................34

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex.2009)...............39

Fitzgerald v. Adv. Spine Fixation Sys., Inc., 996 S.W.2d 864, 866
  (Tex.1999).......................................................................................................39,44

Galbraith Eng'g. Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867-868 (Tex.
 2009)....................................................................................................................45

Hernandez v Texas Dep't of Insurance, 923 S.W.2d 192 (Tex.App. Austin
 1996).....................................................................................................................64
In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005) ....................................16

In re Commitment of Keen, 462 S.W. 524 (Tex. App.-Beaumont 2015,
   no pet.)................................................................................................................51

In re Commitment of Mr. Pilgrim, 09-11-00593-CV (Tex. App.—Beaumont Feb.
  28, 2013, pet. ref’d) (mem. op., not designated for publication)............................38




                                                                                                                    4 of 94
In re Commitment of Lewis, 495 S.W.3d 342 (Tex. App.—Beaumont 2016,
   pet. ref’d).......................................................................................................22, 41

In re Missouri Pac. R.R. Co., 998 S.W.2d 212 (Tex. 1999)....................................45

In re Smith, 333 S.W.3d 582, 586 (Tex. 2011).......................................................39

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998)........................34

Merchants Fast Motor Lines, Inc. v. Railroad Comm’n, 573 S.W.2d 502, 504
  (Tex. 1978).........................................................................................................59

Mission Consol. ISD v Garcia, 372 S.W.3d 629, 635 (Tex. 2012).........................34

Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011).....................................39, 44

Rylander v. Fisher Controls Int'l, Inc., 45 S.W.3d 291, 301 (Tex. App.
   -Austin 2001, no pet.).........................................................................................62

State v. Humble Oil & Refining Co., 141 Tex. 40, 169 S.W.2d 707,
   708-709 (1943)...................................................................................................59

Tex. Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d 726, 738
    (Tex. App.-Austin 2014, pet. dism’d)................................................................34

Tex. Natural Res. Conserv. Comm'n. v. IT-Davy, 74 S.W.3d 849 (Tex. 2002)......34

Rules
Tex. R. Civ. P. 22....................................................................................................50
Tex. R. Civ. P. 78-82...............................................................................................50
Tex. R. Civ. P. 329..............................................................................................17, 3




                                                                                                                  5 of 94
Constitutional Provisions
Article V, Section 8 of the Texas Constitution............................................11, 35, 60

Article I, Section 16 of the Texas Constitution.......................................................58

Texas Health and Safety Code

§841.001..................................................................................................................14
§841.002............................................................................................................14, 40
§841.003..................................................................................................................49
§841:021-023...........................................................................................................14
§841.023......................................................................................................14, 26, 48
§841.041..................................................................14, 16, 17, 26, 46, 47, 48, 49, 50
§841.062..................................................................................................................14
§841.081......................................................................................................15, 16, 17
§841.082.....15, 17, 18, 19, 24, 27, 29, 30, 32, 42, 47, 51, 53, 55, 58, 59, 60, 61, 62,
                   63
§841.083..................................................................................................................19
§841.0831................................................................................................................27
§841.0834............................................................................28, 31, 35, 37, 48, 56, 63
§841.0836..........................................................................................................27, 28
§841.085..........................................................................................30, 47, 51, 53, 60
§841.101-103...........................................................................................................16
§841.102..................................................................................................................47
§841.121-124...........................................................................................................16
§841.122..................................................................................................................47




                                                                                                                   6 of 94
Statutes

Texas Code Crim. P. Art. 13.315................................................................48, 51, 53
Tex. Code Crim. P. arts. 46B.107............................................................................62
Tex. Code Crim. P. arts. 46B.114............................................................................62
Tex. Code Crim. P. Ch. 46, Subch. E......................................................................62
Texas Gov't Code § 11.025......................................................................................42
Texas Gov't Code § 24.007......................................................................................11
Texas Gov't Code § 24.579..........................................................................16, 28, 38
Texas Gov't Code § 74.042......................................................................................26
Texas Gov't Code § 311.011(a)...............................................................................61
Texas Gov't Code § 311.022....................................................................................58
Texas Gov't Code § 311.023....................................................................................45
Texas Gov't Code § 311.023(1).........................................................................41, 42
Texas Gov't Code § 311.023(2).........................................................................41, 43




                                                                                                        7 of 94
                                              Other Authorities

An Act relating to the civil commitment of and the protection of
citizens from sexually violent predators. (Acts 2005, 79th Leg.,
ch. 849, Sections 3 and 7(1)) (S.B. 912) ….......................................................18, 19

An Act relating to the civil commitment of sexually violent predators;
amending provisions subject to criminal penalties. (Acts 2015, 84 Leg.,
R.S., ch. 845) (Senate Bill 746) “SB746”.............................................12, 15, 19,
                                 37, 38, 40, 42, 43, 44, 46, 47, 51, 53, 54, 55, 60, 61

An act relating to the civil commitment of sexually violent
predators, the operation of the Texas Civil Commitment Office,
and certain related offenses; increasing a criminal penalty
(Acts 2017, Senate Bill 1576, 85th Leg., ch. TBD, §16.) (SB
1576)....................................................................................13, 18, 30, 31, 33, 54, 59

An Act Relating to the Continuation and the Functions of the
Department of Criminal Justice, The Administration of the
Private Sector Prison Industries Oversight Authority, The
Administration of the Texas Council On Offenders With
Mental Impairments, And The Civil Commitment of Sexually
Violent Predators, 1999 Tex. Sess. Law Serv. Ch. 1188 (S.B. 365)
Vernon's.......................................................................................................16, 17, 18

An Act relating to the prosecution, punishment, and supervision
of certain sex offenders and to certain crimes involving sex
offenders. (Acts 2007, 80th Leg., R.S., ch.593, section 5.) (H.B. 8).......................17

An Act relating to the sex offender civil commitment program
and to the creation of a state agency to perform the functions
relating to the sex offender civil commitment program that are
currently performed by the Council on Sex Offender Treatment.
(Acts 2011, 82nd Leg., R.S., ch. 1201, Sec. 4) (S.B. 166)......................................15

An Act relating to the sex offender registration program and
the civil commitment of sexually violent predators. (Acts 2003,
78th Leg., ch.347, Section 24.) (S.B.871).........................................................17, 19

                                                                                                                8 of 94
Senate Comm. on Criminal Justice, Bill Analysis, Tex.
S.B. 746, 84th Leg., R.S. (2015)...........................................................21, 23, 25, 41




                                                                                                  9 of 94
                             No. 03-17-00801-CV

                              Thomas Ray Pilgrim
                                         v.
                       Texas Civil Commitment Office

To the Honorable Justices of the Court of Appeals:

      Appellant, Thomas Ray Pilgrim, respectfully presents this brief in support of

his assertion that the trial court judge erred in granting Appellee's Plea to the

Jurisdiction and dismissing Appellant's case.

                      Statement of Procedural History

      On February 28, 2017 Mr. Pilgrim filed his Original Unauthorized Petition

for Release and in the Alternative Petition for Less Restrictive Housing and

Supervision. On March 27, 2017 Appellee filed its Motion to Transfer Venue, to

which Mr. Pilgrim responded on June 1, 2017. Appellee filed its Original Answer

on June 8, 2017 and its First Amended Motion to Transfer Venue on June 9, 2017.

Mr. Pilgrim non-suited his Unauthorized Petition for Release on June 12, 2017 and

his Response to Appellee's First Amended Motion to Transfer Venue on July 18,

2017. On August 23, the Honorable Gisela Triana issued a letter ruling denying

Appellee's Motion to Transfer Venue and instructing Mr. Pilgrim's counsel to draft

an order. On August 30, 2017 Judge Triana signed an Order denying Appellee's


                                                                            10 of 94
Motion to Transfer Venue. On September 20, 2017, Appellee filed its Plea to the

Jurisdiction, Mr. Pilgrim filed his opposition on October 6, 2017, and on

November 8, 2017 the Honorable Tim Sulac entered an Order granting Appellee's

Plea to the Jurisdiction. On November 9, 2017 Mr. Pilgrim filed his Request for

Findings of Fact and Conclusions of Law. On November 27, Mr. Pilgrim filed his

Notice of Appeal and on December 4, his Motion for New Trial. Both Mr.

Pilgrim's Request for Findings of Fact and Conclusions of Law and Motion for

New Trial remain outstanding.

      Mr. Pilgrim asserts that the district courts of Travis County, as courts of

general jurisdiction, have subject matter jurisdiction over his case by virtue of

Article V, Section 8 of the Texas Constitution and Texas Gov't Code § 24.007. The

basis of Appellee's Motion to Transfer Venue and Plea to the Jurisdiction are that

the “committing court” has continuing jurisdiction over cases in which a person is

ordered into involuntary commitment pursuant to Texas Health and Safety Code

Chapter 841.

                  Statement Regarding Oral Argument

      Mr. Pilgrim requests oral argument because he believes that this Court may

benefit from oral argument.



                                                                           11 of 94
                         Statement of Issues Presented

                                      First Issue

The district courts of Travis County have subject matter jurisdiction over Texas

Health and Safety Code Chapter 841 cases, including § 841.0834 Petitions for Less

Restrictive Housing and Supervision.

                                     Second Issue

The Act relating to the civil commitment of sexually violent predators; amending

provisions subject to criminal penalties (Acts 2015, 84 Leg., R.S., ch. 845) (Senate

Bill 746) stripped the 435th District Court of jurisdiction over Mr. Pilgrim's Health

and Safety Code Chapter 841 case.

                                      Third Issue
The Act relating to the civil commitment of sexually violent predators; amending

provisions subject to criminal penalties (Acts 2015, 84 Leg., R.S., ch. 845) (Senate

Bill 746) did not grant “exclusive, appellate or original” subject matter jurisdiction

over Chapter 841 cases to a court other than a district court, another tribunal, an

administrative body, or a particular district court.

