                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-18-00228-CV


                             BERTIS CUPIT, APPELLANT

                                            V.

      TEXAS CIVIL COMMITMENT OFFICE AND THE CITY OF LITTLEFIELD,
                             APPELLEES

                          On Appeal from the 154th District Court
                                  Lamb County, Texas
              Trial Court No. DCV 19-754-17, Honorable Felix Klein, Presiding

                                  November 16, 2018

                            MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PARKER, JJ.

      Bertis Cupit appeals from an order dismissing his suit against the Texas Civil

Commitment Office (Office), Correct Care Recovery Solutions d/b/a Texas Civil

Commitment Center (Center), and the City of Littlefield, Texas, for want of jurisdiction.

We affirm.

      The record indicates that a jury found Cupit “a sexually violent predator as defined

in Texas Health & Safety Code § 841.003.” He had been tried in the 435th Judicial District

Court, Montgomery County, Texas, and a judgment manifesting the jury’s finding was
entered by the judge of said district court on January 15, 2013. Per that judgment, the

trial court ordered that Cupit be “civilly committed as [a sexually violent predator] in

accordance with Texas Health & Safety Code § 841.081 for outpatient treatment and

supervision.” By separate order signed on the same day, the trial court also ordered that

Cupit “reside in supervised housing at a Texas residential facility under contract with the

[Texas Civil Commitment Office] or at another location or facility approved by the Office[.]”

The facility in which he currently is placed is the Center located in Lamb County, Texas.

       Cupit sued the Office, Center, and City, contending that they had breached a

contract with him. The purported contract was the January 15, 2013 judgment ordering

that he be committed for “outpatient treatment.” The relief he sought for the alleged

breach was his return “to his county of criminal conviction, Polk County, to resume

treatment there in ‘true outpatient’ form” and $5,000,000 in punitive damages.

       The Center filed a plea to the jurisdiction of the trial court apparently on behalf of

all the defendants. It contended that the 435th Judicial District Court in Montgomery

County had continuing jurisdiction over the suit since Cupit was questioning his

assignment to the Center in Lamb County. Thus, the 154th Judicial District Court in Lamb

County lacked subject matter jurisdiction to proceed, according to the Center. The trial

court agreed and dismissed the action without prejudice to Cupit initiating it in the 435th

Judicial District Court. Cupit believes that the trial court erred in doing so, especially when

he was denied prior notice of the court’s intent to dismiss. We disagree.

       Whether a trial court has subject-matter jurisdiction over a suit is a question of law.

Tex. Dept. Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Consequently,

we review a decision holding that it did or did not under the de novo standard of review.



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Id.; Lubbock-Crosby Cty. Cmty. Supervision & Corr. Dept. v. Lance, No. 07-14-00222-

CV, 2014 Tex. App. LEXIS 13736, at *7 (Tex. App.—Amarillo Dec. 22, 2014, no pet.)

(mem. op.).       Furthermore, in assessing whether such jurisdiction actually exists, we

consider the plaintiff’s pleadings and factual allegations therein and any evidence

pertinent to the question. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.

2000); Lubbock-Crosby Cty. Cmty. Supervision, 2014 Tex. App. LEXIS 13736, at *7. So

too must we accept as true those factual allegations. In re Nurses License of Nichols,

No. 07-17-00236-CV, 2018 Tex. App. LEXIS 4421, at *2 (Tex. App.—Amarillo June 18,

2018, no pet.) (mem. op.). Indeed, the plaintiff has the burden to allege facts which

affirmatively show the existence of subject-matter jurisdiction. Id.

        Next, § 841.082 of the Texas Health and Safety Code provides that the court that

civilly committed someone as a sexually violent predator “retains jurisdiction of the case

with respect to a proceeding conducted under . . . subchapter [E of the statute], other than

a criminal proceeding involving an offense under Section 841.085, or to a civil

commitment proceeding conducted under Subchapters F and G.”1 TEX. HEALTH & SAFETY

CODE ANN. § 841.082(d) (West Supp. 2018). Falling within this provision are requests by

the committed person for less restrictive housing and supervision.                           See Tex. Civ.

Commitment Office v. Hartshorn, 550 S.W.3d 319, 329–30 (Tex. App.—Austin 2018, no



        1  Subchapter E encompasses a trial conducted under Subchapter D of the statute resulting in a
determination that the person is a sexually violent predator. See TEX. HEALTH & SAFETY CODE ANN.
§ 841.081(a) (West 2017) (stating that “[i]f at a trial conducted under Subchapter D the judge or jury
determines that the person is a sexually violent predator, the judge shall commit the person for treatment
and supervision to be coordinated by the office”). Subchapters F and G concern reviewing the person’s
continued commitment, id. § 841.101(a) (stating that “[a] person committed under Section 841.081 shall
receive a biennial examination”), and a petition for release, respectively. Id. § 841.121(a) (stating that “[i]f
the office determines that the committed 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, the office shall authorize the
person to petition the court for release”).

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pet.); see also In re Commitment of Davis, 291 S.W.3d 124, 127 (Tex. App.—Beaumont

2009, pet. denied) (acknowledging that the trial court that originally committed the person

retains jurisdiction and the power to modify the commitment requirements at any time).

