                   IN THE SUPREME COURT OF TEXAS
                                                 444444444444
                                                    NO . 10-0605
                                                 444444444444


                          IN RE COMMITMENT OF MICHAEL BOHANNAN

             4444444444444444444444444444444444444444444444444444
                                ON PETITION FOR REVIEW FROM THE
                         COURT OF APPEALS FOR THE NINTH DISTRICT OF TEXAS
             4444444444444444444444444444444444444444444444444444


                                          Argued November 8, 2011


       JUSTICE HECHT delivered the opinion of the Court.


       We consider in this case what qualifications an expert must have to testify regarding whether

a person is a sexually violent predator and therefore subject to civil commitment for outpatient

treatment and supervision. Like the court of appeals,1 though for different reasons, we conclude that

the exclusion of expert testimony in this case requires a new trial.

                                                           I

                                                           A

       The Texas Civil Commitment of Sexually Violent Predators Act of 1999 defines a sexually

violent predator (“SVP”) as “a repeat sexually violent offender [who] suffers from a behavioral

abnormality that makes the person likely to engage in a predatory act of sexual violence.”2 The Act



       1
           ___ S.W .3d ___ (Tex. App.–Beaumont 2010).

       2
           T EX . H EALTH & S AFETY C O DE § 841.003(a).
defines “behavioral abnormality” as “a congenital or acquired condition that, by affecting a person’s

emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the

extent that the person becomes a menace to the health and safety of another person.”3 A person

found to be an SVP in a civil court proceeding must be ordered committed to outpatient treatment

and supervision.4

        Before the State files suit, a person must be administratively determined to be an SVP.5 The

Act requires that determination to be informed by an expert’s “clinical assessment based on testing

for psychopathy, a clinical interview, and other appropriate assessments and techniques”.6 Once suit

is filed, the Act gives both the State and the person the right to a further expert examination.7 If the

person is indigent, and the trial court determines that expert services are necessary, the court must

appoint an expert and approve reasonable compensation to be paid by the State.8

        The Act does not prescribe the qualifications for experts to testify whether a person has the

behavioral abnormality required for an SVP. It does provide that “[a] person who suffers from a

behavioral abnormality as determined under this chapter is not because of that abnormality a person



        3
            Id. § 841.002(2).

        4
            Id. § 841.081(a).

        5
           The determination must be made, at the recommendation of a multidisciplinary team, by either the Texas
Department of Criminal Justice for an inmate, or by the Department of State Health Services for someone adjudged not
guilty by reason of insanity. Id. §§ 841.021-.023.

        6
            Id. § 841.023(a).

        7
            Id. §§ 841.061(c), 841.145(a).

        8
            Id. §§ 841.145(b)-(d), 841.146(c).

                                                         2
of unsound mind for purposes of Section 15-a, Article I, Texas Constitution.”9 Section 15-a provides

in part that “[n]o person shall be committed as a person of unsound mind except on competent

medical or psychiatric testimony.”10 Thus, in the Legislature’s view, an expert used to assess

whether a person is an SVP is not constitutionally required to be a physician.

         The State must bring SVP commitment proceedings in “a Montgomery County district court

other than a family district court”.11 There are seven district courts in Montgomery County.12 One

is required to give preference to family cases.13 One other, the 435th District Court, is required to

give preference to SVP commitment proceedings.14 At present, most such proceedings are assigned

to that court.

                                                               B

         In September 1982, Michael Wayne Bohannan, then 26, married, and employed as a

machinist, rode his bicycle past K.C.’s home several times and watched her inside through a

window. One evening, he donned a ski mask and carrying a large knife, entered the home through

the rear door, walked down the hallway past a room in which a child was sleeping, and entered

         9
           Id. § 841.1461; see also id. § 841.001 (“The legislature finds that a small but extremely dangerous group of
sexually violent predators exists and that those predators have a behavioral abnormality that is not amenable to traditional
mental illness treatment modalities . . . . The legislature further finds that treatment modalities for sexually violent
predators are different from the traditional treatment modalities for persons appropriate for involuntary commitment
under [the Texas Mental Health Code].”).

