Wednesday, March 04, 2015

Analyzing legislation to reform Texas sex-offender civil commitment program.

When Senate Criminal Justice Committee Chairman John Whitmire filed SB 746 revamping Texas' civil commitment program aimed at sexually violent predators, Grits tried in vain to grok the ins and outs of all the changes and their import from the text and quickly found it made my head hurt. So I emailed Nancy Bunin - an attorney in Houston who works on these cases and who has been involved with advocating for reforming the program - asking her to explain what the bill did, how it addressed the problems reported extensively in the Houston Chronicle and elsewhere, and what remains to be done. She graciously replied today with a detailed and candid response. I'm immensely grateful for her taking the time. Find her analysis below the jump.

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.[1]

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[2]. According to the agency’s own records[3], 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.


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.


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.


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.


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?


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.


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:

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.
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.

[1] Though the statute provides for the civil commitment of persons. Only men have been subject to prosecution under this statute.

[2] 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

[3] Biennial Report regarding the Office of Violent Sex Offender Management, December 1, 2012 – November 30, 2014, page 18.


Anonymous said...

Sex offenders are all different. Some have only a few victims and some have 50 or more over their career. Reform is needed.

Tod said...

Many on the registry have no victims.

Anonymous said...

One of Ms. Bunin's points needs clarification.

She says, "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."

While the proposed changes do indeed strike the requirement that a person must be convicted of more than one sexually violent offense, it's wrong that the statute still requires the person to be a repeat sexually violent offender.

This is because the definition of repeat sexually violent offender is merely a list of what offenses qualify a person for civil commitment.

That is to say: the definition of repeat sexually violent offender, in this revision, is any *single* offense.

The subsequent use of "repeat sexually violent offender" throughout the statute is an oxymoron (and meaningless) based on the statute's revised definition of repeat sexually violent offender.

Ironically, some of these single offenses also include offenses that, under the original language, could be used as the "second or more" offense to qualify the person as a repeat offender. Standing alone, as they do now, as single offenses which would qualify an individual as a repeat sexually violent offender, they make no sense whatsoever.

The Comedian said...

The majority of these men also have problems with alcohol and/or drugs. Many of them committed their offenses while under the influence. They are regularly tested for drugs and alcohol use while in treatment. While alcohol or drug intoxication does not excuse committing sex offenses, these problems need to be addressed in treatment.

Housing these men in facilities where alcohol and drug use is rampant is an open invitation to the sabotage of treatment.

Always keep in mind too that for every sex offender who is civilly committed, several others who are equally "bad" or even worse, walk out of prison on parole or having completed their sentence.

Gritsforbreakfast said...

Tod, that observation doesn't apply to this cohort. Focus.

Anonymous said...

Scary I the only person in Texas having goose stepping nightmares when I read what our legislature is capable of...and getting by with???

George said...

Yes, people who commit sex offenses ARE all different. That's the reason why the blanket approach in how the state deals with most people who are convicted and subsequently required to register is unjust as a whole.

When dealing with convicted sex offenders who meet the requirements of civil commitment, the state has no clear strategy on how to deal with these individuals. The fact of the matter is there are risk assessment tools, modern and up to date tools,( see how many times the Static 99 risk assessment tool has been revised and criticized for it's lack of efficacy ), that can better determine whether someone should actually be placed in the civil commitment program at all. To simply commit an individual because he/she has more than one sex offense if
s not necessarily an accurate determination that he/she is an ongoing threat -- perhaps likely but not conclusively.

The other thing to consider here is that regardless of what these people have done, if they are indeed US citizens then they have rights under the constitution. Rights that seem to be trampled upon and squashed because they have sexually offended. This civil commitment program should be targeting the absolute worse sexually violent offenders and there should be clear evidence that shows these individuals as such.

@ Anonymous 6:40, yes we should all be very afraid by how easily anyone's freedom and rights can be denied. Our elected officials should be leaders who lead by example not fearmongerers who get there asses caught in jam after jam because of their zealous drive to show their constituents how "tough" they are when dealing with sex offenders.

People said...

What is wrong with Justice?People get a sentence and Parole even released these men after 17 years of time,how can they be held in this program which nobody has been released for 15 years? Does Legislation not see this problem? It will cost tax payers over 7 million$$ to continue this Messed up program. When is Whitmire going to stop the mess? Unbelievable the Governor even supports the mess after all its problems on media.....Voters make sure to change these people just like Susan Reid. Its time for changes..these people have been in their seats too long.....Texas needs changes!

People said...

Texas its time for changes on our Electives, Civil commitment is a big mess and at the House for the move of the Bill even the governor was in support of this amendment. I cant believe 150 House members and they dont see problems with this program? Its been going on for 15 years already. We got to make changes like Susan Reid...its time to remove Whitmire and Governor whom dont see this as a problem.Nobody has been released...,It is Unconstitutional!!!!

Anonymous said...

I do understand where you are coming from. I have worked with these men. Alot of them committed their crime in the 70s and 80s. And are just getting out. And they are told that the hearing is nothing. And it is a very slim chance you will be civil committed. But that is false. Alot are not repeat offenders. They caught both crimes years ago. Did their 20 30 yrs and are places in this program with no chance of ever going home to their families.

Anonymous said...

They have been placed In a gard place recently. They have until August to find a place for them all to go. The rules of the program are so messed up. There is no way out. Because you can be a level 3. And if someone comes in after having a bad day they can drop your level with no excuse. There are men who have finished the program and they are still stuck in the program. Because they are not releasing. I feel it is wrong. If a person completes the program and is allowed to go out and work unsupervised. Why can't that man go home to his family. Hell, all of those men have ankle monitors. Those monitors tell you exactly where those men are at all times. Down to what the building looks like in front of them. So, why can't they send them home with those monitors. Let them go home to their families. I don't see the point of a program to help you. If it is just like being locked up. Just not in uniform and you can leave out at times if you level up. They need to do away with this program all together. Or fix it where these men can eventually go home.

Maggie Salazar said...

Thank you for your honest and excellent reporting. All these men are being sent to Littlefield to be housed in the Bill Clinton Detention Facility as I write. Many of them scared, as are their families. This move is a great hardship on the families who have to travel over six hours to visit. Please keep reporting on this facility in Littlefield. We can only hope and pray that Texas is going to play fair and give these men a real chance on going home. Some of these men were working and doing great, then uprooted from their jobs and sent to Littlefield. It doesn't make sense to isolate those capable of living peacefully in our society, with no other daily contact but other convicted sex offenders.