                                     Fourth Issue

The Act relating to the civil commitment of sexually violent predators, the

operation of the Texas Civil Commitment Office, and certain related offenses;


                                                                              12 of 94
increasing a criminal penalty (Acts 2017, Senate Bill 1576, 85 th Leg., ch. TBD,

§16.) did not grant “exclusive, appellate or original” subject matter jurisdiction

over Chapter 841 cases to a court other than a district court, another tribunal, an

administrative body, or a particular district court.

                                      Fifth Issue

The court in which Mr. Pilgrim was convicted of his sexual offenses is NOT the

“committing court” mentioned in current Health and Safety Code § 841.082(d) or

(e).

                                      Sixth Issue

The district courts of Travis County do not need jurisdiction to amend Mr.

Pilgrim's order of commitment as a prerequisite to requiring TCCO to provide Mr.

Pilgrim less restrictive housing and supervision.

                                    Seventh Issue

The trial court erred in failing to issue Findings of Fact and Conclusions of Law.


                                Statement of Facts

Texas Health and Safety Code Chapter 8411


1




                                                                             13 of 94
      The Texas Legislature enacted Health and Safety Code Chapter 841, the

Texas Sexually Violent Predator Act (Chapter 841), in the 1999 session. See

§841.001. Chapter 841 was created to protect Texans from persons who had

committed and were likely to continue committing sexually violent offenses. Id.

Inmates of the Texas Department of Criminal Justice (TDCJ) approaching release

from confinement are evaluated to determine whether they have a condition that

makes them likely to commit sexually violent offenses when released from

confinement. §§841.021-841.023. Individuals determined to have the requisite

condition (i.e. a behavioral abnormality) and are likely to commit a sexually

violent offense when released from TDCJ go through a vetting process which

culminates with the “attorney representing the state” deciding whether or not to

prosecute the person for “civil commitment.” §841.023(b). The attorney

representing the state, §841.002(3), then files suit seeking to have the selected

persons: (1) declared sexually violent predators (SVPs); and, (2) ordered into

treatment and supervision. §841.041.

      In most of the cases the accused SVPs have elected to have a jury make the

determination whether they were a sexually violent predator. See §841.062. The

State lost the very first jury trial in which it sought to have a person declared an

        Unless otherwise specified, all references to Chapter 841 and its statute sections are to
the          Texas Health and Safety Code.

                                                                                         14 of 94
SVP, Appendix: Exhibit G, but did not lose another Chapter 841 jury trial until

August 2016. During that time over 350 men were ordered into Chapter 841

commitment. After the judge or jury declares the person to be an SVP, the judge is

required to commit the person to treatment and supervision. §841.081. This has

primarily been done through entry of a judgment. CR:302. The supervision and

treatment continue until the person's behavioral abnormality changes to the extent

that the person is no longer likely to engage in predatory acts of sexual violence.

§841.081. The judge must also impose upon the person requirements to ensure the

person's compliance with treatment and supervision and to protect the community.

§841.082. This has primarily been accomplished through entry of an Order of

Commitment. CR: 303-4. §841.082(a) sets forth the requirements to be imposed

upon the person.

      Until 2011, men committed under Chapter 841 were ordered into

supervision and treatment coordinated by the Council on Sex Offender Treatment

(CSOT). Effective September 1, 2011, the responsibilities of CSOT for Chapter

841 commitment were transferred to a new state agency, the Office of Violent Sex

Offender Management (OVSOM), Acts 2011, 82nd Leg., R.S., Ch. 1201, Sec. 4,

eff. September 1, 2011, which was staffed by the CSOT personnel who had been

responsible for Chapter 841 commitment. In 2015, the name of OVSOM was


                                                                            15 of 94
changed to the Texas Civil Commitment Office (TCCO). Act of May 21, 2015,

84th Leg. R.S., ch. 845, Section 3, 2015 Tex. Sess. Law Serv. 2701, 2701-12

(West).

      For the first 16 years of Chapter 841, the treatment provided was labeled

“outpatient” sex offender treatment which, in conjunction with the “supervision”,

was aimed at changing the person's behavioral abnormality to the extent that they

were no longer likely to engage in predatory acts of sexual violence. §841.081(a).

See also In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005). Once in

Chapter 841 commitment, the program requires that the adjudicated SVP be

evaluated every two years to determine whether their behavioral abnormality has

changed to the extent that they are no longer likely to engage in a predatory act of

sexual violence. See §§841.101-103, Biennial Review. The program also allows

those who were adjudicated as SVPs to petition the court for release based on their

claim that their behavioral abnormality had changed to the extent that they were no

longer likely to engage in predatory acts of sexual violence. See §§841.121-124,

Petition for Release. The determination of whether the person's behavioral

abnormality has sufficiently changed, in both a biennial review and petition for

release, involves an action by a court. See §§841.101-103 and §§841.121-124.

      In the beginning of the program, the attorney representing the state filed all


                                                                             16 of 94
Chapter 841 cases in a Montgomery County district court other than a family

district court.2 In 2007 the Legislature created the 435th District Court in

Montgomery County which was to give precedence to cases involving Chapter

841. Tex. Gov't. Code §24.579. Thereafter, the judges of Montgomery County

assigned all Chapter 841 cases to the 435th District Court.3

        In most civil cases the trial court loses jurisdiction over a case within a

relatively short time after a judgment is rendered. Tex. R. Civ. P. 329b. However, a

person ordered into Chapter 841 civil commitment remains there until a court

determines that his behavioral abnormality has changed to the extent that he is no

longer likely to engage in a predatory act of sexual violence. §841.081(a).

        The original version of §841.0824 specifically addressed jurisdiction after

the Chapter 841 commitment trial. Originally, §841.082(c) instructed the

Montgomery County judge to transfer jurisdiction over the case to a court in the

county where the person resided, immediately after the commitment of the person. 5

This happened, CR: 277-288, and those cases were never transferred back to

Montgomery County. However, the State and the 435 th District Court disregarded

2
    Acts 1999, 76th Leg., ch. 1188, Sec. 4.01, §841.041(a), eff. Sept. 1, 1999.
3
    Acts 1999, 76th Leg., R.S., ch. 1188, § 4.01, sec. 841.041(a), 1999 Tex. Gen. Laws 4122,
    4146; see also Act of May 28, 2007, 80th Leg., R.S., ch. 593, § 5, 2007 Tex. Gen. Laws 4563,
    4564.
4
    Acts 1999, 76th Leg., ch. 1188, Sec. 4.01, eff. Sept. 1, 1999.
5
    Acts 1999, 76th Leg., R.S., ch. 1188, § 4.01, sec. 841.082(c), 1999 Tex. Gen. Laws 4122,
    4146.

                                                                                        17 of 94
those transfers of jurisdiction.

        In 2003 the Legislature renumbered §841.082(c) to §841.082(d) and

amended it to require the Montgomery County judge to transfer the case once it

“becomes final for purposes of appeal.”6 The Legislature also added a new

§841.082(e) which authorized modification of the requirements imposed under

subsection (a) to be modified “at any time after notice to each affected party to the

proceedings and a hearing.” Id. The new §841.082(e) did not identify which court

could amend the requirements, probably because the legislature presumed that the

courts to which jurisdiction had been transferred was the obvious choice. The 2003

amendments were not made retroactive.

        In 2005, amendments to §841.082(d) deleted the language requiring the

Montgomery County judge to transfer jurisdiction,7 but left unchanged

§841.082(e). The 2005 amendments were not made retroactive. Until September 1,

2017 §841.082(e) never specified which court could modify the requirements

imposed under §841.082(a). (Acts 2017, Senate Bill 1576, 85th Leg., ch. TBD,

§16.) The 2017 amendments were not made retroactive.

        In any event, the court, or courts, that retained jurisdiction had extended

periods (usually the two years between biennial reviews) of dormant jurisdiction

6
    Acts 2003, 78th Leg., ch. 347, Sec. 24, eff. Sept. 1, 2003, §841.082(b).
7
    Acts 2005, 79th Leg., ch. 849, Sec. 3, eff. September 1, 2005.

                                                                               18 of 94
over cases in which no post-commitment Chapter 841 proceedings were held.

         Originally, Chapter 841 required men ordered into commitment “to live at a

particular location,”8 and prohibited them from changing their residence without

“prior authorization from the judge.”9 The 2003 amendments to §841.082 provided

that the judge could “request assistance from [CSOT] in determining an

appropriate residence for the person.”10 After 2003, the vast majority of men in

Chapter 841 commitment lived in half-way houses which also housed parolees

with no other place to live.

         The 2005 amendments changed the § 841.082(a) requirement that a man live

in “a particular location” to require the man to “reside in a Texas residential

facility under contract with the council or at another location or facility approved

by [CSOT].”11 However, the prohibition that the man not change his residence

without prior authorization from the judge was left in tact. Id.

         The “Act of May 21, 2015, 84th Leg. R.S., ch. 845, 2015 Tex. Sess. Law

Serv. 2701, 2701-12 (West)” (hereinafter Senate Bill 746 or SB 746) completed

the transfer of authority to control the residence of the person from the judge to

TCCO. Specifically, the residential requirements of §841.082(a) were modified: to

8
     Acts 1999, 76th Leg., ch. 1188, Sec. 4.01, §841.082(a)(1), eff. Sept. 1, 1999.
9
     Acts 1999, 76th Leg., ch. 1188, Sec. 4.01, §841.082(a)(6), eff. Sept. 1, 1999.
10
     Acts 2003, 78th Leg., ch. 347, Sec. 24, §841.082(b), eff. Sept. 1, 2003.
11
     Acts 2005, 79th Leg., Ch. 849, Sec. 3, eff. September 1, 2005.

                                                                                      19 of 94
require “the person to reside where instructed by the office”; and, to delete the

requirement that the judge approve a change of residence. Id.