         10
              T EX . C ON ST . art. I, § 15-a.

         11
              T EX . H EALTH & S AFETY C O D E § 841.041(a).

         12
              T EX . G OV ’T C O D E §§ 24.109, 24.110, 24.399, 24.461, 24.505, 24.562, and 24.579.

         13
              Id. § 24.562.

         14
              Id. § 24.579.

                                                               3
K.C.’s bedroom. She was lying on the bed, reading a newspaper. Bohannan forced her to perform

oral and vaginal sex, then left. Looking back on it, Bohannan testified in this case that he thought

he would get some satisfaction or self-fulfillment out of raping K.C., and in some way, he expected

K.C., 27, to “like being raped”.

        Some three weeks later, Bohannan was driving around on his lunch break when he saw P.H.,

27, enter her home. He stopped, put on his ski mask, picked up his knife, and walked through the

front door. P.H. was with a group of children, whom Bohannan made her move to another room.

He then took P.H. to her bedroom and forced her to perform oral and vaginal sex. He now recalls,

as before, he thought he would get some satisfaction from raping P.H., “maybe . . . feel more of a

man”.

        Bohannan was apprehended and in 1983 pleaded guilty to two counts of aggravated rape with

a deadly weapon, and was sentenced to 25 years’ imprisonment. Court papers suggest that he

committed a third rape for which he was not charged, but Bohannan denies it.

        In 1991, Bohannan was released on mandatory supervision. In April 1992, he was charged

with attempting to kidnap a nine-year-old girl in a K-Mart, and in February 1993, he pleaded guilty,

though he now denies he committed any crime. His mandatory supervision was revoked and he was

returned to prison.

        In 1998, Bohannan was again released on mandatory supervision, and in 2000 he moved to

South Carolina to live with his mother. While there, he was convicted of exposing his genitals to

an eight-year-old girl in a toy store and sentenced to three years’ imprisonment. Bohannan denies

that the allegations were true. In 2002, he was returned to prison in Texas.

                                                 4
         In 2004, Bohannan was released on mandatory supervision a third time. But in 2006, his

release was again revoked, this time for viewing child pornography on a computer in a county law

library. He was enrolled in sex offender therapy at the time. Bohannan denies that the charges were

true.

         Bohannan testified that he now knows that the rapes were wrong and devastating to the lives

affected.

                                                            C

         After receiving from the Texas Department of Criminal Justice a psychologist’s report that

Bohannan is an SVP, the State petitioned for his commitment. The State designated two experts to

testify at trial: Dr. Jack Randall Price, a board-certified forensic psychologist, and Dr. Michael R.

Arambula, a board-certified forensic psychiatrist. Bohannan designated Dr. Anna Shursen, whose

doctoral degree is in family sciences and family therapy. Shursen is licensed in Texas as a

professional counselor15 and as a sex offender treatment provider.16



         15
            See T EX . O CC . C O D E § 503.302(a) (“A person qualifies for a license [as a professional counselor] if the
person: (1) is at least 18 years old; (2) has a master’s or doctoral degree in counseling or a related field; (3) has
successfully completed a graduate degree at a regionally accredited institution of higher education and the number of
graduate semester hours required by board rule, which may not be less than 48 hours and must include 300 clock hours
of supervised practicum that: (A) is primarily counseling in nature; and (B) meets the specific academic course content
and training standards established by the board; (4) has completed the number of supervised experience hours required
by board rule, which may not be less than 3,000 hours working in a counseling setting that meets the requirements
established by the board after the completion of the graduate program described by Subdivision (3); (5) except as
provided by Subsection (b), passes the license examination and jurisprudence examination required by this chapter; (6)
submits an application as required by the board, accompanied by the required application fee; and (7) meets any other
requirement prescribed by the board.”).

         16
           To be licensed as a sex offender treatment provider, a person: must be licensed to practice in Texas as a
physician, psychologist, counselor, or one of several other specified professionals; must have 1,000 hours of clinical
experience in the areas of assessment and treatment of sex offenders within a seven-year period; and must have 40 hours
of continuing education training within three years. See 22 Tex. Admin. Code § 810.3(c).

