By Nancy Bunin:
Texas has a statute to civilly commit an arbitrary and select few of the persons convicted of more than one sexual violent offense. This commitment process is initiated after the person has completed discharged his prison sentence or has been released on parole.
The process is fundamentally unfair. No one who is tried for civil commitment is ever found not to qualify for commitment and no one has ever been released from civil commitment. According to the agency’s own records, more than one half of the men who have been civilly committed have been sent back to prison for violating rules that are created, enforced, and interpreted by the same agency in charge of “treating” the civilly commitment patients.
More than twenty other states have similar civil commitment laws. Texas was unique in that persons were ordered to participate in sex offender treatment as outpatients. Since 2004 those orders have been modified to require civilly committed men to live in state contracted halfway houses and jails in violation of the existing statute.
Texas is also unusual in that violations of the rules of civil commitment can be prosecuted as a third degree felony. Any violation of civil commitment rules made by the agency can result in a patient being charged with a felony. For example, patients are forbidden to communicate with any person without agency permission, and patients have been charged for communicating with their families. Many of the agency rules criminalize behavior that is legal and protected – in fact, many of the rules are more restrictive than those imposed upon prisoners.
Since every man in civil commitment has at least 2 felony convictions, this meant any rule violation could result in habitual felon status and a possible life sentence.
Most recently Gary Vines received a life sentence. He was six minutes late returning to the halfway house after waiting to pick up his heart medication. There are over 100 rules of civil commitment. It is impossible for a reasonable adult to follow all the rules simultaneously.
Sen. John Whitmire has introduced S.B. No. 746 to change the civil commitment law, Texas Health and Safety Code Chapter 841. The bill is a response to a program that is out of control in terms of costs and oversight, and which is unconstitutional. Here are the highlights of the proposed changes to the civil commitment law.
1. CHANGES THE NAME OF THE AGENCY THAT RUNS THE PROGRAM TO THE TEXAS CIVIL COMMITMENT OFFICE.
Currently the agency is called the Office of Violent Sex Offender Management, formerly Council on Sex Offender Treatment. This at least gives the appearance that the agency is organized to do something other simply send former sex offenders back to prison.
2. Strikes the requirement that the person must be convicted of more than one sexually violent offense, though the statute still requires the person be a repeat sexually violent offender.
3. There is a positive development in that the bill proposes rights of civilly committed persons and recognizes legal rights of the disabled.
4. Changes the law to target only persons that have discharged their prison sentence and stops the civil commitment of persons who have been released on parole.
The civil commitment of persons on parole is largely seen as a waste of resources since persons on parole can be required to participate in sex offender treatment, as a condition of parole and a court order is not necessary.
5. The multidisciplinary team [MDT] reviews records of prisoners to determine who will be targeted for civil commitment.
The bill specifies that the MDT will include a mental health professional from the Department of State Health Services; one victim services officer from TDCJ; one person from the sex offender rehabilitation program from TDCJ; a peace officer from Texas Department of Public Safety; two people from the Texas Civil Commitment Office; and a licensed sex offender treatment provider.
It will be an improvement in the law to require the addition of those with experience in mental health, rehabilitation as well as a treatment provider. It would have been a more complete improvement to additionally include a patient’s advocate.
6. END THE EXCLUSIVE JURISDICTION IN CIVIL COMMITMENT MATTERS IN THE 435TH DISTRICT COURT OF MONTGOMERY COUNTY
The most dramatic change in the law will be to move civil commitment trials away from the 435th District Court of Montgomery County and will spread the cases throughout the entire Second Judicial Administrative region. There have been numerous cases where the presiding judge of the 435th has been recused because of bias and because the presiding judge’s impartiality could reasonably be called into question.
However, these are exceptionally politically sensitive cases. Many subsequently assigned judges are equally sensitive to the subject matter and do not appear any less bias than the presiding judge of the 435th.
It would have been preferable to distribute the cases around the state. Persons facing civil commitment should face prosecution in the region where the offense occurred or where the person resided before incarceration. Instead the cases will be heard in the southeastern section of the state including Montgomery, Harris, and Galveston counties.
7. PROVIDES FOR AGREED ORDERS AND SUBSEQUENT TREATMENT
It is troubling that the bill proposes new language specifying requirements for an “agreed order.” In the past, defense attorneys entered into agreed orders for their client to enter civil commitment on the condition that they be allowed to reside in a particular locale. Subsequently, the agency refused to honor the agreements, forcing men to live wherever the agency placed them.
More embarrassing for the state was that two men were banished from the State of Texas in an agreed order. Without treatment or supervision, those men were subsequently convicted of other crimes. The bill proposes language requiring persons to submit to treatment and supervision in an agreed order.
8. ELIMINATES OUTPATIENT TREATMENT AND REQUIRES INSTITUTIONALIZATION.
The most alarming proposal is the elimination of outpatient treatment. All of the men who have been committed were ordered to “OUTPATIENT” treatment as required under the existing statute. The judge of the 435th and the agency incorrectly required civilly committed men to reside in facilities under contract with the agency, resulting in unlawful confinement. This bill simply legislates this continued unlawful confinement.