      From the beginning, CSOT, then OVSOM, then TCCO has been responsible

for the treatment program and supervision of the man. §841.083. Under this

responsibility, and without approval by the judge or court, CSOT, then OVSOM,

then TCCO allowed men varying degrees of freedom. Most of the men in Chapter

841 commitment were not allowed to leave the half-way houses, except to attend

sex offender treatment at their treatment provider's office. Eventually, some of the

men in Chapter 841 commitment earned the privilege of leaving the half-way

houses, sometimes unescorted, to go to places such as the grocery store or doctor's

office or pharmacy or law library. Others were allowed to leave the facility with a

“chaperon” to go various places in the community. A very few men were allowed

to seek and secure employment. Even fewer were allowed to move out of the half-

way houses and into residences they secured for themselves. See Transcript,

December 8, 2015 hearing regarding Motion for Placement in Tiered Treatment

Program, Cause No. 12-12-13065, In re the Commitment of Alonzo May, 435th

District Court, Montgomery County, Texas. Transcript pages 36-37 (CR: 82-83)

establish the witness' familiarity with the former treatment program. Transcript

pages 47, lines 3-11 (CR: 93) and, pages 59, lines 13 to page 61, line 9 (CR: 105-


                                                                            20 of 94
107) contain details of the “clients'” privileges under the former treatment

program. These privileges were granted without input from either the judge or

court.

         In 2014, the Chapter 841 commitment program was in a bind. Public

attention resulting from Houston Chronicle reporting led to a state audit of the

Chapter 841 commitment program. This audit found a “growing crisis of the civil

commitment of sexually violent predators program that could result in a major

threat to the public safety in Texas”. See: TX B. An., S.B. 746, 6/5/2015, Texas Bill

Analysis, 2015 Regular Session, Senate Bill 746. (CR: 197)

         In December 2014 Senator John Whitmire, one of the authors of Chapter

841 and author of SB 746, told the Houston Chronicle that he planned to ask the

Commission on Judicial Conduct to investigate Michael Seiler (CR: 427), then the

sitting judge of the 435th District Court, because Judge Seiler

         was “out of control and is legally jeopardizing the good purpose for
         why this program was established .” (CR: 427)

         was “acting very bizarre and without a doubt is violating the
         constitutional rights of the defendants. That has to stop." (CR: 427)

         has lost “objectivity and impartiality”. (CR: 430)

Senator Whitmire also told the Chronicle that:

         he planned to introduce “legislation to strip Seiler of his position as
         the only judge in the state now specifically given jurisdiction over the

                                                                                    21 of 94
         so-called civil commitment cases.”(CR: 427)

         “We put this in Montgomery County … for convenience, and that
         obviously has not worked out.” (CR: 430)

         “The reform of this program that needs to happen will not occur
         unless we get the judicial component corrected, as well.” (CR: 431)


         In part because Senator Whitmire joined other complainants, the Texas

Commission on Judicial Conduct initiated an investigation into Judge Seiler in

January 2015. (CR: 432)

         On January 6, 2015 Senator Whitmire told the Chronicle about Judge Seiler:

         “By his own actions and comments, I think this judge has made
         himself nonfuctional in hearing these cases... I think the judge has
         demonstrated he can't handle, shouldn't handle these cases.” (CR: 436)

         SB 746 was introduced on February 24, 2015. Mr. Pilgrim asks the Court to

take Judicial Notice of this fact. At the time SB 746 was introduced, the State

Commission on Judicial Conduct was reviewing five complaints of judicial

misconduct against the then sitting judge of the 435th District Court.

         On April 24, 2015, the Commission on Judicial Conduct reprimanded Judge

Seiler12 for behavior that indicated that men alleged to be sexually violent predators

could not get a fair trial in his court. Mr. Pilgrim asks the Court to take Judicial

Notice of this fact. (CR: 438). The report of the Commission said Seiler's

12
     See In re Commitment of Lewis, 495 S.W.3d 342 (Tex. App.- Beaumont 2016, pet. ref’d).

                                                                                      22 of 94
comments:

               were sufficiently impatient, discourteous and undignified to
               cause a reasonable person to perceive that Judge Seiler
               harbored such bias against SCFO attorneys, their expert
               witness, and the offenders themselves, that a fair trial was not
               possible. (CR: 442)


         On May 1, 2015, regarding the reprimand of former Judge Seiler, Senator

Whitmire told the Houston Chronicle

         "It's the worst case of repeat judicial misconduct like this that I've
         seen in my legislative career and in my professional experience as a
         lawyer." (CR: 439)

         "Whether you like people or not, if you're a judge, you've got to give
         them a fair hearing and fair access to court process. ... The report
         makes clear that he should not continue to handle these cases." (CR:
         439-40)

         “the commission's report highlights why his reform bill, passed April
         22 [2015] by the Senate and now awaiting action in the House, needs
         to be quickly passed and put into law.” (CR: 445)

         “If we left Seiler in charge of this program, if we leave it unchanged,
         the entire program will be in jeopardy of being declared
         unconstitutional.”(CR: 445)
         In the Bill Analysis of SB 746 Senator Whitmire said of the 435 th District

Court:

         The court is currently in complete disarray. Public statements by the
         elected judge from Montgomery County have rendered him
         ineffective and led to his recusal from hearing cases he is designated
         by statute to hear. This is having a negative impact on the entire


                                                                                   23 of 94
      Second Administrative Judicial District impacting 35 other counties.

Mr. Pilgrim asks the Court to take judicial notice of this fact and refers the Court to

Senate Bill 746 Bill (CR: 197).

      Judge Seiler was a problem for another reason. Taking the cases out of

Montgomery County was the only way to prevent Judge Seiler from continuing to

hear cases. The State continued to file requests for civil commitment proceedings

in his court, even in cases in which the jurisdiction over the case had been

transferred to other counties. (Mr. Pilgrim requests the Court to take judicial notice

of the original language of Health and Safety Code § 841.082(d) which required

the transfer of cases to the county in which the person resided. Mr. Pilgrim also

directs the Court's attention to: 1) In re the Commitment of Paul Keen, Cause No.

01-11-07041, Keen's case was transferred to Bexar County; 2) In re the

Commitment of Adolph Martinez, Cause No. 01-4-02224-CV, Martinez's case was

transferred to Ector County; 3) In re the Commitment of James Richards, 01-09-

05913, Richard's case was transferred to Harris County, In re the Commitment of

Daniel Almaguer, 01-06-03836-CV, Almaguer's case was transferred to Travis

County.) (CR: 277-288).

      Judge Seiler finally resolved the problem he represented. In February 2016

Judge Seiler resigned in order to avoid prosecution for accessing privileged juror


                                                                               24 of 94
information. See Seiler resigns from 435th bench, avoids criminal prosecution, The

Courier of Montgomery County, February 16, 2016.13

         Another reason for taking the cases out of Montgomery County is that

Seiler's conduct of the Chapter 841 commitment cases was just fine with many

Montgomery County residents. Proof of this is that he garnered the most votes in

the primary in his race for re-election even after being reprimanded by the

Commission on Judicial Conduct. Mr. Pilgrim asks the Court to take judicial notice

of this fact and directs the Court to:

http://www.mctx.org/electioninfo/eResultsMain.aspx.

         Furthermore, as long as Judge Seiler was on the bench, the other District

Court Judges of Montgomery County could continue to assign all of the Chapter

841 cases to Judge Seiler. The probability of this is demonstrated by the denial of

Motions to Recuse Judge Seiler in multiple Chapter 841 cases (CR: 427) after he

was sanctioned.

         The combination of the dysfunction in the 435 th District Court, the

impending loss of housing facilities, and crisis in the management of OVSOM led

the Legislature to recreate the program. Id. Senate Bill 746 was the vehicle chosen

by the legislature to recreate the Chapter 841 commitment program.14
13
     http://www.yourconroenews.com/neighborhood/moco/news/article/Seiler-resigns-from-
     435th-bench-avoids-criminal-9474157.php
14
     Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 746, 84th Leg., R.S. (2015).

                                                                                         25 of 94
                                   Senate Bill 746

      Senate Bill 746, as enacted, contained 44 sections. It made extensive

changes to the Chapter 841 commitment program in general and Health and Safety

Code Chapter 841 in particular.

      SB 746 Section 6 amended §841.023. §841.023 addresses TDCJ's role in the

assessment of TDCJ inmates being considered for Chapter 841 commitment. TDCJ

is to perform an assessment to determine whether the person: has a behavioral

abnormality; and, is likely to commit a predatory act of sexual violence. Id. In the

event TDCJ determines that the person has a behavioral abnormality, TDCJ is

directed to give notice of the assessment (and supporting information) to the

attorney representing the state. Id. SB 746 Section 6 also required TDCJ to direct

the notice to the attorney representing the state in “the county in which the person

was most recently convicted of a sexually violent offense”. (Emphasis added.)

Prior to June 17, 2015 §841.023 directed that the notice be sent to the Special

Prosecution Unit.

      SB 746 Section 7 amended §841.041. §841.041 is the statutory guide for the

attorney representing the state when filing a new Chapter 841 lawsuit. The version

of section 7 initially introduced, left to the discretion of “the presiding judge of the


  (CR:197)

                                                                                26 of 94
Second Administrative Judicial Region”15 where, except for family courts, to

assign new Chapter 841 cases. The version of §841.041(a) enacted required the

new cases to be filed in the court of conviction for the person's most recent

sexually violent offense. After June 17, 2015, the attorney representing the state

“may file in the court of conviction for the person's most recent sexually violent

offense, a petition alleging that the person is a sexually violent predator...”

(Emphasis added.) Id.

       SB 746 Section 13 amended §841.082(a). As noted above, §841.082(a) lists

the requirements to be imposed on the person to ensure compliance with treatment

and supervision and to protect the community. Violation of those requirements

could form the basis of a new felony charge. §841.085. SB 746 Section 13

completely deleted prior subsections (3), (7) and (8). 16            SB 746 Section 19

amended §841.085 to remove the renumbered subsection (3) from the group of

requirements the violation of which could form the basis of a new felony charge.

SB 746 Section 40(b) required pre-existing Orders of Commitments to be modified

to conform to the changes made to §841.082(a) by SB 746 Section 13.