                                                            5
       Trial in the case was set for January 16, 2009, in the 435th District Court. On December 15,

2008, a visiting judge in that court refused to allow Shursen to testify as an expert in another SVP

commitment proceeding, In re Dodson. Though Shursen had testified a dozen times in other such

cases, the judge stated on the record that she was “not qualified to present an opinion” on whether

someone is an SVP. On December 24, the State moved to exclude Shursen’s testimony in this case

for the same reason, having previously moved for an extension of time to file such a motion past the

deadline set by the court’s docket control order. On January 8, the regular judge of the 435th District

Court granted an extension and ordered the motion to exclude to be heard the first day of trial. On

January 20, after a jury was impaneled and sworn, the judge conducted a lengthy hearing on the

State’s motion, and at the end of the day, announced that he would take the matter under advisement

overnight. The next morning the court granted the motion, finding that “Shursen lacks the forensic

training and experience to answer the ultimate question”, viz, “whether [Bohannan] suffers from a

behavioral abnormality that predisposes him to commit predatory acts of sexual violence.”

Bohannan moved for a continuance for want of evidence, which the court denied, and the State

proceeded to present its case.

       Price testified that he entered practice in 1983 and turned to forensic work in 1990. He

teaches at the University of Texas Southwestern Medical Center at Dallas, the Southern Methodist

University Dedman School of Law, and Richland College, and has written extensively on

professional subjects. He stated that he has made from 25 to 30 SVP assessments, and in three to

five of them, found that the individuals did not have the requisite behavioral abnormality. Based on

prison records and a two-hour personal interview, Price concluded that Bohannan does have a

                                                  6
behavioral abnormality. Using the Diagnostic and Statistical Manual of Mental Disorders (“DSM”),

he diagnosed Bohannan as having “paraphilia not otherwise specified” — in lay terms, sexual

deviance — and “personality disorder not otherwise specified”. Price applied two actuarial tests

widely used to evaluate a sexual offender’s risk of recidivism: the Static-99 and the Minnesota Sex

Offender Screening Technique (“MnSOST”). Price scored Bohannan a “5” — moderately high risk

— on the Static-99 and a “10” — high risk — on the MnSOST.

       Arambula testified that he graduated from medical school, began training in general

psychiatry, and applied for a license to practice in the late 1980s. He teaches at the University of

Texas Health Science Center at San Antonio. He stated that he has done 16 or 17 SVP assessments

in the last three years, and in two of them, found that the individuals did not have a behavioral

abnormality. Based on available records and a three-hour personal interview, he concluded that

Bohannan does have a behavioral abnormality. He diagnosed Bohannan with “paraphilia not

otherwise specified with features of pedophilia, sadism, and exhibition” and with “personality

disorder not otherwise specified with features of antisocial conduct”. Arambula did not use actuarial

tests in evaluating Bohannan but concluded that he was at a high risk of reoffending in part because

his sexual misconduct has continued since the rapes, despite the therapy he has received, and has

involved children.

       Shursen testified outside the presence of the jury that she has been in private practice since

2000, providing behavioral therapy treatment for sex offenders. She stated that she has received

more than a 1,000 hours of training, sees more than 100 clients each week, and has made 18 SVP



                                                 7
assessments.17 Like Price and Arambula, she reviewed all of Bohannan’s records and interviewed

him personally. She scored him a “5” on the Static-99, the same as Price, and an “8”, a little lower,

on the MnSOST. She also determined from another diagnostic protocol, the Hare Psychopathy

Checklist, that Bohannan is not psychopathic. Shursen testified that in her opinion, based on

Bohannan’s records, her interviews with him, the actuarial tests, and her experience in the field,

Bohannan does not have a behavioral abnormality “at this time”. She was not asked to elaborate on

the qualification.

         The jury found that Bohannan suffers from a behavioral abnormality, as defined by statute,

that predisposes him to engage in a predatory act of sexual violence. The trial court issued an order

of civil commitment.18

         Bohannan appealed, as Dodson had in the other case in which Shursen’s testimony had been

excluded. The court of appeals decided Dodson first.19 It held that the statutory definition of

behavioral abnormality20 has two separate components: an acquired or congenital condition, and a

predisposition to commit a sexually violent offense.21 The second element, the court noted, was also


         17
            She testified that she found a behavioral abnormality in 20 to 30% of these cases, though the record does not
reflect a specific number.

