                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-12-00406-CV
                          ____________________


                 IN RE COMMITMENT OF DARYL HOLT

_______________________________________________________         ______________

                   On Appeal from the 435th District Court
                        Montgomery County, Texas
                      Trial Cause No. 05-10-08910 CV
________________________________________________________         _____________

                                   OPINION

      Daryl Holt filed a notice of appeal from an order modifying one of the

requirements of his civil commitment order. As one of the forty-six persons

affected by similar orders signed by the trial court on July 26, 2012, Holt

complains that the trial court violated his right to due process. We conclude the

order is not appealable and that mandamus relief is not warranted. Accordingly,

we dismiss the appeal.

      In 2006, the trial court committed Daryl Holt for outpatient treatment and

supervision pursuant to Chapter 841 of the Texas Health and Safety Code. See In

re Commitment of Holt, No. 09-06-465 CV, 2007 WL 3101935, at *1 (Tex. App.—
                                       1
Beaumont Oct. 25, 2007, no pet.) (mem. op.); see also Tex. Health & Safety Code

Ann. §§ 841.001–.151 (West 2010 & Supp. 2012) (SVP statute). When Holt was

civilly committed, section 841.082(a)(1) stated that a civil commitment order must

require the person to reside in a Texas residential facility under contract with the

Council on Sex Offender Treatment (CSOT) or at another location or facility

approved by CSOT. See Act of May 23, 2005, 79th Leg., R.S., ch. 849, § 3, sec.

841.082(a)(1), 2005 Tex. Gen. Laws 2890, 2891 (amended 2007, 2011) (current

version at Tex. Health & Safety Code Ann. § 841.082(a)(1) (West Supp. 2012)).1

The 2006 order required that Holt reside in Harris County, Texas, and that he

reside in a halfway house unless otherwise approved by CSOT. After an

unopposed request by CSOT in 2010, the trial court modified Holt’s commitment

requirements to conform to section 841.082(a)(1) and require Holt to reside in a

facility under contract with CSOT. As of July 2012, Holt was housed in the Neal

Unit of the Texas Department of Criminal Justice, with a projected release date of

September 2, 2015.2



      1
       The 2005 amendments to the SVP statute apply to Holt, who was serving a
sentence in the Texas Department of Criminal Justice on September 1, 2005. See
Act of May 23, 2005, 79th Leg., R.S., ch. 849, § 9, 2005 Tex. Gen. Laws 2890,
2893.
      2
        The duties imposed by the SVP statute are suspended for the duration of
Holt’s confinement. See Tex. Health & Safety Code Ann. § 841.150(a).
                                         2
      In 2011, the Legislature created the Office of Violent Sex Offender

Management (OVSOM) and transferred the duties for providing appropriate and

necessary treatment and supervision under the SVP statute from CSOT to the new

agency. See Act of May 23, 2011, 82nd Leg., R.S., ch. 1201, §§ 1-21, 2011 Tex.

Gen. Laws 3197-3204. OVSOM filed written requests for a modification of the

order with regard to many of the forty-six persons affected by orders signed on

July 26, 2012, but no written request appears in the clerk’s record in Holt’s case.

                                  JURISDICTION

      The notice of appeal filed in this case failed to invoke our appellate

jurisdiction because the trial court’s order of July 26, 2012, modified a requirement

of Holt’s SVP treatment without finally disposing of the SVP commitment case

and no interlocutory appeal has been provided for by statute.             See In re

Commitment of Cortez, No. 09-12-00385-CV, 2013 WL 3270613, at *2 (Tex.

App.—Beaumont June 27, 2013, no pet. h.). The trial court retains jurisdiction

while the civil commitment order remains in effect. See In re Commitment of

Richards, 395 S.W.3d 905, 907 (Tex. App.—Beaumont 2013, pet. denied). No

language in the order suggests that the trial court considered the order to be final.

See, e.g., In re Commitment of Davis, 291 S.W.3d 124, 128 (Tex. App.—

Beaumont 2009, pet. denied) (noting trial court included unmistakable language of

finality). We conclude that the order at issue is not appealable.
                                          3
                                    MANDAMUS

      In response to an inquiry from this Court, Holt asks that we alternatively

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

Cortez, we address the presented issues as a mandamus petition. Cortez, 2013 WL

3270613, at *2; see also CMH Homes v. Perez, 340 S.W.3d 444, 452-53 (Tex.

2011) (holding an interlocutory trial court order may be reviewed by mandamus

under appropriate circumstances).

                               Objections by Counsel

      In his first issue, Holt complains that the trial court did not permit his

counsel to make an oral objection while he was present in the courtroom. In

Cortez, we addressed an identical complaint. See Cortez, 2013 WL 3270613, at *4.

Although we agreed that the trial court should not have prohibited counsel from

making an objection when counsel was neither disruptive nor contemptuous of the

court proceedings, we concluded Cortez did not identify an issue that the trial court

prevented this Court from addressing. Id. The same is the case here. Holt filed a

post-hearing motion in which he complained that the trial court had not given him

a full evidentiary hearing, and we are addressing the arguments presented in Holt’s

brief. The record does not need further development for Holt to present his

challenge to the appellate court. See generally Tex. R. App. P. 44.4.


                                         4
                       Lack of Written Motion and Hearing

      In his second issue, Holt complains that the trial court failed to give proper

notice prior to modifying the terms of his commitment. He argues he was entitled

to a signed copy of the State’s pleading. Holt joined motions filed on behalf of the

forty-six men and in a submission filed on July 10, 2012, Holt acknowledged that

he was going to be transported to the courtroom on July 26, 2012, for the hearing

on OVSOM’s requested modification. The trial court’s order of July 26, 2012,

merely substituted the former entity, CSOT, for the newly-created entity, OVSOM,

which assumed CSOT’s duties relating to the SVP program in a coordinated

transfer effective September 1, 2011. See Act of May 23, 2011, 82nd Leg., R.S.,

ch. 1201, § 19(a)-(c), 2011 Tex. Sess. Law Serv. 3203. From the record, it is

evident that Holt was aware that the trial court was going to make a technical

change in the residency requirement to reflect that upon Holt’s release, OVSOM

would provide his housing.

      Likewise, we do not find it necessary to command the trial court to vacate its

order of July 26, 2012 and issue a new order after conducting an evidentiary

hearing. The order merely conformed Holt’s commitment requirements to reflect

the change in agency made by the Legislature the previous year. See generally Tex.

Gov’t Code Ann. §§ 420A.001-.011 (West 2012); Tex. Health & Safety Code Ann.

§§ 841.002, 841.007, 841.021-.023, 841.082-.084.
                                         5
                                Outpatient Treatment

      In his third issue, Holt contends the modification procedure curtails true

outpatient treatment because it requires civilly committed men to live in locked

facilities where conditions are punitive, in violation of due process. We rejected

the same argument in Cortez, based upon a disclaimer filed in the trial court that

was jointly filed by Cortez, Holt, and the other committed persons. See Cortez,

2013 WL 3270613, at *4. Holt did not challenge the commitment order on this

ground in his appeal. See Holt, 2007 WL 3101935. The trial court’s order of July

26, 2012 did not alter Holt’s status to a more restrictive custody.

                                   CONCLUSION

      We lack appellate jurisdiction to review the order at issue here, and Holt’s

complaints do not warrant mandamus relief. Accordingly, we dismiss the appeal.

      APPEAL DISMISSED.




                                               ________________________________
                                                         CHARLES KREGER
                                                             Justice


Submitted on June 18, 2013
Opinion Delivered July 11, 2013

Before Gaultney, Kreger, and Horton, JJ.

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