                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-13-00235-CV
                            ____________________


               IN RE COMMITMENT OF RICHARD GARCIA

_______________________________________________________             ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 12-10-10400 CV
________________________________________________________             _____________

                          MEMORANDUM OPINION

      The State filed a petition to commit Richard Garcia as a sexually violent

predator. See Tex. Health & Safety Code Ann. §§ 841.001-841.151 (West 2010 &

Supp. 2014) (the SVP statute). A jury found that Garcia suffers from a behavioral

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

See id. § 841.003(a) (West Supp. 2014). The trial court signed a final judgment and

order of civil commitment. On appeal, Garcia argues that the trial court erred in

denying his motion for directed verdict regarding what he calls an “untimely

filing” of the civil commitment suit and that his trial counsel’s failure to plead his

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limitations defense constituted ineffective assistance of counsel. 1 We overrule his

issues and affirm the trial court’s judgment and order of civil commitment.

                                 DIRECTED VERDICT

      In his first issue, Garcia argues the State filed the civil commitment suit

against him more than ninety days after the Texas Department of Criminal Justice

referred him to the State for commitment proceedings. See id. § 841.023 (West

Supp. 2014), § 841.041 (West 2010). Garcia argues that section 841.041 of the

Texas Health and Safety Code required the State to file the petition for

commitment against him not later than ninety days after the Department sent a

letter notifying the State that the Department believed that Garcia was suffering

from a behavioral abnormality. According to Garcia, section 841.041 operates as a

statute of limitation that commenced on the date the Department sent the State the

letter recommending that commitment proceedings be commenced. See id. §

841.041.

      Garcia raised an argument regarding limitations in his oral motion for

directed verdict which he made in the trial court after both parties rested and the

evidence was closed. Garcia stated in his motion for directed verdict that the State

filed its petition on October 2, 2012, and he argued that would be more than ninety
      1
       After he filed an amended appellate brief, Garcia filed a letter notifying this
Court that he was withdrawing his third appellate issue.
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days after the date the matter was referred by the Department to the State. A copy

of the Department’s letter was admitted solely for the purpose of the directed

verdict hearing, so it was not presented to the jury. The letter from the Department

is dated June 19, 2012, and the file stamp on the letter indicated the State’s Special

Prosecution Unit received the letter on July 6, 2012, and it filed the suit against

Garcia on October 2, 2012, which is within ninety days of the date that it received

the Department’s letter. The trial court denied Garcia’s motion.

      At the hearing and on appeal, the State argues the trial court properly denied

Garcia’s motion because he failed to plead his limitations defense in his answer,

and because the evidence shows that the State filed the case within the statutory

deadline.

      This Court recently held that:

             In light of the State’s dual interests in exercising its parens
      patriae and police powers, the purpose of the statute to protect the
      community and provide treatment for the SVP, and the Texas
      Supreme Court’s construction of a similar provision to mean the date
      upon which notice is received, the interpretation of section 841.041
      that best serves the intent of the SVP statute is that the State must file
      its petition alleging predator status within ninety days of its receipt of
      the referral letter.

In re Commitment of Williams, No. 09-14-00029-CV, 2014 Tex. App. LEXIS

10035, at **5-6 (Tex. App.—Beaumont Sept. 4, 2014, no pet. h.) (mem. op.). In

the present case, the State’s petition was filed within ninety days of its receipt of
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the referral letter; therefore, the suit was timely and the trial court did not err in

overruling the motion for directed verdict.

      Nevertheless, even assuming without deciding that the ninety day provision

is a statute of limitation provision 2 and the suit was untimely filed, Rule 94 of the

Texas Rules of Civil Procedure requires that a party raise a statutory limitations

defense by affirmatively setting out the defense in a pleading. Tex. R. Civ. P. 94

(identifying limitations as an affirmative defense); see also Unifund CCR Partners

v. Weaver, 262 S.W.3d 796, 798 (Tex. 2008) (stating that limitations is a defense

that “must be asserted in a pleading[]”). Garcia failed to raise a limitations defense

in his pleadings. Therefore, the trial court did not err in denying Garcia’s motion

for directed verdict. See In re Commitment of Asbell, No. 09-13-00153-CV, 2014

Tex. App. LEXIS 10746, **1-4 (Tex. App.—Beaumont Sept. 25, 2014, no pet. h.)

(mem. op.); In re Commitment of Eustace, No. 09-13-00177-CV, 2014 Tex. App.

LEXIS 725, **1-2 (Tex. App.—Beaumont Jan. 23, 2014, pet. denied) (mem. op.).

Garcia does not contend that the question of limitations was an issue that was tried

by consent and there is no evidence in the record before the jury on that issue. See




      2
        We express no opinion regarding Garcia’s theory that the Legislature
intended section 841.041(b)(1) of the Texas Health and Safety Code to operate as a
statute of limitations.
                                          4
In re Commitment of Eustace, 2014 Tex. App. LEXIS at **4-5. We overrule issue

one.

                   INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

       In his second issue, Garcia contends his counsel’s failure to plead his

limitations defense constituted ineffective assistance of counsel. “Although the

Texas Supreme Court has extended a right to effective assistance to civil cases

involving the termination of parental rights, it has not addressed whether a sexually

violent predator may obtain a remedy for ineffective assistance in a direct appeal.”

In re Commitment of Williams, No. 09-09-00539-CV, 2010 Tex. App. LEXIS

8671, at *3 (Tex. App.—Beaumont Oct. 28, 2010, pet. denied) (mem. op.).

       Assuming without deciding that the remedy for ineffective assistance in a

direct appeal is available to Garcia, under Strickland v. Washington, 466 U.S. 668,

687-89 (1984), the reviewing court indulges a strong presumption that trial

counsel’s conduct falls within the wide range of reasonable professional assistance,

and that the challenged action might be considered sound trial strategy. Applying

this presumption here, in light of the fact that no binding authority would support

Garcia’s contention that the ninety day filing language contained in section

841.041(b)(1) was intended to operate as a statute of limitations and our

application of this Court’s recent contrary opinion, we cannot say that counsel’s

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representation fell below an objective standard of reasonableness or that Garcia’s

allegation of ineffectiveness is firmly founded in the record. Strickland, 466 U.S. at

688-89; Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). Issue

two is overruled. We affirm the trial court’s judgment.

      AFFIRMED.

                                                    _________________________
                                                       LEANNE JOHNSON
                                                             Justice

Submitted on October 15, 2014
Opinion Delivered October 30, 2014

Before Kreger, Horton, and Johnson, JJ.




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