                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                            _________________
                             NO. 09-16-00072-CV
                            _________________


                       IN RE CLARENCE D. BROWN

________________________________________________________________________

                             Original Proceeding
             435th District Court of Montgomery County, Texas
                      Trial Cause No. 10-03-02609-CV
________________________________________________________________________

                                   OPINION

      In this mandamus proceeding, Clarence D. Brown complains that the trial

court abused its discretion by denying Brown’s motion for appointment of counsel,

by granting the State’s motion to place Brown in a tiered sex offender treatment

program, and by amending an order of civil commitment to require that Brown

participate in sex offender treatment and supervision provided by the Texas Civil

Commitment Office (TCCO). On October 21, 2015, the trial court signed the

orders to implement Brown’s transition from supervision and treatment by the

Office of Violent Sex Offender Management (OVSOM) to supervision and

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treatment by the TCCO pursuant to the 2015 statutory amendments to Chapter 841

of the Texas Health and Safety Code that the Legislature enacted in S.B. 746. See

Act of May 21, 2015, 84th Leg., R.S., ch. 845, §§ 1-44, 2015 Tex. Sess. Law Serv.

2701, 2701-12 (West). We conclude that Brown was entitled to counsel but for a

different reason than urged in his petition. We conditionally grant the petition in

part.

        Two of Brown’s complaints have been addressed and rejected in cases that

were decided after Brown filed his petition. First, Brown contends the trial court

denied his statutory right to outpatient treatment and argues that the civil

commitment procedure provided by Chapter 841 of the Texas Health and Safety

Code is unconstitutionally punitive. We rejected this same argument in In re

Williams, No. 09-16-00087-CV, 2016 WL 4249175, at *1-2 (Tex. App.—

Beaumont Aug. 11, 2016, orig. proceeding) (mem. op.), and in In re Commitment

of May, 2016 WL 4040186, at *4-6 (Tex. App.—Beaumont July 28, 2016, no pet.

h.). Second, Brown contends section 40(b) of S.B. 746, which required that the

trial court modify any civil commitment requirement imposed before the effective

date of the act that differs from any of the section 841.082 civil commitment

requirements as amended, violated the prohibition against retroactive laws. We




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rejected this same argument in Williams, 2016 WL 4249175, at *2, and in May,

2016 WL 4040186, at *6-8.

      In a supplemental petition, Brown contends the amended statute violates the

separation of powers clause of the Texas Constitution. See generally Tex. Const.

art. II, § 1. He argues that by applying the amendments to Chapter 841 to existing

civil commitments, the Legislature interfered with the court’s authority to enter

final judgments. The separation of powers doctrine, which prohibits one branch of

government from exercising a power belonging inherently to another, is violated

when the legislative branch interferes with the functioning of the judicial process

in a field constitutionally committed to the control of the courts. In re Dean, 393

S.W.3d 741, 747-48 (Tex. 2012) (orig. proceeding). Brown argues subsection

40(b) of S.B. 746 interferes with the judicial power to enter and execute a final

judgment. Because the trial court may modify any requirement of civil

commitment after notice and a hearing, we are unpersuaded that applying the 2015

amendments to Chapter 841 affected the finality of the 2010 judgment. See Tex.

Health & Safety Code Ann. § 841.082(e) (West Supp. 2015).

      Brown contends the trial court abused its discretion by denying his motion

for appointment of counsel. He argues due process required that counsel be

appointed to protect his liberty interest against being placed in total confinement.

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The State contends Brown did not have a right to have counsel appointed to

represent him in the hearing to modify the civil commitment order because it

occurred in a proceeding under Chapter 841, Subchapter E, which concerns the

administration of the sex offender treatment program. See id. §§ 841.081.-.085

(West Supp. 2015).

      Generally, an indigent litigant does not have a right to have counsel

appointed to represent him in a civil case. See Gibson v. Tolbert, 102 S.W.3d 710,

712-13 (Tex. 2003). However, Chapter 841 of the Texas Health and Safety Code

provides for appointment of counsel in certain circumstances. The Office of State

Counsel for Offenders (SCFO) represents an indigent person subject to a civil

commitment proceeding under Chapter 841 of the Texas Health and Safety Code.

See Tex. Health & Safety Code Ann. § 841.005(a) (West 2010). A “civil

commitment proceeding” is defined by statute as “a trial or hearing conducted

under Subchapter D, F, or G.” Id. § 841.002(3-a) (West Supp. 2015). Subchapters

D, F, and G concern the initial determination of a person’s status as a sexually

violent predator, the biennial review to determine whether probable cause exists to

believe that the person’s behavioral abnormality has changed to the extent that the

person is no longer likely to engage in a predatory act of sexual violence, and the

process for an authorized or an unauthorized petition for release. Id. § 841.061

                                        4
(West Supp. 2015), § 841.062 (West 2010), § 841.063 (West Supp. 2015), §

841.064 (West 2010), § 841.065 (West Supp. 2015), §§ 841.101-102 (West Supp.

2015), § 841.103 (West 2010), §§ 841.121-124 (West Supp. 2015).

      In Brown’s case, the biennial review process commenced on May 6, 2015,

with the Notice of Biennial Review. Brown had a statutory right to be represented

by SCFO counsel for the biennial review. Id. §§ 841.002(3-a), 841.005(a),

841.102(b). On May 21, 2015, the trial court appointed an attorney from SCFO to

represent Brown for the biennial review. The State served Brown with notice that it

was seeking a modification of the order of civil commitment on August 14, 2015,

while SCFO counsel was representing Brown on the biennial review of the civil

commitment order. The biennial review order was signed on November 9, 2015,

almost three weeks after the trial court signed the amended order of commitment.

