     Case: 13-20431   Document: 00512837105   Page: 1   Date Filed: 11/14/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                    Fifth Circuit

                                                                   FILED
                              No. 13-20431                    November 14, 2014
                            Summary Calendar                     Lyle W. Cayce
                                                                      Clerk

CHARLES WILSON; JAMES ATKINS; DANNY ELLIS; CHARLES
RUSHING; JOSE CEVERA; JUAN FUENTES; JOHN WALSH; JOSEPH
COUNCIL; DARREN GROOM; ABEL ADAME; LAWRENCE SIMON;
FERNANDO THOMPSON; MICHAEL SMITH; JAMES JACKSON; GARY
VINES; ALFRED VILLEGAS; DONNIE BUNN; LARRY LANZONE;
RONALD MITCHELL; RAYMOND SCOTT,

                                        Plaintiffs-Appellants

v.

OFFICE OF VIOLENT SEX OFFENDER MANAGEMENT; EXECUTIVE
DIRECTOR ALLISON TAYLOR, in her Official and Individual capacities;
LISA WORRY, Program Administrator, in her Official and Individual
Capacities; DEBORAH MORGAN, in her Official and Individual Capacities;
PROGRAM SPECIALIST ALICE JAUREGUI, in her Official and Individual
Capacities; PONDRAY MATHIS, in his Official and Individual Capacities;
BILLY BARNES, in his Official and Individual Capacities; PROGRAM
SPECIALIST CHRISTIAN SMITH, in his Official and Individual Capacities;
PROGRAM SPECIALIST BARBARA MACNAIR, in her Official and
Individual Capacities; PROGRAM SPECIALIST HOLLY WHITE, in her
Official and Individual Capacities; MICHAEL WODKINS, Contract Treatment
Provider, in his Official and Individual Capacity; DEBRA REED, Contract
Treatment Provider, in her Official and Individual Capacity; DR. NICHOLAS
EDD, Contract Treatment Provider, in his Official and Individual Capacity;
SUSAN POCASANGRE, Contract Treatment Provider, in her Official and
Individual Capacity; ERIC PIERSON, Southeast Texas Transitional Center,
Facility Director, in his Official and Individual Capacity; SOUTHEAST
TEXAS TRANSITIONAL CENTER,

                                        Defendants-Appellees
     Case: 13-20431      Document: 00512837105         Page: 2    Date Filed: 11/14/2014


                                      No. 13-20431


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CV-1392


Before DAVIS, CLEMENT and COSTA, Circuit Judges.
PER CURIAM: *
       The appellants, who are civilly committed as sexually violent predators
(SVPs) under the Texas Health and Safety Code Chapter 841, appeal the
district court’s denial of their joint motion for a preliminary injunction
prohibiting their prosecution for violations of their civil commitment conditions
pursuant to Texas Health and Safety Code § 841.085 while they are required
to reside in residential treatment facilities.             They argue that there is
substantial likelihood of success on the merits because the application of
§ 841.085 to violations of their civil commitment conditions while they are
confined in residential treatment facilities is unconstitutionally punitive,
violates their substantive due process rights, and is contrary to Texas Health
and Safety Code Chapter 841 and to In re Commitment of Fisher, 164 S.W.3d
637, 646-56 (Tex. 2005). They argue that application of § 841.085 subjects
them to a substantial threat of irreparable harm because they may be
prosecuted and may receive enhanced sentences of 25 years to life
imprisonment due to their prior felony convictions.
       The district court’s denial of a motion for a preliminary injunction is an
immediately appealable interlocutory order, and this court has jurisdiction
over such an appeal. See Byrum v. Landreth, 566 F.3d 442, 444 (5th Cir. 2009);



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.



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                                  No. 13-20431

28 U.S.C. § 1292(a)(1). A movant is entitled to the “extraordinary remedy” of
a preliminary injunction only if he establishes
      (1) a substantial likelihood of success on the merits, (2) a
      substantial threat of irreparable injury if the injunction is not
      issued, (3) that the threatened injury if the injunction is denied
      outweighs any harm that will result if the injunction is granted,
      and (4) that the grant of an injunction will not disserve the public
      interest.
Byrum, 566 F.3d at 445 (citation omitted). “[T]he ultimate decision whether to
grant or deny a preliminary injunction is reviewed only for abuse of discretion.”
Id. (internal quotation marks and citation omitted). However, “a decision
grounded in erroneous legal principles is reviewed de novo,” as is a preliminary
injunction that “turns on a mixed question of law and fact.” Id.
      The district court did not abuse its discretion in denying the appellants’
motion because they have not shown that they met the above requirements for
obtaining a preliminary injunction. See Byrum, 566 F.3d at 445. They have
not shown that they have a substantial likelihood of success on the merits
because they have cited no legal authority that directly supports their
argument that they may not be prosecuted for violations of their civil
commitment conditions under § 841.085 while they are required to reside in
residential treatment facilities. Their reliance on Fisher is misplaced as it did
not address the issue whether they may be criminally prosecuted for violations
of their civil commitment conditions. Fisher was also decided prior to the 2005
amendment which added the requirement that SVPs reside in residential
treatment facilities. See Fisher, 164 S.W.3d at 647; see “In the Shadowlands:
Fisher and the Outpatient Civil Commitment of Sexually Violent Predators in
Texas,” 13 TEX. WESLEYAN. L. REV. 175, 210 (Fall 2006) (citing Act 2005, 79th
Leg., Ch. 849, Sec. 7(1), effective September 1, 2005). The appellants have also
failed to show a substantial threat of irreparable injury if the injunction is not


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                                No. 13-20431

issued. See Byrum, 566 F.3d at 445. The threatened harm is speculative as
they will face prosecution under § 841.085 only if they violate their civil
commitment conditions. See United States v. Emerson, 270 F.3d 203, 261-62
(5th Cir. 2001). Because the appellants must show that they have satisfied all
four requirements to obtain a preliminary injunction, we will not consider
whether they have satisfied the other requirements. See Byrum, 566 F.3d at
445; Enterprise Int’l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762
F.2d 464, 472 (5th Cir. 1985). The appellants’ motion to expedite the appeal is
denied.
      AFFIRMED; MOTION DENIED.




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