       SB 746 Section 16 contains three provisions relevant to this discussion: §

15
   The Second Administrative Judicial Region includes Montgomery County. Tex. Gov't. Code
§74.042(c).
16
   These 3 subsections appear as numbered in Mr. Pilgrim' original Order of Commitment. (CR:
   303)

                                                                                     27 of 94
841.0831, §841.0834 and §841.0836. In §841.0831(a) the Legislature instructed

TCCO to develop a new “tiered program for the supervision and treatment of a

committed person.” The Legislature specified that the new tiered treatment

program “must provide for the seamless transition of a committed person from a

total confinement facility to less restrictive housing and supervision...” Id. The

Legislature effectively terminated the old “outpatient” treatment program by

discontinuing funding for that program.

      The new §841.0834 had two subsections (a) and (b). Subsection (a)

instructed TCCO to “transfer a committed person [from total confinement] to less

restrictive housing and supervision if the transfer is in the best interest of the

person and conditions can be imposed that adequately protect the community.”

Subsection (b) authorized a committed person to “file a petition with the court for

transfer to less restrictive housing and supervision” “without [TCCO's] approval”.

      In the new §841.0836, the Legislature specified that a civilly committed

“person released from housing operated by or under contract with [TCCO] shall be

released to the county in which the person was most recently convicted of a

sexually violent offense.”

      Section 39 of SB 746 amended Gov't Code Sec. 24.579 to strip the 435 th

District Court of its specialty status pursuant to which it was to give precedence to


                                                                             28 of 94
Chapter 841 cases.

         SB 746 Section 40 read, in pertinent part:
                (a) Except as provided by Subsection (a-1) of this section, the
                changes in law made by this Act to Chapter 841, Health and
                Safety Code, apply to a civil commitment proceeding under that
                chapter that is initiated on or after the effective date of this Act,
                regardless of when the applicable petition for civil commitment
                was filed.

                (a-1) The jurisdiction of a district court ... in any civil
                commitment trial, any review of a petition for release, or any
                biennial review under Chapter 841, Health and Safety Code,
                that is pending on the effective date of this Act remain
                unaffected by this Act until the conclusion of that proceeding.
                (b) If a civil commitment requirement imposed under
                Chapter 841 … before the effective date of this Act differs from
                any of the civil commitment requirements listed in Section
                841.082 … as amended by this Act, the applicable court with
                jurisdiction over the committed person shall … modify the
                requirement imposed as applicable to conform to that section.17


         Faced with no viable housing options, and a mandate from the legislature to

create a new program that began with total confinement, TCCO chose to centralize

the housing of all men in Chapter 841 commitment in one facility. TCCO entered

into a contract with Correct Care Recovery Solutions, LLC d/b/a CCRS of Texas,

LLC to operate a facility that has acquired the moniker “Texas Civil Commitment

Center.” The Texas Civil Commitment Center (TCCC) was formerly known by the

name “Bill Clayton Detention Center,” a private prison approximately 40 miles
17
     See discussion of SB 746, section 40 below at page 37.

                                                                                    29 of 94
north-northwest of Lubbock in Littlefield, Texas.18

         In August 2015, the State began conducting the hearings required by SB 746

Section 40(b) to modify the orders of commitment previously issued under Chapter

841 to conform to changes in the requirements made by SB 746 Section 13. 19 In

addition to modifying the orders of commitment to conform to the amended list of

requirements, the State asked the court to order the men, whose judgments ordered

them into “outpatient treatment”, placed into the new tiered treatment program.

The Court ordered Mr. Pilgrim into the new “inpatient” tiered treatment program 20

which resulted in his being moved from a half-way house to total confinement in

the TCCC.

                        Senate Bill 1576 a/k/a the 2017 amendments

         Acts 2017, Senate Bill 1576, 85 th Leg., ch. TBD, §16 (SB 1576) made

changes that apply to the continuing jurisdiction of a court which enters a judgment

and order of commitment. Specifically, Section 16 of the SB 1576 provides in

pertinent part:

                Sections 841.082 ... (d), and (e), Health and Safety Code, are
                amended to read as follows:
                      (d) The committing court retains jurisdiction of the case
18
     http://lubbockonline.com/local-news/2015-07-31/littlefield-getting-sex-offender-facility
19
     The State filed all of its motions in the 435th District Court, even in cases transferred to
     another county. An example includes: In re the Commitment of Adolph Martinez, Cause No.
     01-4-02224-CV. Martinez's case was transferred by the 359th District Court to Ector County.
20
     CR: 305

                                                                                          30 of 94
            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.
                  (e) The requirements imposed under Subsection (a) may
            be modified by the committing court at any time after notice to
            each affected party to the proceedings and a hearing.

The underlined portions of the above were added to the respective paragraphs by

SB 1576. There were no other changes to the respective paragraphs. The

amendments to the respective paragraphs did not specify that the committing court

would have “continuing exclusive jurisdiction whether the judgment and order of

commitment were entered before, on, or after the effective date of this Act

regardless of when the applicable petition for civil commitment was filed.”

       Section 45 of SB 1576 provided:

            Section 841.0834(e), Health and Safety Code, as added by this
            Act, applies only to a petition filed on or after the effective date
            of this Act. A petition filed before the effective date of this Act
            is governed by the law in effect when the petition was filed, and
            the former law is continued in effect for that purpose.

      Section 48 of SB 1576 provided: “This Act takes effect September 1, 2017.”

Thomas Ray Pilgrim

      On October 23, 2014, in the 435 th District Court, Mr. Pilgrim was

adjudicated a sexually violent predator. Mr. Pilgrim was ordered into outpatient

treatment and supervision in the custody of the Office of Violent Sex Offender


                                                                               31 of 94
Management commencing on his release from the Texas Department of Criminal

Justice – Institutional Division. CR: 302-304

      On September 14, 2015 the 435th District Court entered an Amended Order

of Commitment for Mr. Pilgrim and an Order On Motion for Placement in Tiered

Treatment Program. CR: 305-306. Soon thereafter, Mr. Pilgrim was removed from

outpatient treatment and placed in the inpatient treatment program, created by SB

746, including his total confinement in a re-purposed private prison in Littlefield,

Texas.

                        Summary of the Arguments

      Chapter 841 provides no specific guidance on the appropriate place to file a

petition for less restrictive housing and supervision when the judgment of

commitment was entered prior to September 1, 2017. Since Chapter 841 does not

provide instructions on where a petition seeking less restrictive housing and

supervision may, should or must be filed, reasonable people could disagree on

where it could be filed. When there is more than one reasonable answer to a

question, the topic is ambiguous. While Chapter 841 is ambiguous on where Mr.

Pilgrim's petition could be filed, the Legislature was very clear about the

termination of the jurisdiction of the district courts of Montgomery County over

Chapter 841 cases in which judgment was rendered prior to June 17, 2015.


                                                                            32 of 94
         The State may want the law to be that “the court that civilly commits a

person always retains jurisdiction over all other matters arising under” Chapter

841, but that is not what the Legislature enacted. The history of §841.082(a)

establishes a division of jurisdiction between the “committing court” and the court

to which the “committing court” was required to transfer jurisdiction. The

hodgepodge that is Chapter 841 renders it ambiguous about where to file the

different “petitions” authorized by Chapter 841 and where cases should land after

the Montgomery County courts lost jurisdiction. However, the Legislature was

clear that the Montgomery County courts lost jurisdiction over cases in which

judgment was rendered prior to June 17, 2015.

         The Legislature has clarified that Chapter 841 issues that arise after entry of

a judgment ordering commitment are to be addressed by the court that entered the

judgment when that judgment has entered after September 1, 2017. 21 The

legislature has not specified which district court should resolve those issues when

the judgment ordering commitment was rendered before September 1, 2017.

         The Texas Constitution and Government Code are clear about a district

court's jurisdiction and support the conclusion that Travis County district courts

have subject matter jurisdiction over the claims asserted by Mr. Pilgrim.


21
     Acts 2017, Senate Bill 1576, 85th Leg., ch. TBD, §16, supra.

                                                                                33 of 94
                          Argument and Authorities

Standard of Review

      “Whether a trial court has subject-matter jurisdiction is a question of law

subject to de novo review.” Tex. Natural Res. Conservation Comm'n. v. IT-Davy,

74 S.W.3d 849 (Tex. 2002), citing Mayhew v. Town of Sunnyvale, 964 S.W.2d

922, 928 (Tex. 1998). "Jurisdiction" refers to a court's authority to adjudicate a

case. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.2000). A plea to the

jurisdiction challenges the court's authority to decide a case. Bland Indep. Sch.

Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The determination of a plea to the

jurisdiction depends on whether the Plaintiff has alleged facts that affirmatively

demonstrate the court's jurisdiction to hear the case. Mission Consol. ISD v Garcia,

372 S.W.3d 629, 635 (Tex. 2012). The Court should construe the pleadings

liberally in favor of jurisdiction, taking them as true in the first instance, and look

to the pleader's intent. Tex. Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d

726, 738 (Tex. App.—Austin 2014, pet. dism’d). Liberally construing the

allegations in Mr. Pilgrim's Original Petition for Less Restrictive Housing and

taking them as true, Mr. Pilgrim has alleged facts that affirmatively demonstrate

that Travis County district courts have subject matter jurisdiction over this Petition

for Less Restrictive Housing and Supervision.


                                                                               34 of 94
FIRST ISSUE

      Subject matter jurisdiction over Texas Health and Safety Code Chapter 841

is not now, and never has been, assigned to: any Texas Court other than a district

court; any other tribunal or administrative agency; or, any particular district court.

Therefore, Petitions for Less Restrictive Housing under Health and Safety Code

§841.0834 are within the subject matter jurisdiction of the Travis County district

courts.

DISCUSSION

      Article V, Section 8 of the Texas Constitution provides in pertinent part:

             District Court jurisdiction consists of exclusive, appellate, and
             original jurisdiction of all actions, proceedings, and remedies,
             except in cases where exclusive, appellate, or original
             jurisdiction may be conferred by this Constitution or other law
             on some other court, tribunal, or administrative body.

