in Re Commitment Christopher Joseph Farro ( 2019 )

Opinion issued August 20, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00164-CV
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IN RE COMMITMENT OF CHRISTOPHER JOSEPH FARRO
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case No. 818810-0101Z
DISSENT FROM DENIAL OF EN BANC RECONSIDERATION
The court has denied Christopher Joseph Farro’s motion for en banc
reconsideration. I respectfully dissent from the court’s decision to deny the motion.
The panel that heard this case affirmed the trial court’s order civilly
committing Farro as a sexually violent predator. See In re Commitment of Farro,
No. 01-18-00164-CV, 2018 WL 6696567, at *1 (Tex. App.—Houston [1st Dist.]
Dec. 20. 2018, no pet. h.) (mem. op.). In its opinion, the panel applied the two-prong
definition of “sexually violent predator” contained in section 841.003(a) of the
Health and Safety Code. Id. at *10. Under this definition, a person qualifies as a
“sexually violent predator” if he is “a repeat sexually violent offender” and he
“suffers from a behavioral abnormality” that makes him “likely to engage in a
predatory act of sexual violence.” See TEX. HEALTH & SAFETY CODE §§ 841.002(9),
841.003(a); see also id. at § 841.003(b) (defining “repeat sexually violent offender”);
id. at § 841.002(2), (4) (defining “behavioral abnormality” and “predatory act”).
After the panel issued its decision, the Second Court decided In re
Commitment of Stoddard, No. 02-17-00364-CV, 2019 WL 2292981 (Tex. App.—
Fort Worth May 30, 2019, no pet. h.) (mem. op. on reh’g). In Stoddard, a divided
panel held that section 841.001’s plain language limited the category of persons who
suffer from a behavioral abnormality making them likely to engage in a predatory
act of sexual violence to “a small but extremely dangerous group of sexually violent
predators” who are “not amenable to traditional mental illness treatment modalities
and that makes the predators likely to engage in repeated predatory acts of sexual
violence.” TEX. HEALTH & SAFETY CODE § 841.001; see Stoddard, 2019 WL
2292981, at *11–12. The Second Court further noted that a civil commitment statute
like Chapter 841, which determines “a person’s liberty for a practically indefinite
length of time based on ‘soft’ science,” might not pass constitutional muster without
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section 841.001’s limitations. See Stoddard, 2019 WL 2292981, at *12 (citing
Kansas v. Hendricks, 521 U.S. 346, 357 (1997)).
Farro has raised Stoddard in conjunction with his motion for en banc
reconsideration of the panel’s decision. In a letter to the court, he contends that
“Stoddard supports the claims made in his brief in this case that the evidence is
legally and/or factually insufficient to support the jury’s verdict.” The state has
responded in opposition, urging the court to reject Stoddard’s statutory analysis.
A prior panel of our court rejected the interpretation of the civil commitment
statute that Stoddard adopted. See In re Commitment of Williams, 539 S.W.3d 429,
437–39 (Tex. App.—Houston [1st Dist.] 2017, no pet.). In Williams, the court held
that section 841.001 does not limit the definition of “sexually violent predator.” Id.
Williams was incorrectly decided. The panel in the present case consequently
applied a definition of “sexually violent predator” that is broader than the one that
the civil commitment statute requires us to apply. Stoddard states the correct
definition of “sexually violent predator” and I therefore would grant Farro’s motion
for en banc reconsideration in order to overrule Williams and remand Farro’s case
back to the trial court for a new trial applying the correct definition of “sexually
violent predator,” one that incorporates the limitations imposed by section 841.001.
A contrary interpretation of Chapter 841 reads section 841.001 out of the
statute, contrary to established principles of statutory interpretation, which require
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us to interpret statutes as a whole so that no part is made meaningless. See TIC
Energy & Chem. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016). Nor can section 841.001
be interpreted as having no bearing on the definition of “sexually violent predator”
merely because it consists of “Legislative Findings” rather than appearing in the
statute’s definitions section or in section 841.003(a). See TEX. GOV’T CODE
§ 311.024 (section headings do “not limit or expand the meaning of a statute”);
Fredericksburg Care Co. v. Perez, 461 S.W.3d 513, 522–25 (Tex. 2015) (looking to
legislative findings in interpreting statute’s purpose). Williams, however,
erroneously does so, treating section 841.001 as surplusage.
Moreover, interpreting the civil commitment statute without reference to
section 841.001 “risks ripping Chapter 841 from its constitutional foundation” by
allowing commitment based solely on a person’s prior convictions for sex offenses.
Stoddard, 2019 WL 2292981, at *12. As the Second Court observed:
Such a result would present a high risk of injustice by allowing a
factfinder to give the State a second bite at the apple after a sex offender
has already served his sentence to the extent required by law. And the
bite is a tempting one, given that the nature of the underlying offense
will necessarily include deplorable acts involving sexually predatory
and assaultive behavior. But while perhaps an understandable
sentiment, the notion that all sex offenders should be indefinitely
confined is not compatible with our system of due process and justice.
Permitting the State to extend a sex offender’s confinement indefinitely
based upon not much more than the facts related to the underlying crime
for which he was convicted allows a factfinder to succumb to the
temptation to lock up sex offenders and throw away the key. It would
allow juries to do in civil cases that which cannot be done in criminal
cases—punish twice for the same conduct.
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Id.
For these reasons, I respectfully dissent from the court’s denial of Farro’s
motion for en banc reconsideration.
Gordon Goodman
Justice
En banc court consists of Chief Justice Radack and Justices Keyes, Higley, Lloyd,
Kelly, Goodman, Landau, Hightower, and Countiss
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