         18
           Bohannan was ordered to reside in supervised housing, not to contact his victims, not to possess alcohol or
other drugs, to participate in treatment, to submit to tracking by a GPS monitor, not to change his residence or leave the
State without court approval, not to be in the presence of children, to notify his case manager of any changes in status,
and to provide blood and hair samples for the State’s DNA Data Bank. See T EX . H EALTH & S AFETY C O D E §§ 841.081-
.083.

         19
              In re Dodson, 311 S.W .3d 194 (Tex. App.–Beaumont 2010, pet. denied).

         20
              T EX . H EALTH & S AFETY C O D E § 841.002(2).

         21
              Dodson, 311 S.W .3d at 199.

                                                               8
part of the definition of an SVP — someone “likely to engage in a predatory act of sexual

violence.”22 The court concluded in Dodson that while medical evidence is necessary to prove the

existence of a condition, it is not necessary to prove a predisposition to sexually violent behavior.23

Someone like Shursen, trained in applying actuarial tests evaluating the risk of recidivism, and

experienced in recognizing that risk among her patients, is qualified to testify whether a person

satisfied that part of the definition of behavioral abnormality.24 The court determined that the

exclusion of Shursen’s testimony was harmful error and remanded the case for a new trial.25 In the

present case, the court reached the same result for the same reasons.26

       We granted the State’s petition for review.27

                                                             II

       To begin with, we do not agree with the court of appeals’ bisection of the statutory definition

of behavioral abnormality. The definition, again, is this:

       “Behavioral abnormality” means a congenital or acquired condition that, by affecting
       a person’s emotional or volitional capacity, predisposes the person to commit a
       sexually violent offense, to the extent that the person becomes a menace to the health
       and safety of another person.28


       22
            T EX . H EALTH & S AFETY C O D E § 841.003(a).

       23
            Dodson, 311 S.W .3d at 199-200.

       24
            Id. at 200.

       25
            Id. at 202-204.

       26
            ___ S.W .3d ___ (Tex. App.–Beaumont 2010).

       27
            Tex. Sup. Ct. J. (June 10, 2010).

       28
            T EX . H EALTH & S AFETY C O D E § 841.002(2).

                                                             9
Boiling it down, a behavioral abnormality is “a . . . condition that . . . predisposes” sexually violent

conduct. The modifier, “predisposes”, qualifies and describes “condition”. The required condition

is the predisposition. The condition has no other qualities, other than that it can be congenital or

acquired. The condition and predisposition are one and the same. The definition might more clearly

be written:

        “Behavioral abnormality” means a congenital or acquired predisposition, due to one’s
        emotional or volitional capacity, to commit a sexually violent offense, to the extent
        that the person becomes a menace to the health and safety of another person.

The condition and predisposition cannot be separate things, as the court of appeals tried to make

them.

        The concern regarding the predisposition is, of course, the heightened risk of offense. That

concern is reiterated in the statutory definition of an SVP as “a repeat sexually violent offender

[who] suffers from a behavioral abnormality that makes the person likely to engage in a predatory

act of sexual violence.”29 The court of appeals in Dodson took this reiteration as further indication

that the predisposition (or risk) and the condition required for a behavioral abnormality are separate

things. We think a careful analysis of the definition of an SVP does not support the court’s position.

        Substituting the definition of “behavioral abnormality” for that term in the definition of an

SVP yields this:

        A person is a sexually violent predator . . . if the person . . . suffers from [a congenital
        or acquired condition




        29
             Id. § 841.003(a) (emphasis added).

                                                    10
       {Qualifier A} that, by affecting a person’s emotional or volitional capacity,
       predisposes the person to commit a sexually violent offense, to the extent that the
       person becomes a menace to the health and safety of another person]

       {Qualifier B} that makes the person likely to engage in a predatory act of sexual
       violence.