      From September 1, 1999 until September 1, 2003, Chapter 841 cases were

initiated in a district court of Montgomery County other than a family district

court. Chapter 841 required the court to transfer the case to a district court of the

county in which the person resided. Cases were transferred from Montgomery

County district courts, CR: 277-288, and Chapter 841 has never provided that

those cases were to be transferred back to that originating court.

      That district courts other than Montgomery County district courts continue


                                                                              35 of 94
to have jurisdiction over Chapter 841 cases establishes that exclusive, appellate,

and original jurisdiction over Chapter 841 cases has not been conferred by the

Constitution or other law on some court, tribunal, or administrative body other than

Travis County district courts. Since jurisdiction over Chapter 841 cases has

demonstrably not been conferred on a court, tribunal or administrative body other

than Travis County district courts, Travis County district courts have subject

matter jurisdiction over Chapter 841 cases, including Petitions for Less Restrictive

Housing and Supervision.

                                  CONCLUSIONS

      Since the Legislature did not restrict where Petitions for Less Restrictive

Housing and Supervision could be filed, and the statutory and constitutional grant

of jurisdiction to “district courts” encompasses the issues raised herein, the district

courts of Travis County, including the 359 th have jurisdiction over this matter. If

the legislature had intended the “committing” court to be the only court in which a

Petition for Less Restrictive Housing and Supervision could be filed, it could have

accomplished this with no ambiguity. For example, “Without the office's approval,

a committed person may file a petition with the committing court for a transfer to

less restrictive housing and supervision.” (Compare §841.0834(b).) “A committed

person returned to a more restrictive setting under Subsection (c) is entitled to file


                                                                               36 of 94
a petition with the committing court seeking a review of the office's

determination.” would have eliminated any ambiguity. (Compare §841.0834(d).)22

         Petitions for Less Restrictive Housing and Supervision were created by SB

746 which did not grant jurisdiction over those petitions to the district courts of

Montgomery County. Since before SB 746 the district courts of Montgomery

County never had jurisdiction over Petitions for Less Restrictive Housing and

Supervision and SB 746 did not grant them that jurisdiction, Chapter 841 is

ambiguous about where a Petition for Less Restrictive Housing and Supervision

may, should or must be filed. Since Mr. Pilgrim's Chapter 841 judgment was

entered before the effective date of SB 746 and the Legislature clearly expressed

its intent to terminate the jurisdiction of the courts of Montgomery County over

such Chapter 841 cases, the question presented is where OTHER THAN

Montgomery County can Mr. Pilgrim's Petition for Less Restrictive Housing and

Supervision be filed. Travis County District Courts have jurisdiction over Mr.

Pilgrim's Petition for Less Restrictive Housing and Supervision.

SECOND ISSUE

         Senate Bill 746 stripped the 435th District Court of jurisdiction over Mr.

Pilgrim's Chapter 841 case.

22
     These amendments would only have addressed the issue going forward without demonstrable
     intent for them to apply retroactively.

                                                                                     37 of 94
DISCUSSION

      Section 40 of SB 746 (CR: 377) was the vehicle chosen by the 84 th

Legislature to terminate the jurisdiction of the 435 th District Court over civil

commitment cases in which a judgment had been entered before June 17, 2015.

Prior to June 17, 2015 all civil commitment cases were initiated in Montgomery

County and, after it was created, assigned to the 435th District Court. See Tex.

Gov’t Code § 24.579 (2014).

      In most cases in Texas, the trial court loses jurisdiction over cases 30 days

after judgment is rendered. See Tex. R. Civ. P. 329. This period is extended by the

filing of a motion for new trial. Pilgrim' judgment was entered on October 23, 2014

(CR: 302) and his motion for new trial was not ruled on by the trial court. In

almost any other type of case, the 435th District Court would have lost plenary

power over Mr. Pilgrim's civil commitment case on November 22, 2014. Mr.

Pilgrim’s judgment and order of civil commitment were affirmed on June 26, 2015

more than a year before his first biennial review was due. See In re Commitment of

Pilgrim, No. 09-14-00528-CV, (Tex. App.—Beaumont June 26, 2015) (mem. op.).

      In SB 746 Section 40, the legislature wrote:

            (a) Except as provided by Subsection (a-1) of this section, the
            changes in law made by this Act to Chapter 841, Health and
            Safety Code, apply to a civil commitment proceeding under that
            chapter that is initiated on or after the effective date of this Act,

                                                                                38 of 94
            regardless of when the applicable petition for civil commitment
            was filed.

           (a-1) The jurisdiction of a district court ... in any civil
           commitment trial, any review of a petition for release, or any
           biennial review under Chapter 841, Health & Safety Code, that
           is pending on the effective date of this Act remain unaffected
           by this Act until the conclusion of that proceeding.
(Emphasis added.)

       Only when statutory text is susceptible to more than one reasonable

interpretation is it appropriate to look beyond its language for assistance in

determining legislative intent. See In re Smith, 333 S.W.3d 582, 586 (Tex. 2011).

“Enforcing the law as written is a court's safest refuge in matters of statutory

construction..." Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443

(Tex.2009). The primary objective in construing a statute is to ascertain and give

effect to the Legislature's intent. Molinet v. Kimbrell, 356 S.W.3d 407, 411

(Tex.2011). A court should consider it "a fair assumption that the Legislature tries

to say what it means, and therefore the words it chooses should be the surest guide

to legislative intent." Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d

864, 866 (Tex.1999).

      Section 40 of SB 746 is clear evidence of the Legislature's intent to

terminate the jurisdiction of the Montgomery County district courts over civil

commitment cases in which judgment was rendered prior to June 17, 2015. No



                                                                            39 of 94
other section of SB 746 specifically addresses the locale for post-commitment

judicial events in Chapter 841 cases in which the judgment was issued prior to

June 17, 2015. No section of Chapter 841 specifically addresses the locale for post-

commitment judicial events in Chapter 841 cases in which the judgment was

issued prior to September 1, 2017. Chapter 841 is silent on the specific issue of

where any post-commitment judicial events in Chapter 841 cases in which the

judgment was issued prior to September 1, 2017 should take place. At the time this

lawsuit was filed, Chapter 841 was silent in regard to where Petitions for Less

Restrictive Housing and Supervision in Chapter 841 cases should be filed.

                                   SB 746 SECTION 40(a-1)

         Subsection (a) is a savings clause, specifying that, with the exception set out

in subsection (a-1), the amendments to Chapter 841 apply to civil commitment

proceedings “initiated on or after [June 17, 2015] the effective date of [Senate Bill

746].” Subsection (a-1) provides that if a civil commitment proceeding 23 (a “civil

commitment trial”, “review of a petition for release” or “biennial review”) was

pending in respect of Mr. Pilgrim on June 17, 2015, then the jurisdiction of the

435th District Court over Mr. Pilgrim would have “continued until the conclusion

of that proceeding.” This section of SB 746 establishes the intent of the legislature
23
     §841.002(3-a) defines “civil commitment proceeding” as a “trial or hearing conducted under
     Subchapter D, F, or G.” These Subchapters deal with trials, biennial reviews and petitions for
     release.

                                                                                           40 of 94
to divest the district courts of Montgomery County of jurisdiction, effective June

17, 2015, over Chapter 841 cases in which no “civil commitment proceeding” was

pending on June 17, 2015. No “civil commitment trial”, “review of a petition for

release” or “biennial review” related to Mr. Pilgrim was pending on June 17,

2015.24 As a result, the Legislature intended the jurisdiction of the 435th District

Court over Mr. Pilgrim and his case to terminate June 17, 2015.

     THE REASON TO TERMINATE JURISDICTION OF THE 435TH DISTRICT
                              COURT

         It is important to note the background within which the Legislature was

operating when it determined that the 435th District Court should be stripped of the

civil commitment cases.25 Commentary related to the passage of Senate Bill 746

suggested that a large part of the motivation for depriving Montgomery County of

its exclusive jurisdiction was due to Judge Seiler’s conduct, which had left the

435th District Court in “complete disarray.” Senate Comm. on Criminal Justice,

Bill Analysis, Tex. S.B. 746, 84th Leg., R.S. (2015). (CR: 197) The committee

reports stated:

                Public statements by the elected judge from Montgomery
                County have rendered him ineffective and led to his recusal
                from hearing cases he is designated by statute to hear. This is
                having a negative impact on the entire 2nd Administrative

24
     See Court's Docket Sheet, CR: 446-448.
25
     Texas Gov't Code § 311.023(1), (2).

                                                                              41 of 94
             Judicial District impacting 35 other counties. Id.

On April 24, 2015, the State Commission on Judicial Conduct issued a public

reprimand against the former judge of the 435th District Court. See e.g. In re

Commitment of Lewis, 495 S.W.3d 342 (Tex. App.—Beaumont 2016, pet. ref’d).

      For Appellee to deny that SB 746 section 40 intended to divest the

Montgomery County district courts of jurisdiction over civil commitment cases

(either effective June 17, 2015 or as soon as pending civil commitment

proceedings were concluded) is to deny subsection 40(a-1) any effect. Appellee

offers no reasonable alternative interpretation of SB 746 section 40, because there

is no reasonable alternative interpretation.

      Appellee's argument is essentially that since the legislature did not modify

§841.082(e) to account for SB 746 Section 40, §841.082(e) constitutes an

exception to the import and impact of SB 746 section 40. This conclusion would

render SB 746 Section 40 meaningless, i.e. the argument would make the sections

irreconcilable. Adopting Appellee's argument would violate Tex. Gov't. Code

§11.025(a) which instructs a court that finds two statutory provisions irreconcilable

to give effect to the provision enacted most recently. Section 40 was enacted after,

and should be given effect over, §841.082(e). Mr. Pilgrim' position, on the other

hand, allows the Court to give effect to both SB 746 section 40 and §841.082(e).


                                                                             42 of 94
This can be accomplished by leaving jurisdiction (for biennial reviews, petitions

for release, petitions for less restrictive housing and motions to modify orders of

commitment) in the court which assumes jurisdiction when a Petition is filed there,

in this case a Travis County district court.

