                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                            ____________________
                             NO. 09-12-00417-CV
                            ____________________


               IN RE COMMITMENT OF BRUCE MCCAIN

______________________________________________________                           _

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                    Trial Cause No. 03-10-07757 CV
______________________________________________________                          __

                         MEMORANDUM OPINION

      In April 2004, the trial court rendered a final judgment and an order civilly

committing Bruce McCain for outpatient treatment and supervision pursuant to the

sexually violent predator statute. See Tex. Health & Safety Code Ann. §§ 841.001-

.151 (West 2010 & Supp. 2012). The order required McCain to reside in Harris

County, Texas. On July 26, 2012, in response to a motion to modify filed by the

Office of Violent Sex Offender Management (“OVSOM”), the trial court modified

the judgment and civil commitment order to require that McCain reside in a Texas

residential facility under contract with OVSOM or at another location or facility

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approved by OVSOM. McCain is one of several persons affected by similar orders

signed by the trial court on July 26. McCain asserts four appellate issues

challenging the modification order. Because the order is not appealable and

mandamus relief is not warranted, we dismiss McCain’s appeal.

      The trial court’s July 26 order modified a requirement of McCain’s SVP

treatment without finally disposing of the commitment case and no interlocutory

appeal is statutorily authorized; thus, McCain’s notice of appeal fails to invoke our

appellate jurisdiction. See In re Commitment of Cortez, No. 09-12-00385-CV, ___

S.W.3d ___, 2013 Tex. App. LEXIS 7854, at **5-6 (Tex. App.—Beaumont June

27, 2013, no pet. h.) (not yet released for publication). McCain asks that we

alternatively consider his brief as a request for mandamus relief. For the reasons

stated in Cortez, we will address McCain’s issues as a mandamus petition. See id.

at **6-8.

      In issues one and two, McCain complains that his counsel was not allowed

to make objections during the modification proceedings, he was not allowed to

meet with his counsel, he was not allowed to testify or present evidence, the trial

court considered the motion to modify and objections on submission, and the State

should serve “an accurate, complete, and signed” pleading upon both the person

whose commitment order the State seeks to modify and the person’s counsel. In

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Cortez, we explained that the trial court may modify SVP commitment

requirements “‘at any time after notice to each affected party to the proceedings

and a hearing.’” Id. at *8 (quoting Tex. Health & Safety Code Ann. § 841.082(e)

(West Supp. 2012)). McCain received notice through counsel, appeared before the

trial court after filing written objections to OVSOM’s motion to modify, and

personally appeared in court when the trial court modified the civil commitment

order. See id. at **8-10. Moreover, because of the limited administrative purpose

of modification to conform to changes made by the Legislature, the opportunity to

be heard through written submission alone does not violate the SVP statute or due

process. Id. at *11. McCain has not shown what his unaddressed objections would

have been, or that a contemporaneous objection was necessary to preserve error.

See id. at *13.

      In issue three, McCain argues that the modification procedure forces civilly

committed persons to reside in locked residential facilities where conditions are

punitive, in violation of due process. Along with numerous other civilly committed

persons, McCain disavowed a constitutional challenge to the statute in the trial

court. See id. The trial court’s July 26 order did not alter McCain’s status to a more

restrictive custody. See id.




                                          3
      In issue four, McCain contends that he was civilly committed before section

841.082(a)(1)’s enactment date. Section 841.082(a)(1) of the SVP statute provides

that a civil commitment order must require the person to reside in a Texas

residential facility under contract with OVSOM or at another location or facility

approved by OVSOM. Tex. Health & Safety Code Ann. § 841.082(a)(1) (West

Supp. 2012). The provision’s effective date is September 1, 2005. See Act of May

23, 2005, 79th Leg., R.S., ch. 849, § 9, 2005 Tex. Gen. Laws 2890, 2893.

      As we explained in Cortez, “the 1999 SVP statute permitted the trial court to

order a committed person to reside in a particular place and allowed the

commitment requirements to be modified.” Cortez, 2013 Tex. App. LEXIS 7854,

at *16; see Act of May 30, 1999, 76th Leg., R.S., ch. 1188, § 4.01, sec. 841.082(a),

1999 Tex. Gen. Laws 4147 (amended 2003, 2005, 2007, 2011) (current version at

Tex. Health & Safety Code Ann. § 841.082(a) (West Supp. 2012)). The 2003

statute likewise gave the trial court the authority to modify commitment

requirements. Cortez, 2013 Tex. App. LEXIS 7854, at **15-16; see Act of May

30, 2003, 78th Leg., R.S., ch. 347, §§ 24, 32, sec. 841.082(b), 2003 Tex. Gen.

Laws 1505, 1517, 1519 (amended 2005, 2007, 2011) (current version at Tex.

Health & Safety Code Ann. § 841.082(e) (West Supp. 2012)). Thus, under the law

in effect for pre-existing orders, the trial court had the discretion to modify the

                                         4
residency requirement to accomplish what the 2005 amendment to the SVP statute

required. Cortez, 2013 Tex. App. LEXIS 7854, at *16; see Act of May 23, 2005,

79th Leg., R.S., ch. 849, § 3, sec. 841.082(a)(1), (e), 2005 Tex. Gen. Laws 2890,

2891 (amended 2007, 2011) (current version at Tex. Health & Safety Code Ann. §

841.082(a)(1) (West Supp. 2012)). The trial court could in its discretion order

McCain to live in an OVSOM-approved facility and did not abuse its discretion by

doing so. See Cortez, 2013 Tex. App. LEXIS 7854, at **16-17. Because we lack

appellate jurisdiction, and McCain’s complaints do not warrant mandamus relief,

we dismiss McCain’s appeal.

      APPEAL DISMISSED.



                                           ________________________________
                                                   STEVE McKEITHEN
                                                       Chief Justice


Submitted on July 10, 2013
Opinion Delivered August 15, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.




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