                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-14-00406-CV
                             ____________________

               IN RE COMMITMENT OF PAUL KEEN
__________________________________________________________________

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                    Trial Cause No. 01-11-07041 CV
__________________________________________________________________

                                    OPINION

      In May 2002, Paul Keen was civilly committed as a sexually violent

predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 &

Supp. 2014). In July 2014, Keen filed an unauthorized petition for release. The trial

court denied Keen’s petition, finding that probable cause did not exist that Keen’s

behavioral abnormality had changed to the extent that he is no longer likely to

engage in a predatory act of sexual violence. In two appellate issues, Keen

contends that: (1) this Court has jurisdiction to consider his appeal from the denial

of his petition; and (2) the trial court improperly applied the probable cause



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standard when denying his petition. We reverse the trial court’s judgment and

remand the case for further proceedings consistent with this opinion.

                                       Jurisdiction

       In issue one, Keen argues that this Court has jurisdiction over his complaint

challenging the denial of his unauthorized petition for release. Absent statutory

authority, an appellate court only has jurisdiction over final judgments. Bison Bldg.

Materials, Ltd. v. Aldridge, 422 S.W.3d 582, 585 (Tex. 2012). A final judgment (1)

disposes of all pending claims and parties; or (2) clearly and unequivocally states

that it finally disposes of all claims and parties. Id.

       A person committed as an SVP has a right to file with the trial court an

unauthorized petition for release. Tex. Health & Safety Code Ann. § 841.122

(West 2010); In re Commitment of Fisher, 164 S.W.3d 637, 642 (Tex. 2005). The

trial court shall deny the unauthorized petition, without a hearing, if: (1) the

petition is frivolous; (2) the petitioner previously filed an unauthorized petition and

the trial court determined, on review or following a hearing, that the petition was

frivolous; or (3) the petitioner previously filed an unauthorized petition and the

trial court found, on review or following a hearing, that “petitioner’s behavioral

abnormality had not changed to the extent that the petitioner was no longer likely

to engage in a predatory act of sexual violence.” Tex. Health & Safety Code Ann.

                                            2
§ 841.123(c)(2)(B) (West 2010). The trial court is not required to deny a petition

“if probable cause exists to believe that the petitioner’s behavioral abnormality has

changed to the extent that the petitioner is no longer likely to engage in a predatory

act of sexual violence.” Id. § 841.123(d). If probable cause is found, the trial court

must hold a hearing and the State and petitioner both receive an immediate right to

examination of the petitioner by an expert. Id. § 841.124(a), (b) (West 2010). At

the hearing, the State must “prove beyond a reasonable doubt that the petitioner’s

behavioral abnormality has not changed to the extent that the petitioner is no

longer likely to engage in a predatory act of sexual violence.” Id. § 841.124(d).

      The denial of Keen’s unauthorized petition concluded a discrete phase of the

SVP proceeding. The sole issue before the trial court was whether Keen

demonstrated grounds for his release. See id. § 841.123(c), (d). The trial court

disposed of this issue by finding that “probable cause does not exist that the

behavioral abnormality of PAUL KEEN has changed to the extent that he is no

longer likely to engage in a predatory act of sexual violence.” The trial court

expressly “ORDERED that the unauthorized petition for release from civil

commitment filed herein by the committed person, PAUL KEEN, is in all things

DENIED.” There were no parties before the trial court other than Keen and the

State. Because the trial court’s order disposed of all pending claims and parties

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presented by Keen’s unauthorized petition for release, there was nothing left for

the trial court to resolve with respect to Keen’s petition. See Am. Gen. Fire & Cas.

Co. v. Vandewater, 907 S.W.2d 491, 493 (Tex. 1995) (“Since the trial court

judgment disposed of all parties and the one issue that was before it, it is a final

judgment which may be reviewed on appeal.”). Because the trial court’s order

constitutes an appealable final judgment, we have jurisdiction to consider Keen’s

complaint. See Aldridge, 422 S.W.3d at 585. We sustain issue one.

                    Denial of Unauthorized Petition for Release

      In issue two, Keen challenges the denial of his petition on grounds that

section 841.123 required the trial court to determine whether Keen’s petition was

frivolous and not whether probable cause existed to believe that his behavioral

abnormality had changed to the extent that he is no longer likely to engage in a

predatory act of sexual violence. We review statutory construction issues de novo.

Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). We construe the statute to

give effect to the Legislature’s intent. Id. “The plain meaning of the text is the best

expression of legislative intent unless a different meaning is apparent from the

context or the plain meaning leads to absurd or nonsensical results.” Id.

      In this case, the plain language of section 841.123(c) gives the trial court

authority to deny an initial petition for unauthorized release if the petition is

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frivolous. Tex. Health & Safety Code Ann. § 841.123(c). Keen’s petition for

unauthorized release is the first that he filed; thus, whether Keen’s petition was

frivolous is the standard the trial court should have applied. See id. A petition is

“frivolous” when it lacks a legal basis or legal merit. Black’s Law Dictionary 692

(8th ed. 2004).

      Attached to Keen’s petition was a report from psychologist Stephen A.

Thorne, dated October 2013. Thorne conducted the Hare Psychopathy Checklist –

Revised, which placed Keen in the low range of psychopathic characteristics.

Keen’s score on the Static-99R placed him in the moderate to high risk for re-

offense. Thorne stated that Keen meets the criteria for unspecified paraphilic

disorder, victim of non-parental child sexual abuse, and unspecified personality

disorder. He identified Keen’s risk factors: (1) sexually deviant behavior with

multiple young male victims, including stranger victims and undocumented

victims, (2) commission of offenses after his initial punishment and while under

mandatory supervision, (3) fascination with young males, (4) grooming behavior,

and (5) violation of the terms of his civil commitment. Thorne also outlined

mitigating factors, including Keen’s older age, no commission of a sexual offense

since 1991, no diverse criminal history, completion of sex offender treatment, lack




                                         5
of psychiatric difficulties, capacity to engage in age-appropriate employment and

relationships, and lack of substance abuse. Thorne concluded that:

      . . .Keen does not presently suffer from a behavioral abnormality that
      makes him likely to engage in a predatory act of sexual violence. Mr.
      Keen does, no doubt, likely have some personality traits that have
      negatively impacted his participation in both sex offender treatment
      and the civil commitment program and there are areas of his own
      personality and functioning that he would benefit from continued
      insight into. That being said, when considering all the available
      information, with particular emphasis on Mr. Keen’s age and the fact
      that from 2002 to 2012 (while living in the community) he is not
      accused of having engaged in any type of sexually deviant behavior,
      this examiner does not believe that Mr. Keen can presently be
      considered “likely” to engage in a predatory act of sexual violence.

      In an October 2013 letter, Susan Rivas, a program specialist for the

Office of Violent Sex Offender Management, requested that Keen remain in

the Civil Commitment Program under all previous conditions. She noted that

Keen was placed in an outpatient sexually violent predator treatment

program and that, since his last biennial report, Keen received sanctions for

rule violations. In a biennial assessment report, dated November 2013, two

licensed sex offender therapists stated that Keen had entered outpatient

treatment in November 2012, but he “remains sexually attracted to male

children as a matter of psychosexual make up[]” and they knew of no

“means that would pluck that out of him, or . . . how to permanently replace

his sexually deviant attraction with an appropriate sexual attraction to
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adults.” They recommended that Keen continue in the “Civil Commitment

Program where he can continue to reinforce the healthy cognitions and

appropriate boundaries he has developed in treatment.”

      The record does not demonstrate that Keen’s petition was lacking a legal

basis or legal merit. The only evidence before the trial court that addressed the

applicable standard for rejecting an unauthorized petition for release, that the

petition is frivolous, was the report from the State’s psychologist, Dr. Stephen A.

Thorne. Thorne concluded that Keen “does not presently suffer from a behavioral

abnormality that makes him likely to engage in a predatory act of sexual violence.”

Although probable cause may exist for the efficacy of continued treatment for

Keen, that is not the appropriate standard. Based on this evidence, we cannot

conclude that Keen’s petition was frivolous. For that reason, we reverse and

remand to the trial court to conduct further proceedings consistent with this

opinion.

      REVERSED AND REMANDED.

                                            ______________________________
                                                  STEVE McKEITHEN
                                                    Chief Justice

Submitted on February 5, 2015
Opinion Delivered April 23, 2015

Before McKeithen, C.J., Kreger and Johnson, JJ.
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