                          SENATE BILL SECTION 40(a)

      Subsection (a) specifically instructs that all changes made by SB 746,

EXCEPT as provided in Subsection (a-1) apply to a civil commitment proceeding

initiated after the effective date of this Act [June 17, 2015].” Subsection (a-1)

provides that the jurisdiction of a district court ONLY extends past June 17, 2015

IF there is a trial, petition for release or biennial review pending, AND THEN

ONLY until the conclusion of that proceeding. Thus, the extension of the 435th

District Court's jurisdiction beyond June 17, 2015 in the event one of three

proceedings is in progress, is an EXCEPTION to the other changes made by SB

746. The extension of the 435th District Court's jurisdiction by subsection 40(a-1),

in the event of one of those three proceedings, is an EXCEPTION to the other

changes made by SB 746. Therefore, the termination of the 435 th District Court's

jurisdiction must be one of the other changes effected by SB 746.

      Reading subsections 40(a) and (a-1) together, the jurisdiction of the 435 th

District Court extends beyond the effective date of SB 746 ONLY if one of the


                                                                            43 of 94
three specified civil commitment proceedings is in progress, and then ONLY

UNTIL the conclusion of that proceeding. None of those three proceedings was

pending on June 17, 2015, so there was no exception to the termination of the 435 th

District Court's jurisdiction. Therefore, Mr. Pilgrim's current Petition falls outside

the jurisdiction of the 435th District Court.

        The legislature specifically said, in SB 746 subsection 40(a-1), that the

jurisdiction of a district court under Chapter 841 will remain “unaffected by this

Act until the conclusion of [any ongoing civil commitment] proceeding.” This

language is not a comment, it is a direct statement of the law going forward and is

susceptible of only one meaning: the jurisdiction of the 435th District Court over

persons in civil commitment and their civil commitment cases terminated on the

earlier of June 17, 2015 or at the conclusion of an ongoing civil commitment

proceeding.

                                     AMBIGUITY

      The primary objective in construing a statute is to ascertain and give effect

to the Legislature's intent. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011). A

court should consider it "a fair assumption that the Legislature tries to say what it

means, and therefore the words it chooses should be the surest guide to legislative

intent." Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866


                                                                              44 of 94
(Tex.1999). Normally, “if the disputed statute is clear and unambiguous[,] extrinsic

aids and rules of statutory construction are inappropriate, and the statute is give its

common everyday meaning.” Cail v. Service Motors, Inc., 660 S.W.2d 814, 815

(Tex. 1983) “Statutory provisions will not be so construed or interpreted as lead to

absurd conclusions, great public inconvenience, or unjust discrimination, if the

provision is subject to another, more reasonable construction or interpretation.” C

& H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 322, n.5 (Tex. 1994), citing

Cramer v. Sheppard, 167 S.W.2d 147, 155 (Tex. 1942). “When the plain language

of a statute does not convey the Legislature’s apparent intent, [a court] may resort

to additional constructional aids, such as the objective of the law, the legislative

history, the common law or former statutory provisions, including laws on the

same or similar subject, and the consequences of a particular construction.”

Galbraith Eng'g. Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867-868 (Tex.

2009). See also Tex. Gov't. Code §311.023. As the Texas Supreme Court said in In

re Missouri Pac. R.R. Co., 998 S.W.2d 212 (Tex. 1999):

             the statute is not entirely clear in all its particulars. The
             language of the statute could support more than one reasonable
             interpretation and therefore is ambiguous. Because it is
             ambiguous, we may turn to extratextual sources such as the
             statute's legislative history. ” Id., at 217.

      Appellee argues that jurisdiction over Chapter 841 cases is always in the


                                                                               45 of 94
committing court. Mr. Pilgrim respectfully disagrees. Mr. Pilgrim contends that

Chapter 841 is ambiguous regarding where newly arisen issues concerning persons

committed prior to September 1, 2017 are to be determined; however, SB 746

unambiguously demonstrates that the legislature wanted to remove all post-

commitment Chapter 841 proceedings from the 435th District Court due to the

erratic and unconstitutional behavior of the former presiding judge who was still

on the bench at the time the 2015 amendments became law.

                          Legislative Intent with SB 746

      Most of Appellee's arguments hinge upon language in Chapter 841 that

predates SB 746. SB 746 Section 40 requires a different interpretation of the

language that preceded it.The only language in SB 746 that provides guidance on

the exact issue of the continuing jurisdiction of the Montgomery County courts is

Section 40. Appellee did not direct the trial court to any language, added by SB

746, to Chapter 841 providing guidance on the exact issue of the continuing

jurisdiction of the Montgomery County courts after June 17, 2015, over civil

commitment cases in which the judgment was issued prior to June 17, 2015.

      The different versions of §841.041 in SB 746 demonstrate the progression of

the Legislature's intent to sever the ties between Chapter 841 cases and

Montgomery County district courts. The first version left to the discretion of “the


                                                                            46 of 94
presiding judge of the Second Administrative Judicial Region” where, except for

family courts, to assign new Chapter 841 cases. The version of §841.041(a)

enacted by the legislature required the new cases to be filed in the court of

conviction for the person's most recent sexually violent offense. This new language

severely limits the instances in which Montgomery County could be where new

Chapter 841 cases would be filed.

      As will be discussed in more detail below, while the Legislature tried to

provide guidance on where new cases were to be filed, it failed to specify where

old cases were to be transferred. However, in SB 746 Section 40, the Legislature

was unambiguous about its intent to terminate the jurisdiction of the Montgomery

County district courts over those Chapter 841 cases in which judgments and orders

of commitment had been issued prior to June 17, 2015.

      Since June 17, 2015 Chapter 841 provides for eight proceedings following

the initial civil commitment trial involving a judicial officer in Chapter 841 cases.

Those “post-commitment events” are: a trial or hearing conducted under

Subchapter F; a trial or hearing conducted under Subchapter G; a hearing to

modify the requirements imposed under §841.082(a), see §841.082(e); a biennial

review, see §841.102; a review of an Unauthorized Petition for Release, see

§841.122; a hearing on a Petition for Less Restrictive Housing and Supervision,


                                                                             47 of 94
see §841.0834(b); a review of a TCCO decision to return a person to more

restrictive housing and supervision, see §841.0834(d); and, a trial of a charge of

the violation of a civil commitment requirement, see §841.085. At the time Mr.

Pilgrim's Petition was filed Chapter 841 did not specify where any of these “post-

commitment events” must take place. In a case initiated after September 1, 2017,

all of these “post-commitment events”, with the exception of a trial for a criminal

violation of a civil commitment requirement, must take place in the court which

issued the judgment declaring the person to be a sexually violent predator. 26

Because the changes made by the 85th Legislature were not retroactive, Chapter

841 still does not specify, for a case in which the judgment of commitment was

entered before September 1, 2017, where these “post-commitment events” must,

should or may take place.

          Moreover, such is the state of Chapter 841, that it is confusing on the topic

of where new Chapter 841 cases must be initiated. The TDCJ is instructed to send

a notice when an inmate, who has a behavioral abnormality that makes the inmate

likely to engage in predatory acts of sexual violence, is about to be released. See

§841.023(b). The notice is sent to the local prosecutor with felony jurisdiction, i.e.

the attorney representing the state in civil commitment proceedings under Chapter

841, in the “county in which the person was most recently convicted of a sexually
26
     Code Crim. P. Art. 13.315 provides an array of counties where the charges may be tried.

                                                                                         48 of 94
violent offense.” Id. This indicates that the new civil commitment cases are

supposed to be initiated in the “county in which the person was most recently

convicted of a sexually violent offense.” However, §841.041 provides that:

           If a person is referred to the attorney representing the state
           under Section 841.023, the attorney may file, in the court of
           conviction for the person's most recent sexually violent offense,
           a petition alleging that the person is a sexually violent
           predator...
(Emphasis added.)

      In order to qualify for Chapter 841 commitment, a person must have at least

two convictions for sexually violent offenses. See §841.003. However, “the court

of conviction for the person's most recent sexually violent offense” might not be in

the “county in which the person was most recently convicted of a sexually violent

offense”. The person may have been convicted of his most recent sexually violent

offense in a county other than where he was most recently convicted of an earlier

sexually violent offense. By way of illustration: James has two convictions for

sexually violent offenses: 1) James committed his first offense on July 1, 2016 in

Harris County; 2) James went to Montgomery County and committed his second

offense on July 4, 2016; 3) James was arrested in Montgomery county the same

day as his second offense and convicted of that on offense August 1, 2016 in

Montgomery County; then, 4) James was transported back to Harris County where



                                                                             49 of 94
he was convicted of his first offense on August 4, 2016. In this example, James

was not convicted of his most recent offense in the same county where he was

most recently convicted. In this example, the notice sent by TDCJ would be sent to

Harris County (most recent conviction) not Montgomery County (most recent

offense); however, the Harris County District Attorney would presumably make

the decision whether to file a petition alleging James is an SVP.

      Furthermore, §841.041 provides additional ambiguity because it is

permissive. The attorney representing the state “may file, in the court of conviction

for the person's most recent sexually violent offense, a petition alleging that the

person is a sexually violent predator...” Id. The appropriate attorney representing

the state, also seems authorized to file a petition in the “county in which the person

was most recently convicted of a sexually violent offense.”

      Additional ambiguity is revealed by consideration of the titles of the various

documents used to institute litigation under Chapter 841. Petition is the title used

for documents initiating lawsuits in Texas state courts, including a Chapter 841

commitment lawsuit. See Tex. R. Civ. P. 22, 78-82. By labeling the documents by

which a person in Chapter 841 commitment seeks unauthorized release or less

restrictive housing and supervision, the Legislature has created the impression that

those “proceedings” constitute new lawsuits which could then be initiated in any


                                                                              50 of 94
court with jurisdiction. This impression is illustrated in In re Commitment of Keen,

462 S.W. 524 (Tex. App.—Beaumont 2015, no pet.). In Keen, Keen contested the

denial of his unauthorized petition for release without a hearing. Id. at 525. In

determining that their Court had jurisdiction of Keen’s appeal, the Beaumont Court

of Appeals held that “[t]he denial of Keen’s unauthorized petition concluded a

discrete phase of the SVP Proceeding”…as “[t]he sole issue before the trial court

was whether Keen demonstrated grounds for his release.” Id. at 527.