We see only two possible differences in the two qualifiers. One is that a predisposition to

misconduct may not make a person likely to engage in it, or vice versa, that a person may be likely

to engage in misconduct though not predisposed to do so. We think the import of predisposition and

likelihood is exactly the same: increased risk. An increased likelihood of misconduct indicates a

predisposition, and a predisposition threatens increased likelihood. In this regard, the two qualifiers

are the same. The other possible difference between them is that a menacing offender may not be

predatory, or vice versa, that a predator may not be a menace. If such a distinction were possible,

and we do not think it is, nothing in the Act suggests that it is intended. Thus, Qualifier B simply

explains or restates Qualifier A. Its inclusion in the definition of an SVP certainly does not suggest

that Qualifier A is a separate element of the definition of behavioral abnormality.

       Accordingly, we conclude that whether a person “suffers from a behavioral abnormality that

makes the person likely to engage in a predatory act of sexual violence”30 is a single, unified issue.

                                                           III

       As already noted, the Act does not prescribe the qualifications an expert must have to opine

on whether a person is an SVP, and it contains only two provisions relevant to the issue.




       30
            T EX . H EALTH & S AFETY C O D E § 841.003(a)(2).

                                                           11
         One is the statement that “[a] person who suffers from a behavioral abnormality . . . is not

because of that abnormality a person of unsound mind”.31 The obvious purpose of this provision,

entitled “Certain Expert Testimony Not Required”, is to express the Legislature’s view that medical

and psychiatric testimony, a constitutional prerequisite for committing a person of unsound mind,32

is unnecessary in SVP proceedings. The statutory provision was added to the Act after, and perhaps

in response to, the court of appeals’ decision to the contrary in an early case.33 Bohannan argues that

the statute overrules the court’s decision, but while the Legislature may certainly state its view of a

constitutional provision, an authoritative construction is a matter for the courts.34 The State does not

address the issue but obviously takes the position by its trial conduct — relying on the opinion of a

psychologist — that irrespective of whether the constitution requires medical evidence for

commitment of an SVP, it does not render other expert testimony inadmissible. Thus, both parties

agree that the constitution does not preclude evidence in an SVP commitment proceeding from an

expert who is not a physician. Accordingly, we assume without deciding that the constitution is no

impediment to the admission of non-medical expert testimony in an SVP commitment proceeding.35

         31
              Id. § 841.1461.

         32
              T EX . C ON ST . art. I, § 15-a.

        33
           Beasley v. Molett, 95 S.W .3d 590, 598 (Tex. App.–Beaumont 2002, pet. denied); but cf. Dudley v. State, 730
S.W .2d 51, 54 (Tex. App.–Houston [14th Dist.] 1987, no writ) (“W e do not interpret the [constitutional] phrase
‘committed as a person of unsound mind’ as including a person committed as an alcoholic. Rather, we view the
constitutional provision as pertaining to a person suffering from mental illness . . . .”).

        34
           W. Orange-Cove Consol. Indep. Sch. Dist. v. Alanis, 107 S.W .3d 558, 563 (Tex. 2003) (“The final authority
to determine adherence to the Constitution resides with the Judiciary.”) (citing Marbury v. Madison, 5 U.S. (1 Cranch)
137, 176-178 (1803), and Love v. Wilcox, 28 S.W .2d 515, 520 (Tex. 1930)).

        35
            And we express no view on whether the constitution requires that commitment be based on medical or
psychiatric testimony.

                                                         12
         The other provision of the Act relevant to expert qualifications states that at the

administrative stage, an “expert shall make a clinical assessment based on testing for psychopathy,

a clinical interview, and other appropriate assessments and techniques”.36 Obviously, the expert

must have the training and experience necessary to perform as required — to test for psychopathy,

to conduct a clinical interview, and to employ other appropriate evaluative procedures. The Act

gives no reason to think that the qualifications of trial experts should be any different.

