Opinion issued August 20, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-18-00164-CV
                            ———————————
       IN RE COMMITMENT OF CHRISTOPHER JOSEPH FARRO



                    On Appeal from the 185th District Court
                             Harris County, Texas
                      Trial Court Case No. 818810-0101Z


      DISSENT FROM DENIAL OF EN BANC RECONSIDERATION

      The court has denied Christopher Joseph Farro’s motion for en banc

reconsideration. I respectfully dissent from the court’s decision to deny the motion.

      The panel that heard this case affirmed the trial court’s order civilly

committing Farro as a sexually violent predator. See In re Commitment of Farro,

No. 01-18-00164-CV, 2018 WL 6696567, at *1 (Tex. App.—Houston [1st Dist.]
Dec. 20. 2018, no pet. h.) (mem. op.). In its opinion, the panel applied the two-prong

definition of “sexually violent predator” contained in section 841.003(a) of the

Health and Safety Code. Id. at *10. Under this definition, a person qualifies as a

“sexually violent predator” if he is “a repeat sexually violent offender” and he

“suffers from a behavioral abnormality” that makes him “likely to engage in a

predatory act of sexual violence.” See TEX. HEALTH & SAFETY CODE §§ 841.002(9),

841.003(a); see also id. at § 841.003(b) (defining “repeat sexually violent offender”);

id. at § 841.002(2), (4) (defining “behavioral abnormality” and “predatory act”).

      After the panel issued its decision, the Second Court decided In re

Commitment of Stoddard, No. 02-17-00364-CV, 2019 WL 2292981 (Tex. App.—

Fort Worth May 30, 2019, no pet. h.) (mem. op. on reh’g). In Stoddard, a divided

panel held that section 841.001’s plain language limited the category of persons who

suffer from a behavioral abnormality making them likely to engage in a predatory

act of sexual violence to “a small but extremely dangerous group of sexually violent

predators” who are “not amenable to traditional mental illness treatment modalities

and that makes the predators likely to engage in repeated predatory acts of sexual

violence.” TEX. HEALTH & SAFETY CODE § 841.001; see Stoddard, 2019 WL

2292981, at *11–12. The Second Court further noted that a civil commitment statute

like Chapter 841, which determines “a person’s liberty for a practically indefinite

length of time based on ‘soft’ science,” might not pass constitutional muster without


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section 841.001’s limitations. See Stoddard, 2019 WL 2292981, at *12 (citing

Kansas v. Hendricks, 521 U.S. 346, 357 (1997)).

      Farro has raised Stoddard in conjunction with his motion for en banc

reconsideration of the panel’s decision. In a letter to the court, he contends that

“Stoddard supports the claims made in his brief in this case that the evidence is

legally and/or factually insufficient to support the jury’s verdict.” The state has

responded in opposition, urging the court to reject Stoddard’s statutory analysis.

      A prior panel of our court rejected the interpretation of the civil commitment

statute that Stoddard adopted. See In re Commitment of Williams, 539 S.W.3d 429,

437–39 (Tex. App.—Houston [1st Dist.] 2017, no pet.). In Williams, the court held

that section 841.001 does not limit the definition of “sexually violent predator.” Id.

      Williams was incorrectly decided. The panel in the present case consequently

applied a definition of “sexually violent predator” that is broader than the one that

the civil commitment statute requires us to apply. Stoddard states the correct

definition of “sexually violent predator” and I therefore would grant Farro’s motion

for en banc reconsideration in order to overrule Williams and remand Farro’s case

back to the trial court for a new trial applying the correct definition of “sexually

violent predator,” one that incorporates the limitations imposed by section 841.001.

      A contrary interpretation of Chapter 841 reads section 841.001 out of the

statute, contrary to established principles of statutory interpretation, which require


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us to interpret statutes as a whole so that no part is made meaningless. See TIC

Energy & Chem. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016). Nor can section 841.001

be interpreted as having no bearing on the definition of “sexually violent predator”

merely because it consists of “Legislative Findings” rather than appearing in the

statute’s definitions section or in section 841.003(a). See TEX. GOV’T CODE

§ 311.024 (section headings do “not limit or expand the meaning of a statute”);

Fredericksburg Care Co. v. Perez, 461 S.W.3d 513, 522–25 (Tex. 2015) (looking to

legislative findings in interpreting statute’s purpose). Williams, however,

erroneously does so, treating section 841.001 as surplusage.

      Moreover, interpreting the civil commitment statute without reference to

section 841.001 “risks ripping Chapter 841 from its constitutional foundation” by

allowing commitment based solely on a person’s prior convictions for sex offenses.

Stoddard, 2019 WL 2292981, at *12. As the Second Court observed:

      Such a result would present a high risk of injustice by allowing a
      factfinder to give the State a second bite at the apple after a sex offender
      has already served his sentence to the extent required by law. And the
      bite is a tempting one, given that the nature of the underlying offense
      will necessarily include deplorable acts involving sexually predatory
      and assaultive behavior. But while perhaps an understandable
      sentiment, the notion that all sex offenders should be indefinitely
      confined is not compatible with our system of due process and justice.
      Permitting the State to extend a sex offender’s confinement indefinitely
      based upon not much more than the facts related to the underlying crime
      for which he was convicted allows a factfinder to succumb to the
      temptation to lock up sex offenders and throw away the key. It would
      allow juries to do in civil cases that which cannot be done in criminal
      cases—punish twice for the same conduct.
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Id.

      For these reasons, I respectfully dissent from the court’s denial of Farro’s

motion for en banc reconsideration.




                                            Gordon Goodman
                                            Justice

En banc court consists of Chief Justice Radack and Justices Keyes, Higley, Lloyd,

Kelly, Goodman, Landau, Hightower, and Countiss




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