      Code Crim. P. Art. 13.315, amended by SB 746 section 29, provides further

evidence that the Legislature was focused on terminating the jurisdiction of the

Montgomery County courts and not on where those cases would go. Prior to June

17, 2015, a criminal charge for violation of a Chapter 841 commitment

requirement (§841.085) could be prosecuted in “the county in which any element

of the offense occurred or Montgomery County.” SB 746 deleted Montgomery

County as a potential venue and substituted “the court that retains jurisdiction over

the civil commitment proceeding under Section 841.082, Health and Safety Code.”

The phrase “the court that retains jurisdiction over the civil commitment

proceeding under Section 841.082” creates ambiguity where “the committing

court” would have left none. The ambiguity of Code Crim. P. Art. 13:315 is

compounded by the failure to amend §§841.082(d) and (e) to specify that the


                                                                             51 of 94
“committing” court would retain jurisdiction.

       The term “the court”, as used in Chapter 841, is also ambiguous because,

rather than a reference to a particular judicial body, the term is used to distinguish

a court (as the decision maker) from CSOT, OVSOM and/or TCCO. Chapter 841

has from the beginning divided responsibilities between the “judge” and “court” on

one hand27 and the state agency responsible for administering Chapter 841

commitment. Among the responsibilities assigned to the agency were: determining

the treatment program and coordinating the treatment and supervision. Chapter 841

also assigned responsibilities to the judge and/or court with jurisdiction over the

person. The responsibilities of both have changed over the years. The judge/court

was initially responsible for controlling where the person lived. TCCO gradually

assumed that responsibility: first, the 2005 amendments switched the authority to

decide where a person ordered into SVP civil commitment would reside from the

judge to CSOT (live in a location approved by OVSOM); later giving OVSOM

total control to tell the men where to live (live where instructed by TCCO). Even

before this transfer of authority, OVSOM/TCCO moved men from one facility to

another in Austin, moved men from a half-way house in Houston to a residential

neighborhood in Houston (Houston Chronicle articles), and allowed a few men

27
     The term “judge” has been replaced by the term “court.” Obviously the term judge referred
to a decision maker.

                                                                                       52 of 94
“Independent Living” as part of the final stage of the Outpatient Sexually Violent

Predator Treatment Program without judicial approval. It is reasonable to interpret

the term “the court” as used in Chapter 841 to distinguish a judicial body from the

agency responsible for the treatment and supervision of SVPs.

      Code Crim. P. Art. 13.315, amended by SB 746 section 32, provides further

evidence that the Legislature was focused on terminating the jurisdiction of the

Montgomery County courts rather than where those cases would go. Prior to June

17, 2015, a criminal charge for violation of a Chapter 841 commitment

requirement (§841.085) could be prosecuted in “the county in which any element

of the offense occurred or Montgomery County.” SB 746 deleted Montgomery

County as a potential venue and substituted “the court that retains jurisdiction over

the civil commitment proceeding under Section 841.082, Health and Safety Code.”

The phrase “the court that retains jurisdiction over the civil commitment

proceeding under Section 841.082” creates ambiguity where “the committing

court” would have left none. The ambiguity of Code Crim. P. Art 13:315 is

compounded by the failure to amend §§841.082(d) and (e) to specify that the

“committing” court would retain jurisdiction.

                                 CONCLUSIONS

      Reading all subsections of SB 746 Section 40 together unambiguously


                                                                             53 of 94
establishes the Legislature's intent to terminate the jurisdiction of the district courts

of Montgomery County over Mr. Pilgrim on June 17, 2015. There is no other

reasonable interpretation of the words chosen by the Legislature, and Appellee

offers no other reasonable interpretation.

         With the exception of the exclusion of Montgomery County, Chapter 841 is

ambiguous regarding several issues. The legislature has provided no instruction

with respect to where persons committed prior to September 1, 2017 will have

their new civil commitment issues resolved.28 SB 746 provided no clear guidance

and the changes enacted by SB 1576 are prospective only. Persons committed

after September 1, 2017 will have their civil commitment issues resolved by the

court which enters the judgment committing them to treatment and supervision

pursuant to Chapter 841.

THIRD ISSUE

The 2015 Legislature did not confer exclusive jurisdiction over Chapter 841 cases:

on a court other than a district court; on another tribunal; on an administrative

body; or, on a particular court other than Travis County district courts. As a

consequence, Chapter 841 cases fall within the subject matter of the Travis County

district courts, courts of general jurisdiction.


28
     The fact that the 2017 Amendments are not retroactive is addressed below.

                                                                                 54 of 94
DISCUSSION

      The Legislature obviously knew it was changing where new Chapter 841

cases would be filed and tried under the 2015 version of Chapter 841. With this in

mind, the 2015 Legislature could have readily specified which court would be

responsible for post-commitment Chapter 841 proceedings.

      By amending §§841.082(d) and (e), to read as follows:

             (d) The committing court retains jurisdiction of the case with
             respect to a civil commitment proceeding conducted under
             Subchapters F and G.
             (e) The requirements imposed under Subsection (a) may be
             modified, by the committing court, at any time after notice to
             each affected party to the proceedings and a hearing.

the Legislature demonstrated that: 1) it recognized that the 2015 version of Chapter

841 was ambiguous about where post-commitment proceedings were to be

addressed; and, 2) it knew how to identify a particular court.

      By inserting a reference to “committing court” in 2017 the Legislature

acknowledged that Chapter 841 was ambiguous about where “post-commitment”

proceeding were to be held. This recognition that the 2015 version of Chapter 841

was ambiguous establishes that the Legislature knew SB 746 had not conferred

jurisdiction over Chapter 841 cases to another tribunal, administrative body or a

particular court.



                                                                            55 of 94
      If the Legislature intended the “committing” court to be the sole court to rule

on a Petition for Less Restrictive Housing and Supervision, the simplest and most

direct method to convey that intent would have been to say: “...a committed person

may file a petition with the committing court for transfer to less restrictive housing

and supervision.” (Compare §841.0834(b)) “The committing court shall grant the

transfer if it determines that the transfer is in the best interests of the person and

conditions can be imposed that adequately protect the community.” would have

left no ambiguity about the legislature's intent. (Compare §841.0834(b).) The 2015

version of Chapter 841 did not specifically confer jurisdiction over all Chapter 841

post-commitment proceedings (or even Petitions for Less Restrictive Housing and

Supervision) on a court other than a district court, other tribunal or administrative

body OR a specific district court going forward from June 17, 2015.

      Nor did the Legislature resolve where post-commitment Chapter 841

proceedings, in cases in which the judgment was entered prior to June 17, 2015,

would be handled. If, in 2015, the Legislature had intended for the court that

entered the judgment ordering commitment to address all post-commitment

Chapter 841 proceedings, it would have ordered the “committing court” to handle

all Chapter 841 proceedings and made that command retroactive. By failing to do

either of the above, the Legislature rendered the 2015 version of Chapter 841


                                                                              56 of 94
ambiguous with respect to which court was required to, should or might resolve

post-commitment Chapter 841 disputes, including Petitions for Less Restrictive

Housing and Supervision. This ambiguity establishes that the 2015 version of

Chapter 841 did not confer exclusive jurisdiction over all Chapter 841 proceedings

on a tribunal other than a district court, an administrative body or a particular

district court.

                                 CONCLUSION

The 2015 Legislature did not confer exclusive jurisdiction over Chapter 841 cases:

on a court other than a district court; on another tribunal; on an administrative

body; or, on a particular court other than Travis County district courts. As a

consequence, Chapter 841 cases (including Mr. Pilgrims' Petition for Less

Restrictive Housing and Petition) fall within the subject matter of the Travis

County district courts.

FOURTH ISSUE

The 2017 Legislature did not confer exclusive jurisdiction over all Chapter 841

cases: on a court other than a district court; on another tribunal; on an

administrative body; or, on a particular court other than Travis County district

courts. The fact that the 2017 version of Chapter 841 confers continuing

jurisdiction over cases to the court issuing a judgment ordering commitment after

                                                                           57 of 94
September 1, 2017 establishes that exclusive jurisdiction over Chapter 841 cases is

NOT conferred on a court other than a district court, another tribunal or an

administrative body. The 2017 version of Chapter 841 does not confer exclusive

jurisdiction over any Chapter 841 case in which the judgment was entered before

September 1, 2017, e.g. Mr. Pilgrim's case.

DISCUSSION

      Mr. Pilgrim incorporates all of the discussion of Issue Three herein. The

2017 version of Chapter 841 confers jurisdiction over pre-commitment

proceedings, Petitions of Less Restrictive Housing, Petitions for Return to Less

Restrictive Housing, trials and hearings associated with biennial reviews, trials and

hearings associated with Petitions for Release, and motions to modify requirements

imposed pursuant to § 841.082(a) on the “committing court”. The changes to

Chapter 841 which grant continuing jurisdiction to the court that entered the

judgment ordering commitment became effective on September 1, 2017.

      Texas Constitution Article I, Section 16 prohibits retroactive statutes.

Retroactive laws are regarded with disfavor. Deacon v. City of Euless, 405 S.W.2d

59, 61 (Tex.1966). “A statute is presumed to be prospective in its operation unless

expressly made retrospective.” Tex. Gov’t Code Ann. § 311.022 (West 2005).

Statutes are only applied retroactively if the statutory language provides that the


                                                                             58 of 94
legislature intended that the statute be retroactive. Merchants Fast Motor Lines,

Inc. v. Railroad Comm’n, 573 S.W.2d 502, 504 (Tex. 1978). Statutes will not be

applied retrospectively unless it appears by fair implication from the language used

that it was the intent of the Legislature to make it applicable to both past and future

transactions. State v. Humble Oil & Refining Co., 141 Tex. 40, 169 S.W.2d 707,

708-709 (1943).