Apparently, the parties treated the modification of the civil commitment

requirements as a separate proceeding completely disconnected from the ongoing

biennial review, and SCFO counsel did not attend the hearing on the State’s

motion to amend the civil commitment order.

      A hearing conducted under Subchapter E is not included in the definition of

a “civil commitment proceeding” in which SCFO represents an indigent person. Id.

§§ 841.002(3-a), 841.005(a). In addition, Subchapter E includes a provision for

                                        5
modifying a civil commitment requirement at any time. See id. § 841.082(e).

Section 40(b) of S.B. 746 required that the trial court modify an existing civil

commitment order to require the person’s participation in the newly created tiered

treatment program. See 2015 Tex. Sess. Law Serv. at 2711. However, one of the

functions of a biennial review is to determine whether a requirement imposed on

the person under Chapter 841 of the Texas Health and Safety Code should be

modified. See Tex. Health & Safety Code Ann. § 841.102(c)(1). Although the

hearing required by section 40(b) of S.B. 746 simply provided notice to Brown that

the commitment order was being modified to conform to the new sex offender

treatment program, the State’s motion and the trial court’s hearing on the motion

concerned modifying a civil commitment requirement. See id. Therefore, the scope

of SCFO counsel’s representation for the biennial review included the

consideration and hearing on the State’s motion to modify the civil commitment

order to require Brown to participate in the tiered treatment program. See id. Under

these particular facts, we conclude that Brown had a statutory right to counsel. See

id. § 841.005(a).

      The trial court may have been unaware that SCFO counsel had recently been

appointed for the ongoing biennial review, but it is undisputed that Brown had

appointed counsel on the day of the hearing and that counsel did not participate in

                                         6
the hearing that resulted in the amended order of civil commitment. Under these

circumstances, the trial court abused its discretion by denying Brown’s request to

be represented by counsel at the hearing. Brown lacks an adequate appellate

remedy because the interlocutory order is not immediately appealable. See In re

Commitment of Cortez, 405 S.W.3d 929, 931 (Tex. App.—Beaumont 2013, no

pet.).

         We are confident that the trial court will vacate its orders of October 21,

2015, and appoint counsel to represent Brown at the hearing on the State’s motion

to place Brown in the tiered treatment program. See Tex. Health & Safety Code

Ann. § 841.005. The writ shall issue only if the trial court fails to comply. All other

relief requested in the mandamus petition is denied.

         PETITION CONDITIONALLY GRANTED IN PART.




                                              ______________________________
                                                    STEVE McKEITHEN
                                                         Chief Justice

Submitted on May 16, 2016
Opinion Delivered September 1, 2016

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




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                              DISSENTING OPINION

      I join and agree with the majority’s conclusion and discussion rejecting

Brown’s complaint that the SVP statute as amended is unconstitutionally punitive,

and rejecting his complaint regarding retroactivity. See Majority Op. at 2-3.

However, I respectfully disagree with the majority and write this dissenting

opinion because I cannot agree with the majority’s conclusion that “[u]nder these

particular facts . . . Brown had a statutory right to counsel.”

      The general rule, as stated by the majority, is that “an indigent litigant does

not have a right to have counsel appointed to represent him in a civil case.” See

Gibson v. Tolbert, 102 S.W.3d 710, 712-13 (Tex. 2003). The Texas Legislature

specifically provided within the SVP statute that:

             § 841.005. Office of State Counsel for Offenders.

             (a) Except as provided by Subsection (b), the Office of State
      Counsel for Offenders shall represent an indigent person subject to a
      civil commitment proceeding under this chapter.

             (b) If for any reason the Office of State Counsel for Offenders
      is unable to represent an indigent person described by Subsection (a)
      at a civil commitment proceeding under this chapter, the court shall
      appoint other counsel to represent the indigent person.

Tex. Health & Safety Code Ann. § 841.005 (West 2010). A “civil commitment

proceeding” is defined by statute as “a trial or hearing conducted under Subchapter


                                           1
D, F, or G.” See id. § 841.002(3-a) (West Supp. 2015). The tiered program is part

of Subchapter E. See id. §§ 841.083, 841.0834, 841.0831 (West Supp. 2015).

      The facts in this case clearly indicate that the trial court held a separate

hearing on the State’s request to place Brown in the tiered program. As noted by

the majority, the parties treated the placement into the tiered program as a separate

matter from the biennial review. Moreover, the trial court also treated the

proceedings separately and held separate hearings as to each matter. The SCFO

attorney represented Brown at the biennial review hearing. In my opinion, the mere

fact that SCFO was appointed by Order dated May 21, 2015, to represent Brown

for the “biennial review,” does not lead to the conclusion that Brown had a

“statutory right to counsel” at the tiered treatment hearing.

      As per the SVP statute, SCFO was appointed to represent Brown at the

biennial review hearing. There is no language within the SVP statute that required

the trial court to appoint SCFO or any other attorney to represent Brown at the

tiered treatment hearing. The Legislature expressly did not include Subchapter E

within the definition of a “civil commitment proceeding[.]” Therefore, the trial

court did not abuse its discretion by denying Brown’s request to be represented by

court-appointed counsel at the tiered treatment hearing. The petition for mandamus

should be in all respects denied.

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_________________________
LEANNE JOHNSON
Justice




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