
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-04-060 CV

____________________


IN RE COMMITMENT OF TRAVIS JEROME JOHNSON




On Appeal from the 284th District Court
Montgomery County, Texas

Trial Cause No. 03-05-03489-CV




OPINION
 The State of Texas filed a petition to commit Travis Jerome Johnson as a sexually
violent predator.  See Tex. Health & Safety Code Ann. §§ 841.001-.147 (Vernon 2003
& Supp. 2004-2005).  A jury found Johnson suffers from a behavioral abnormality making
him likely to engage in a predatory act of sexual violence.  The appellant does not
challenge the sufficiency of the evidence to support the jury's findings.  The trial court
entered a final judgment and order of civil commitment.  Johnson presents three issues in
his appeal.  We find no error and affirm the judgment.
	The appellant's first issue contends the judgment is void because the venue
provision for commitment proceeding filed under Chapter 841, Health and Safety Code,
violates an express prohibition in the state constitution.  Section 841.041 places venue in
Montgomery County for all petitions alleging sexually violent predator status under
Chapter 841.  Tex. Health & Safety Code Ann. § 841.041(a) (Vernon Supp. 2004-2005).  Article 3, section 56, of the Texas Constitution proclaims: "The Legislature shall
not, except as otherwise provided in the Constitution, pass any local or special law,
authorizing . . . changing the venue in civil or criminal cases. . . ."  Tex. Const. art. III,
§ 56 (a).  The appellant argues the general law for venue in civil cases can be made
applicable to cases of this type, so the legislature could not pass a special or local law
placing venue exclusively in Montgomery County.  Tex. Const. art. III, § 56 (b). 
	First, we must address the State's contention that the appellant waived the issue. 
At trial, the appellant made no objection to venue, and the issue is raised for the first time
on appeal.  A complaint regarding the constitutionality of a statute is subject to the
ordinary rules of procedural default.  See Tien Tao Ass'n, Inc. v. Kingsbridge Park
Community Ass'n, Inc., 953 S.W.2d 525, 532 (Tex. App.--Houston [1st Dist.] 1997, no
pet.).  "[T]he constitutionality of a statute should be considered only when the question is
properly raised and such determination is necessary and appropriate to a decision in the
case."  In re Doe 2, 19 S.W.3d 278, 284 (Tex. 2000).  "The presumption is that a statute
enacted by our Legislature is constitutional, and attacks on that presumption should
generally be raised as an affirmative defense to enforcement of the statute."  Id. (footnote
omitted); see also Tivoli Corp. v. Jewelers Mut. Ins. Co., 932 S.W.2d 704, 708 (Tex.
App.--San Antonio 1996, writ denied)(state constitution-based challenge to visiting judge
assignment section of Court Administration Act).  
	Johnson contends the argued illegality of the statute deprived the trial court of
jurisdiction to decide the case.  Jurisdiction is fundamental and can be raised at any time. 
Tullos v. Eaton Corp., 695 S.W.2d 568 (Tex. 1985).  The appellant provides no authority
holding that a court lacks subject matter jurisdiction over an action filed pursuant to an
unconstitutional local or special law.  Assuming for the sake of argument that the
legislative act placing venue of sexually violent predator commitments is void, the
appellant cites no precedent holding that no district court may have subject matter
jurisdiction over a proceeding of this type, nor does he refer the Court to a case holding
that improper venue is an issue of subject matter jurisdiction.  A venue provision is not a
substantive limitation on court power; it neither limits nor creates specific powers in a
specific court.  See Hartford Underwriters Ins. Co. v. Hafley, 96 S.W.3d 469, 473 (Tex.
App.--Austin 2002, no pet.)(judicial review of administrative decision).  Even if the place
for filing suit was incorrect because the venue provision of Section 841.041 is void, the
State nevertheless invoked the court's inherent power to exercise its judicial authority in
the case, and the appellant failed to make the timely, specific objection required to
preserve error for appellate review.  See Tex. R. App. P. 33.1.  Issue one is overruled.
	In his second issue, Johnson argues Section 841.082(d) of the Texas Health and
Safety Code is void for vagueness "in that it appears to mandate the trial judge to transfer
jurisdiction 'for purposes of appeal' to another district court." See Tex. Health & Safety
Code Ann. § 841.082(d) (Vernon Supp. 2004-2005) ("Immediately after the case becomes
final for purposes of appeal, the judge shall transfer jurisdiction of the case to a district
court, other than a family district court, having jurisdiction in the county in which the
person is residing, except that the judge retains jurisdiction of the case with respect to a
civil commitment proceeding conducted under Subchapters F and G.").  We considered
and rejected an identical argument in In re Commitment of Lowe, No. 09-03-475-CV, slip
op. at 2-10, 2004 WL 2827140, at * 1-5 (Tex. App.--Beaumont Dec. 9, 2004, no pet. h.). 
We reject Johnson's argument for the same reasons expressed in Lowe.  Issue two is
overruled.
	In his third issue, Johnson contends the commitment requirements of Health and
Safety Code Section 841.082, and the final judgment and commitment order entered in
accordance with the statute, violate due process because they are overly broad and vague. 
See Tex. Health & Safety Code Ann. § 841.082(a) (Vernon Supp. 2004-2005).  Most
of the arguments presented by Johnson on this issue were considered and rejected in In re
Commitment of Castillo, 144 S.W.3d 655, 656-57 (Tex. App.--Beaumont 2004, no pet.). 
As the appellant presents no argument for departing from that precedent, we shall address
only those arguments not presented in Castillo.  Johnson mentions the First Amendment,
but presents no argument that the First Amendment is implicated in this case. 
Furthermore, he did not raise any First Amendment-based grounds in the trial court.  On
appeal, Johnson complains of the commitment requirement that he notify the case manager
of a change in his health or employment status.  He did not object to this requirement in
the trial court.  Citing In re Commitment of Fisher, 123 S.W.3d 828, 846 (Tex. App.--Corpus Christi 2003, pet. granted), the appellant argues Section 841.082 does not refer to
the standard of appropriateness found in Section 592.032 of the Texas Health and Safety
Code.  See Tex. Health & Safety Code Ann. § 592.032 (Vernon 2003).  This
argument, too, is presented for the first time on appeal.  Likewise, the appellant did not
argue in the trial court, as he does on appeal, that the statute is vague because it fails to
require treatment within well-established professional standards for treatment of sex
offenders.  He complains that Section 841.002(3) employs an unconstitutionally vague
definition of "case manager" because the statute does not specify the required professional
training to be possessed by a case manager, but he did not challenge that statute before the
trial court.  Although Johnson challenges several provisions of a document titled "Civil
Commitment Requirements: Treatment and Supervision Contract.", the "contract" is not
included in the appellate record.  Because the errors asserted on appeal were not presented
to the trial court, or concern documents not included in the appellate record, the
appellant's new arguments have not been preserved for appellate review.  Castillo, 144
S.W.3d at 656; Tex. R. App. P. 33.1.  Issue three is overruled.  We affirm the judgment.
	AFFIRMED.


							_______________________________
								STEVE MCKEITHEN
								       Chief Justice
 

Submitted on November 18, 2004
Opinion Delivered December 22, 2004

Before McKeithen, C.J., Burgess and Gaultney, JJ.