         There is nothing in the language of SB 1576 that indicates the Legislature

intended its provision to apply retrospectively. Rather there are specific indications

that the Legislature intended the amendments to apply prospectively. Section 48

specifically states that the bill becomes effective September 1, 2017. Section 45

specifically provides that petitions filed before the effective date of the bill are

controlled by the law in effect at the time the petition was filed.29

         As used in amended § 841.082, “the committing court” must only refer to a

court committing a person AFTER the effective date of SB 1576. To apply the

language “the committing court” to individuals committed before the effective date

of SB 1576 (September 1, 2017) would give SB 1576 retroactive effect.

         If the legislature had intended to vest exclusive continuing jurisdiction over

all Chapter 841 proceedings including those in which the judgment of commitment
29
     It is not clear whether the legislature intended the second sentence of Section 45 to apply only
     to the requirement of service of a petition or to all changes made by SB 1756. Section 45
     clearly reflects the legislature's intent for the changes made by SB 1576 to be prospective.

                                                                                             59 of 94
was entered prior to September 1, 2017, all it had to do was say so. The legislature

did not say: “the committing court shall have exclusive continuing jurisdiction

over all Chapter 841 judicial proceedings.”; or, “The change in the law in amended

Section 841.082(d) and (e), Health and Safety Code, applies to all cases brought

pursuant to Chapter 841 whether initiated before, on or after the effective date of

this Act.” That the legislature knew how to make a change in the law retroactive is

established by SB 746 Sections 40 and 41. In section 40(a) the Legislature said in

pertinent part:

               the changes in law made by this Act to Chapter 841...apply to a
               civil commitment proceeding under that chapter that is initiated
               on or after the effective date of this Act, regardless of when the
               applicable petition for civil commitment was filed.

In SB 746 section 41 the legislature said, in pertinent part:

               The change in law made by this Act in amending Section
               841.085, Health and Safety Code, applies to an offense
               committed before, on or after the effective date of this Act...

The legislature did not incorporate any similar language in SB 1576 that would

indicate that it intended the changes to subsections 841.082(d) or (e) to be

retroactive.

      While Article V, Section 8 might confer subject matter jurisdiction over this

lawsuit on Mr. Pilgrim's “committing court”, it does not deny subject matter

jurisdiction to the district courts of Travis County, i.e. the committing court would

                                                                                60 of 94
not have exclusive jurisdiction over this lawsuit. The trial court ruled that, after

Senate Bill 746, the District Courts of Montgomery County do not have

jurisdiction over this matter. Since no court had exclusive jurisdiction over

Petitions for Less Restrictive Housing and Supervision, the district courts of Travis

County have subject matter jurisdiction over Mr. Pilgrim's claims.

                                      CONCLUSION

         The 2017 Legislature did not make its grant of continuing jurisdiction to the

“committing court” retroactive. As a consequence, continuing jurisdiction over

Chapter 841 cases in which the judgment ordering commitment was issued prior to

September 1, 2017 was not granted to the courts that issued those judgments. The

judgment ordering Mr. Pilgrim's commitment was entered on October 24, 2014.

Mr. Pilgrims' Petition for Less Restrictive Housing and Petition was filed February

28, 2017. Exclusive jurisdiction over Mr. Pilgrim's Petition for Less Restrictive

Housing and Supervision was not granted to the Court that entered the judgment

ordering his commitment and therefore, falls within the subject matter of the Travis

County district courts.

FIFTH ISSUE

         The common sense, ordinary, everyday meaning30 of the term “committing

court” in § 841.082 is “the trial court which issued the judgment ordering
30
     Texas Gov't Code § 311.011(a).

                                                                              61 of 94
commitment” and NOT the court in which a person subject to a judgment ordering

commitment was convicted of his qualifying sex offenses.

DISCUSSION

      The legislature has utilized the term “committing court” in other statutes to

refer to the court that issued an order of commitment. See Tex. Code Crim. P. arts.

46B.107 and 46B.114. Tex. Code Crim. P. Ch. 46, Subch. E deals with civil

commitment of individuals, albeit in reference to criminal proceedings.

Nevertheless, when the legislature uses a word in a statute in one sense and with

one meaning, and thereafter uses the same word in describing the same subject

matter, it is understood that the latter word is used in the same sense and with the

same meaning as the former. Brown v. Darden, 121 Tex. 495, 50 S.W.2d 261, 263

(1932); see also Rylander v. Fisher Controls Int'l, Inc., 45 S.W.3d 291, 301 (Tex.

App.-Austin 2001, no pet.)(rejecting the Comptroller's attempt to give different

meanings to the same word in two statutes on the same subject matter). This rule of

statutory construction also applies when the words or phrases are substantially the

same. Brown, supra at 263.

                                  CONCLUSION

      In the event the trial court determined that it does not have jurisdiction over

Mr. Pilgrim's claim for less restrictive housing because: 1) § 841.082(d) is


                                                                             62 of 94
retroactive; and, 2) “committing court” means the court in which Mr. Pilgrim was

convicted of the sexually violent offenses that form the basis of his Chapter 841

commitment, then the trial court erred.

SIXTH ISSUE

      The trial court need not modify, or have jurisdiction to modify, the Order of

Commitment to grant Mr. Pilgrim less restrictive housing and supervision.

DISCUSSION

      Mr. Pilgrim does not seek modification of any order of commitment, he

seeks less restrictive housing and supervision (to be provided by TCCO). §

841.082(a) requires Mr. Pilgrim to reside where instructed and § 841.0834 requires

TCCO to provide Mr. Pilgrim less restrictive housing and supervision if less

restrictive housing and supervision would be in Mr. Pilgrim's best interest and

conditions can be placed upon Mr. Pilgrim that will adequately protect the

community. Jurisdiction to award Mr. Pilgrim less restrictive housing and

supervision has not been conferred upon any court other than a district court, other

tribunal, administrative agency, or any particular district court.

                                   CONCLUSION

      In the event the trial court based its decision that it lacks jurisdiction on the

contention that, in order to grant Mr. Pilgrim less restrictive housing and


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supervision, it would have to have jurisdiction to modify Mr. Pilgrim's order of

commitment, it erred.

SEVENTH ISSUE

The trial court erred in failing to issue findings of fact and conclusions of law.

DISCUSSION

      The Order granting Appellee's Plea to the Jurisdiction was based on

evidence in the record. Because there was a hearing on the jurisdictional plea and

the cause was dismissed based upon evidence in the record, the request for findings

of fact and conclusions of law were appropriate. Hernandez v. Texas Dep't of

Insurance, 923 S.W.2d 192 (Tex.App. Austin 1996). The trial court should have

issued findings of fact and conclusions of law.




                                                                                64 of 94
                                       Prayer

      Mr. Pilgrim prays that this Honorable Court reverse the judgment of the trial

court and find that the district courts of Travis County do have jurisdiction of his

Petition for Less Restrictive Housing and Supervision.

                                             Respectfully submitted,
                                             /s/ William A. Marshall
                                             William A. Marshall
                                             16011 Maplehurst Drive
                                             Spring, Texas 77379
                                             TBN 13048340
                                             Phone 713-301-2854
                                             billmarshallpm@gmail.com
                                             Attorney for Thomas R. Pilgrim

                             Certificate of Compliance
I hereby certify that, according to Adobe Open Office, the brief contains less than
11700 words as calculated pursuant to Tex. R. App. P. 9.4(i)(2)(E). The length of
this document is in compliance with the Texas Rules of Appellate Procedure.


                                       /S/ William A. Marshall
                                       William A. Marshall




                                                                             65 of 94
                             Certificate of Service
I hereby certify that on this 3rd day of January, 2017, a true copy of the foregoing
Appellant's Brief was filed and served, through the eFile Texas system, on the
Appellee as follows:

Texas Civil Commitment Office
c/o Richard Huntpalmer
Assistant Attorney General
Law Enforcement Defense Division
Office of the Attorney General
P.O. Box 12548, Capitol Station
Austin, Texas 78711
email: richard.huntpalmer@oag.texas.gov


                                      /s/ William A. Marshall
                                      William A. Marshall




                                                                            66 of 94
                      No. 03-17-00801-CV

                     In the Court of Appeals

             Third Supreme Judicial District of Texas




                      Thomas Ray Pilgrim
                                v.
                 Texas Civil Commitment Office

                     Appellant’s Appendix

Exhibit A:   Order Granting Plea to Jurisdiction

Exhibit B:   TCCO Motion to Transfer Venue

Exhibit C:   TCCO First Amended Motion to Transfer Venue

Exhibit D:   Pilgrim's Response to TCCO's First Amended
             Motion to Transfer Venue


Exhibit E:   Letter Ruling on TCCO's Motion to Transfer Venue

Exhibit F:   Order Denying TCCO's Motion to Transfer Venue

Exhibit G:   Judgment in First Chapter 841 Jury Trial

                                                          67 of 94
       EXHIBIT A
 ORDER GRANTING TCCO's
PLEA TO THE JURISDICTION




                           68 of 94
69 of 94
           EXHIBIT B

TCCO'S MOTION TO TRANSFER VENUE




                                  70 of 94
71 of 94
72 of 94
73 of 94
74 of 94
       EXHIBIT C

  TCCO's FIRST AMENDED
MOTION TO TRANSFER VENUE




                           75 of 94
76 of 94
77 of 94
78 of 94
79 of 94
80 of 94
81 of 94
82 of 94
                  EXHIBIT D

            APPELLANT'S RESPONSE TO
TCCO'S FIRST AMENDED MOTION TO TRANSFER VENUE




                                          83 of 94
84 of 94
85 of 94
86 of 94
87 of 94
       EXHIBIT E
 LETTER RULING ON TCCO's
MOTION TO TRANSFER VENUE




                           88 of 94
89 of 94
90 of 94
       EXHIBIT F
  ORDER DENYING TCCO's
MOTION TO TRANSFER VENUE




                           91 of 94
92 of 94
               EXHIBIT G

JUDGMENT IN FIRST CHAPTER 841 JURY TRIAL




                                           93 of 94
94 of 94
