 
 




                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                                NO. 09-17-00496-CV
                            ____________________


              IN RE COMMITMENT OF ADOLPH MARTINEZ

________________________________________________________________________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 01-04-02245-CV
________________________________________________________________________

                           MEMORANDUM OPINION

      Adolph Martinez filed a notice of appeal from the denial of his plea to the

jurisdiction. We questioned our jurisdiction and the parties filed responses. We

dismiss the appeal for lack of jurisdiction.

                                     Background

      Martinez was civilly committed as a sexually violent predator in an order that

this Court affirmed on appeal in 2003. See In re Commitment of Martinez, 98 S.W.3d

373 (Tex. App.—Beaumont 2003, pet. denied). At the time of his commitment, all

sexually violent predator civil commitment proceedings in Texas originated in

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Montgomery County. Act of May 30, 1999, 76th Leg., R.S., ch. 1188, § 4.01, 1999

Tex. Gen. Laws 4122, 4146.1 As chapter 841 of the Texas Health and Safety Code

was originally enacted, section 841.082(c) provided that “[i]mmediately after the

person’s commitment, 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 defendant is residing.” Id. at 4148. The judgment committing Martinez states in

part that it was “ORDERED that this cause shall be forthwith transferred to an Ector

County district court other than a family district court.” There is no indication in the

mandamus record that the Montgomery County District Clerk transferred the case

to Ector County while the case was on appeal.

              In 2003, the Legislature amended section 841.082 to provide in subsection (d)

that “[i]mmediately 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.” Act of May 30, 2003, 78th Leg.,

R.S., ch. 347, § 24, 2003 Tex. Gen. Laws 1505, 1516. The enacting language for the


                                                            
              1
       The statute’s effective date was September 1, 1999. Act of May 30, 1999,
76th Leg., R.S., ch. 1188, § 4.01, 1999 Tex. Gen. Laws 4122, 4152.
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2003 amendments stated that “[t]he change in law made by this Act in amending

Chapter 841, Health and Safety Code, applies to civil commitment proceedings

initiated before, on, or after the effective date of this Act.” Id. § 32, 2003 Tex. Gen.

Laws at 1519. Proceedings under Subchapters F and G include biennial reviews and

unauthorized petitions for release. When this Court’s mandate affirming Martinez’s

civil commitment issued in 2004, section 841.082(d) provided that the Montgomery

County Court retained jurisdiction of biennial review proceedings. See id. In 2005,

the Legislature removed the provision for transferring a civil commitment case to

the county in which the person is residing. See Act of May 23, 2005, 79th Leg., R.S.,

ch. 849, § 3, 2005 Tex. Gen. Laws 2890, 2892.

      In amendments to Chapter 841 of the Texas Health and Safety Code enacted

in 2015, the Legislature amended a separate section, 841.041, to provide that “[i]f a

person is referred to the attorney representing the state under Section 841.023, the

attorney may file, in the court of conviction for the person’s most recent sexually

violent offense, a petition alleging that the person is a sexually violent predator and

stating facts sufficient to support the allegation.” Tex. Health & Safety Code Ann. §

841.041(a) (West 2017). The 2015 amendments to section 841.082 left subsection

(d) unchanged. Therefore, “[t]he committing court retains jurisdiction of the case

with respect to a proceeding conducted under this subchapter, other than a criminal

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

proceeding conducted under Subchapters F and G.” Id. § 841.082(d) (West Supp.

2017). The enacting language for the 2015 amendment stated, as follows:

             SECTION 40. (a) Except as provided by Subsection (a–1) of this
      section, the changes in law made by this Act to Chapter 841, Health and
      Safety Code, apply to a civil commitment proceeding under that chapter
      that is initiated on or after the effective date of this Act, regardless of
      when the applicable petition for civil commitment was filed.

              (a–1) The jurisdiction of a district court, the representation of the
      state by the civil division of the special prosecution unit, and the
      representation of a respondent by the Office of State Counsel for
      Offenders or other court-appointed counsel in any civil commitment
      trial, any review of a petition for release, or any biennial review under
      Chapter 841, Health and Safety Code, that is pending on the effective
      date of this Act remain unaffected by this Act until the conclusion of
      that proceeding.

             (b) If a civil commitment requirement imposed under Chapter
      841, Health and Safety Code, before the effective date of this Act
      differs from any of the civil commitment requirements listed in Section
      841.082, Health and Safety Code, as amended by this Act, the
      applicable court with jurisdiction over the committed person shall, after
      notice and hearing, modify the requirement imposed as applicable to
      conform to that section.

Act of May 21, 2015, 84th Leg., R.S., ch. 845, § 40, 2015 Tex. Sess. Law Serv.

2700, 2711.

      Martinez filed a “Petition for Biennial Review” in the District Court of Ector

County, Texas. On August 14, 2017, the Ector County District Court signed an order

transferring the case to Montgomery County. On September 1, 2017, Martinez filed
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a plea to the jurisdiction in which he contended that the Montgomery County court

lost jurisdiction of his civil commitment on February 13, 2002, the date the trial court

signed the judgment. The trial court denied the plea to the jurisdiction, and Martinez

filed a notice of appeal.

                               Arguments and Analysis

      Martinez concedes that the trial court’s order denying his plea to the

jurisdiction is an interlocutory order that is not subject to an interlocutory appeal. He

asks this Court to treat the appeal as a petition for a writ of mandamus, and allow

him to file a petition for a writ of mandamus in place of an appellant’s brief. The

State opposes this request.

      The statute that allows an accelerated appeal from an interlocutory order

applies to a plea to the jurisdiction by a governmental unit. See Tex. Civ. Prac. &

Rem. Code Ann. § 51.014(a)(8) (West Supp. 2017). The trial court’s order denies a

plea to the jurisdiction by an individual private citizen. We lack appellate

jurisdiction. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001)

(holding that “when there has not been a conventional trial on the merits, an order

or judgment is not final for purposes of appeal unless it actually disposes of every

pending claim and party or unless it clearly and unequivocally states that it finally

disposes of all claims and all parties.”).

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      An interlocutory order may be reviewed by mandamus under appropriate

circumstances. See CMH Homes v. Perez, 340 S.W.3d 444, 452–53 (Tex. 2011).

Addressing an attempted accelerated appeal as an original mandamus proceeding

may avoid unnecessarily wasting the parties’ time and further judicial resources by

requiring a separate document with a different title “where the party has expressly

requested mandamus treatment of its appeal in an uncertain legal environment.” Id.

at 453. This case presents no potential ground for having proceeded with an

accelerated appeal. Furthermore, no record has been filed and the merits of the issues

to be decided have not been briefed. Therefore, no efficient use of judicial resources

would be realized by shoe-horning Martinez’s attempted accelerated appeal into an

original mandamus proceeding. Accordingly, the request is denied. We dismiss the

appeal for lack of jurisdiction.

      APPEAL DISMISSED.

                                              ________________________________
                                                      STEVE McKEITHEN
                                                          Chief Justice

Submitted on February 7, 2018
Opinion Delivered February 8, 2018

Before McKeithen, C.J., Kreger and Horton, JJ. 




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