                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________
                              NO. 09-12-00448-CV
                             ____________________


               IN RE COMMITMENT OF DONALD LARKIN

______________________________________________________                             _

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                    Trial Cause No. 02-10-06874 CV
_______________________________________________________                            _

                          MEMORANDUM OPINION

      In July 2004, after a jury trial, the trial court rendered a final judgment and

an order civilly committing Donald Larkin 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 Larkin to

reside in Tarrant County, Texas. In 2010, the trial court modified the order to

require that Larkin “reside in a Texas residential facility under contract with the

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

approved by the Council.” On July 26, 2012, in response to a motion to modify

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filed by the Office of Violent Sex Offender Management (OVSOM), the trial court

modified the judgment and civil commitment order to require that Larkin “shall

reside in a Texas residential facility under contract with the Office of Violent Sex

Offender Management (OVSOM) or at another location or facility approved by the

OVSOM.” 1 Larkin is one of many persons affected by modification orders signed

by the trial court on July 26. Larkin asserts four appellate issues challenging the

modification order. Because the order is not appealable and mandamus relief is not

warranted, we dismiss Larkin’s appeal.

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

treatment without finally disposing of the commitment case and no interlocutory

appeal is statutorily authorized; thus, Larkin’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). However, Larkin asks that

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



      1
       In 2011, operation of the SVP treatment program transferred from the
Council on Sex Offender Treatment (CSOT) to OVSOM. See Act of May 30,
2003, 78th Leg., R.S., ch. 347, § 16, 2003 Tex. Gen. Laws 1505, 1514, amended
by Act of May 23, 2011, 82nd Leg., R.S., ch. 1201, § 3, 2011 Tex. Sess. Law Serv.
3197, 3199 (current version at Tex. Health & Safety Code Ann. § 841.002(4)
(West Supp. 2012)).
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reasons stated in Cortez, we will address Larkin’s issues as a mandamus petition.

See id. at **6-8.

      In issues one and two, Larkin challenges the trial court’s refusal to allow

counsel to make objections during the modification proceedings, consideration of

the motion to modify and objections on submission, and refusal to allow Larkin to

communicate with his counsel or present evidence during the proceedings. Larkin

further contends that the State “should be required to serve an accurate, complete,

and signed copy of a pleading upon the individual whose commitment order the

State intends to modify and his attorney.”

      As we have previously explained, 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)). Larkin 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. Larkin has not shown what his

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unaddressed objections would have been, or that a contemporaneous objection was

necessary to preserve error. See id. at *13.

      In issue three, Larkin 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, Larkin disavowed a constitutional challenge to the statute in the trial

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

restrictive custody. See id.

      In issue four, Larkin 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),

                                          4
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 gave the trial court the authority to modify commitment requirements and

applied to persons committed before the effective date of the amendment. 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 residency requirement to

accomplish what the Legislature required under the 2005 amendment to the SVP

statute. 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), (e) (West Supp. 2012)). The trial court could in its discretion order

Larkin 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 Larkin’s complaints do not warrant mandamus relief, we

dismiss Larkin’s appeal.




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      APPEAL DISMISSED.




                                           ________________________________
                                                   STEVE McKEITHEN
                                                       Chief Justice


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




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