There is some speculation that the agency will open a single institution to house persons in civil commitment. The bill provides for a tiered program to provide for the transition from total confinement to less restrictive housing and eventual release from the civil commitment.
The problem is the current law provides for release from civil commitment and no one has been released yet. Confining all civilly committed persons in one facility will simply further isolate the program from scrutiny, isolate participants from their family and community, and make it harder than ever to transition out of commitment.
The tiered program is common in other states. Last year, the new executive director of the agency and other agency personnel traveled to Washington State to observe that state’s program. It appears that this is a move to make the Texas program more like that model. California has been able to move men out of civil commitment and release them from the program. Other states use the inpatient program to completely isolate sex offenders and never release patients. Minnesota houses over 600 men in civil commitment and no one has ever been released.
10. The bill proposes new language to coordinate psychiatric services, disability services and housing for persons with special needs with the Health and Human Services Commission. This language is so vague and overbroad that it is meaningless. However, it is a move in the right direction, given the agency has largely ignored the needs of the disabled in civil commitment.
11. One troubling new proposal is the cost of confinement and treatments will be paid by those civilly committed persons who are not indigent. It is unconstitutional to require individuals to pay for their own confinement. There is no standard for idigency. Is a social security check enough to deem someone not indigent?
12. ELIMINATES CRIMINAL PROSECUTION OF CIVILLY COMMITTED PERSONS FOR AGENCY RULE VIOLATIONS.
By far the most encouraging element of this new bill is the elimination of the criminal prosecution of civilly committed men for failing to comply with all written requirements of the agency. More than half of the men who have been civilly committed have been sent back to prison for minor agency rule violations.
This incarceration for minor rule violation brought the constitutional validity of the program into question The only way a civil commitment scheme can be upheld is if the purpose of the statute is therapeutic and not punitive.
With more than half of civilly committed men in prison for minor rule violations and no one successfully discharged from treatment, the constitutionality of the program was seriously in doubt. Eliminating the criminal sanction for rule violation will help to move the program into constitutional compliance.
13. Another pleasantly surprising proposal is language specifically allowing for the appeal to higher courts when the trial court denies hearings for release from commitment. The Court of Appeals historically denied committed persons the right to appeal the trial court’s decision to continue the commitment of a person without a hearing.
This meant that one judge had unilateral power to release a person or keep a person in civil commitment forever without any oversight from a higher authority.
14. It is disappointing that the bill continues to suspend treatment and review of persons that are confined in prison or jail after they are committed.
Currently if a person gets arrested and sent back to prison for violating a civil commitment rule, the agency stops providing sex offender treatment and does not perform a review of the person’s condition while they are in prison or jail. Time is wasted when those identified as most in need of treatment are unable to obtain it.
15. STILL NO TREATMENT EXPERTSE OR PATIENT ADVOCATE ON THE BOARD OF THE AGENCY.
A huge failing of the bill is the lack of treatment expertise and patient advocacy in the agency board composition. The bill specifies the composition of the five agency board members: one experienced in management of sex offenders; one experienced in the investigation or prosecution of sex offenders; one experienced in counseling or advocating for victims of sexual assault.
This is a huge disappointment. Advocates requested the board include patient advocates, experts in sex offender treatment, and experts in mental health treatment. Including a treatment professional is essential to provide a therapeutic rather than a law enforcement purpose for the program.
So while the proposed bill addresses some of the much needed revisions to the program, other important areas remain unaddressed, including:
1. Historical legislative underfunding of the program, resulting in too few treatment beds, and the return of “surplus” men to prison:Nancy Bunin is an associate at Habern, O’Neil & Associates. She has defended men in civil commitment trials, biennial reviews, appeals, and in criminal prosecutions of civil commitment rule violations. She is co-chair of the Texas Criminal Defense Lawyers Association, Committee on Corrections and Parole.
2. Failure to address the roles of State Counsel for Offenders, which currently defends all civil commitment cases out of their Conroe office. While the proposed bill expands the rights of appeal and right to file writs for the civilly committed men, there is no correlating provision to require SCFO to handle those appeals or writs, potentially leaving the men to try to do this legal work on their own.
3. The proposed revisions do not require that SCFO provide competent and qualified legal services to the men. Since these are not criminal cases, there is no constitutional right to counsel, nor is there an explicit constitutional right to competent counsel. The statutory right to counsel should include a right to competent representation and adequate resources to defend the clients.
4. The bill fails to address the poor quality and quantity of treatment. Since no one has been released from civil commitment it could lead one to the conclusion that the treatment that is provided is not very good. Certainly the quantity of treatment is insufficient. Patients meet in group therapy twice a week. Patients have individual therapy twice a month. California provides 4 to 6 hours of treatment a day and most patients are released from the program in 2 to 4 years.
 Though the statute provides for the civil commitment of persons. Only men have been subject to prosecution under this statute.
 Mike Ward and Anita Hassan, For sex offenders who complete their sentences, the only way out appears to be to die, Houston Chronicle, April 26, 2014
 Biennial Report regarding the Office of Violent Sex Offender Management, December 1, 2012 – November 30, 2014, page 18.