         Absent more specific statutory direction, we apply the general rule, which is that an expert

must be qualified “by knowledge, skill, experience, training, or education” to “assist the trier of fact

to understand the evidence or to determine a fact in issue”.37 That a witness has knowledge, skill,

expertise, or training does not necessarily mean that the witness can assist the trier-of-fact. Expert

testimony assists the trier-of-fact when the expert’s knowledge and experience on a relevant issue

are beyond that of the average juror and the testimony helps the trier-of-fact understand the evidence

or determine a fact issue.38

         Credentials are important, but credentials alone do not qualify an expert to testify. We have

observed, for example, that “a medical license does not automatically qualify the holder ‘to testify

as an expert on every medical question.’”39 “Trial courts must ‘ensur[e] that those who purport to


         36
              T EX . H EALTH & S AFETY C O D E § 841.023(a).

         37
              T EX . R. E VID . 702.

         38
              K-Mart Corp. v. Honeycutt, 24 S.W .3d 357, 360 (Tex. 2000) (citations omitted).

         39
             Roberts v. Williamson, 111 S.W .3d 113, 121 (Tex. 2003) (quoting Broders v. Heise, 924 S.W .2d 148, 152
(Tex. 1996)); see also Gammill v. Jack Williams Chevrolet, Inc., 972 S.W .2d 713, 719 (Tex. 1998) (“Just as not every
physician is qualified to testify as an expert in every medical malpractice case, not every mechanical engineer is qualified
to testify as an expert in every products liability case.”).

                                                               13
be experts truly have expertise concerning the actual subject about which they are offering an

opinion.’”40 The test is “whether ‘the offering party [has] establish[ed] that the expert has

“knowledge, skill, experience, training, or education” regarding the specific issue before the court

which would qualify the expert to give an opinion on that particular subject.’”41

        In evaluating an expert’s qualifications, it is important to keep in mind that expert testimony

must be relevant and reliable.42 “To be relevant, the proposed testimony must be sufficiently tied

to the facts of the case that it will aid the jury in resolving a factual dispute.”43 Determining whether

an expert’s theory or technique is reliable requires consideration of all pertinent factors, including

        (1)         the extent to which the theory has been or can be tested;

        (2)         the extent to which the technique relies upon the subjective interpretation of
                    the expert;

        (3)         whether the theory has been subjected to peer review and/or publication;

        (4)         the technique’s potential rate of error;

        (5)         whether the underlying theory or technique has been generally accepted as
                    valid by the relevant scientific community; and

        (6)         the non-judicial uses which have been made of the theory or technique.




       40
             Gammill, 972 S.W .2d at 719 (quoting Broders, 924 S.W .2d at 152).

        41
             Roberts, 111 S.W .3d at 121 (quoting Broders, 924 S.W .2d at 153).

       42
             State v. Cent. Expressway Sign Assocs., 302 S.W .3d 866, 870 (Tex. 2009).

       43
             E. I. du Pont de Nemours & Co. v. Robinson, 923 S.W .2d 549, 556 (Tex. 1995) (internal quotations omitted).

                                                           14
These factors may be difficult to apply to an opinion that is based heavily on an expert’s individual

skill, experience, or training. In no case, however, may expert testimony be admitted when “‘there

is simply too great an analytical gap between the data and the opinion proffered.’”44

        In SVP commitment proceedings, the only fact issue to be resolved by the trier-of-fact is

whether a person has the behavioral abnormality required for an SVP. The approach of all three

experts in this case was consistent with the little guidance provided by the Act. All agreed that in

assessing whether a person has the behavioral abnormality for an SVP, all available information

should be considered, and that the person should be interviewed. They also suggest that a medical

diagnosis should be made and actuarial risk tests should be applied. Still, “[o]pinions about behavior

. . . and psychology depend largely on the subjective interpretation of the expert”,45 and opinions “too

dependent upon [an expert’s] subjective guesswork” must be excluded.46 The expert’s experience,

knowledge, and training are crucial in determining whether the expert’s opinions are admissible.