       Long ago, we were directed to look at the substance of a pleading, as opposed to

its label, to determine the nature of the pleading and relief sought. See State Bar of Tex.

v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); see also In re J.Z.P., 484 S.W.3d 924, 925

(Tex. 2016) (per curiam) (reiterating the rule). Following that directive here, we perused

Cupit’s live pleading. So too did we review the “supplemental brief” he filed shortly

thereafter. Through the latter, he confirms that he “is not contesting his conviction, but

he is contesting the impairment of the way his contract is being carried out.” Again, that

“contract” is the January 15, 2013 judgment both committing him and ordering that he

undergo “outpatient treatment.” Instead of being afforded “outpatient treatment,” he is

confined within the Center, according to the allegations in his live pleading. He wants to

be removed from the Center in Lamb County, returned to Polk County, and receive

outpatient treatment there. Such relief is comparable to asking for less restrictive housing

and supervision. Thus, the substance of his complaint falls within § 841.082(d) of the

Health and Safety Code and the continuing jurisdiction of the 435th Judicial District Court.

The latter court having continuing jurisdiction over the nature of Cupit’s dispute, the 154th

Judicial District Court had no jurisdiction to adjudicate it. See Hartshorn, 550 S.W.3d at

331 (concluding that because the committing court in Montgomery County did not lose

jurisdiction over Hartshorn’s cause, the Travis County district court lacked jurisdiction over

it, and the plea to its jurisdiction should have been granted). Thus, it did not err in granting

the Center’s plea to the jurisdiction and dismissing, without prejudice, the entire cause.



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       In reaching the foregoing conclusion, we do not ignore Cupit’s allegation that he

should have been granted notice of the trial court’s intent to dismiss. Yet, such notice

and an opportunity to respond is not necessarily required. Unlike a dismissal for want of

prosecution, see TEX. R. CIV. P. 165a(1) (requiring prior notice of the trial court’s intent to

dismiss for want of prosecution), notice requirements for a plea to the jurisdiction are left

to the trial court’s discretion. See Collard v. State, No. 05-11-01508-CV, 2012 Tex. App.

LEXIS 7287, at *2–3 (Tex. App.—Dallas Aug. 29, 2012, no pet.) (mem. op.). If the

plaintiff’s pleadings affirmatively negate subject-matter jurisdiction, it is irrelevant whether

the plaintiff was given notice before the trial court ruled. Id.; Mann v. Gabriel, No. 11-10-

00265-CV, 2012 Tex. App. LEXIS 5569, at *5–6 (Tex. App.—Eastland July 12, 2012, no

pet.) (per curiam) (mem. op.); Martinez v. State, No. 13-10-00076-CV, 2011 Tex. App.

LEXIS 1809, at *6–8 (Tex. App.—Corpus Christi Mar. 10, 2011, no pet.) (mem. op.). So,

unless the plaintiff shows that notice could have affected the decision, withholding notice

is not reversible error. See Collard, 2012 Tex. App. LEXIS 7287, at *3 (concluding that,

“absent some showing that notice could have affected the trial court’s ruling, th[e] point

presents nothing to review”).

       Below and before us, Cupit consistently likened his suit to one for a breach of

contract due to his commitment to the Center in Lamb County. He has consistently sought

his return to Polk County to undergo outpatient treatment. The factual allegations in his

pleadings and briefs show nothing more than effort to alter the circumstances of his

commitment by securing less restrictive housing and treatment. Nothing suggests that

the actual substance of his complaint would have changed if he had been afforded notice

of the trial court’s intent to dismiss. Indeed, he still contends, via his appellate brief, that



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he should be receiving outpatient rather than inpatient treatment per the January 15th

judgment; this is so despite the accompanying order from the same court directing that

he “reside in supervised housing at a Texas residential facility under contract with the

‘Office’ or at another location or facility approved by the Office.”

       Simply put, a multi-ton animal with large flapping ears, two tusks, and a long trunk

used to grasp items is an elephant even though one may call it an iguana. Cupit may call

his suit one for breached contract, but the factual allegations in his pleadings and

accompanying writings coupled with the relief he has consistently sought throughout the

proceeding affirmatively illustrate an attempt to secure relief within the continuing

jurisdiction of the 435th Judicial District Court. Affording a plaintiff prior notice of a trial

court’s intent to dismiss due to the clear absence of subject-matter jurisdiction may be a

laudable avenue to pursue, even though it may result in some delay in the ultimate

disposition of the suit. On the other hand, some may ask, “Why prolong the obvious?”

Sometimes, though, the sense of having been afforded a chance to speak may carry

sway. Nevertheless, Cupit’s pleadings, attachments thereto, and consistent argument

reveal that the 154th Judicial District Court lacked subject-matter jurisdiction over his

complaint. It fell within the continuing jurisdiction of another court. So, denying Cupit

prior notice of an intent to dismiss is not reversible error.

       We overrule appellant’s issues and affirm the trial court’s judgment.




                                                   Brian Quinn
                                                   Chief Justice




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