        A medical diagnosis of a person’s mental health may certainly inform an assessment of

whether he has an SVP’s behavioral abnormality, but the principal issue in a commitment proceeding

is not a person’s mental health but whether he is predisposed to sexually violent conduct. And in

deciding that issue, as this case makes clear, the kind of evaluation done by a psychologist may be

at least as important as a medical diagnosis. The usefulness of the expert’s opinion in assisting the

trier-of-fact rests not on the type of license the expert holds but on the expert’s knowledge, training,


       44
            Gammill, 972 S.W .2d at 727 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).

       45
            S.V. v. R.V., 933 S.W .2d 1, 42 (Tex. 1996) (Cornyn, J., concurring).

       46
            Transcon. Ins. Co. v. Crump, 330 S.W .3d 211, 217 (Tex. 2010).

                                                          15
and experience in dealing with sexual offenders. A person’s training and experience in clinical

interviews and actuarial tests is no less helpful merely because the person is not licensed as a

psychologist.

         We see no basis for limiting the experts who can testify in SVP commitment proceedings to

physicians and psychologists. The purpose of the Act is to reduce the risk of those who are

behaviorally predisposed to sexually violent conduct. An expert thoroughly acquainted with sexual

offenders’ behavior may be qualified to assess the risk a person poses to others. Accordingly, we

hold that a person is not disqualified from testifying as an expert in an SVP commitment proceeding

merely because the person is not licensed as a physician or psychologist.47

                                                         IV

         We turn finally to whether the exclusion of Shursen’s testimony was harmful error.

         Though Shursen lacks medical or psychological training, she has broad experience in dealing

with sexual offenders. She is licensed by the State to provide treatment for sexual offenders, and

while that license may not in itself qualify her as an expert on SVPs, she has also spent more than

1,000 hours in that work to obtain her license and continues to see more than a 100 patients a week.

She testified that she receives continuing instruction, some of which is geared to applying and

interpreting actuarial tests and to commitment assessments. She is qualified to apply such tests and

has testified repeatedly in commitment proceedings.




         47
            We need not exclude all possibility that a medical diagnosis might be important in making a risk assessment
in a particular case because the State did not object to Bohannan’s evidence on that basis.

                                                          16
       The State argues that Shursen is qualified to assess the risk that a person will engage in

sexually violent conduct only for the purpose of providing treatment, and not for the purpose of

commitment proceedings. The State notes that by statute, experts on incompetency and insanity in

criminal proceedings must be licensed physicians or psychologists.48 But the absence of any such

statutory requirement in SVP commitment proceedings tends to contradict the State’s argument.

While the Legislature has discretion to set requirements for expert testimony on specific issues, when

the Legislature has not done so, the State’s attempted distinction between between risk assessments

for purposes of treatment and those for purposes of civil commitment is unfounded.

       Risk assessments are to a degree subjective, and in evaluating an expert’s qualifications to

make them, it is important to know what training and experience an expert has in minimizing that

subjectivity. Here, Shursen used the same well-recognized actuarial tests that Price used and was

prepared to defend her scoring, based on Bohannan’s records and her interview with him.

Furthermore, Arambula testified that the risk assessments he uses in SVP proceedings are the same

as those he uses in treating sex offenders.

       The trial court’s discretion in determining whether an expert is qualified to testify on a matter

is broad49 but not unbounded. A trial court abuses its discretion when it excludes relevant and

reliable evidence.50 Most SVP commitment proceedings are conducted in a single district court

before a few judges, and appeals are almost always heard by one court of appeals. From the record


       48
            T EX . C OD E C RIM . P RO C . arts. 46B.022, 46C.102.

       49
            Broders v. Heise, 924 S.W .2d 148, 151 (Tex. 1996).

       50
            State v. Cent. Expressway Sign Assocs., 302 S.W .3d 866, 870 (Tex. 2009).

                                                               17
before us, the trial court appears to have determined that Shursen is unqualified to testify, not for

reasons peculiar to her experience and training, but because she is not a physician or psychologist.

In this context, we think a more careful review of the trial court’s ruling is warranted.

       We conclude that the trial court abused its discretion in excluding Shursen’s testimony. The

State does not challenge the court of appeals’ holding that the exclusion was harmful, and therefore

we do not consider the issue.

                                          *       *       *

       For the reasons given, the judgment of the court of appeals is

                                                                                            Affirmed.




                                              Nathan L. Hecht
                                              Justice

Opinion delivered: August 31, 2012




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