Stephen Patrick Black v. Marsha McLane, Executive Director of the Texas Civil Commitment Office

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-19-00241-CV
________________________
STEPHEN PATRICK BLACK, APPELLANT
V.
MARSHA MCLANE, EXECUTIVE DIRECTOR OF THE
TEXAS CIVIL COMMITMENT OFFICE, APPELLEE
On Appeal from the154th District Court
Lamb County, Texas
Trial Court No. DCV-20031-18; Honorable Felix Klein, Presiding
March 23, 2021
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Stephen Patrick Black, proceeding pro se and in forma pauperis, filed
suit against Appellee, Marsha McLane, Executive Director of the Texas Civil Commitment
Office, and others, challenging the constitutionality of chapter 841 of the Texas Health
and Safety Code. 1 McLane filed a plea to the jurisdiction, which the trial court granted,
and then dismissed Black’s suit without prejudice for lack of subject matter jurisdiction.
Black presents the following issues questioning the trial court’s order of dismissal: (1)
Lamb County has inherent jurisdiction over his constitutional claims; (2) a committing
court’s exclusive jurisdiction is limited to specific proceedings none of which encompass
constitutional challenges; and (3) interpreting the jurisdiction provision as granting the
committing court exclusive jurisdiction over constitutional challenges conflicts with the
restriction on jurisdiction over proceedings under section 841.085 of the Texas Health
and Safety Code. In toto, Black’s issues can be distilled into one complaint questioning
whether the Legislature intended that a civil commitment court retain exclusive jurisdiction
over a constitutional challenge to the commitment requirements of section 841.082.
McLane responds that Black’s suit is essentially a petition to modify the conditions of his
civil commitment under chapter 841 of the Code and that the intent of the Legislature is
clear that committing courts retain jurisdiction over such claims. By reply brief, Black
disputes McLane’s contentions. We agree with McLane and affirm.
BACKGROUND
Pursuant to a plea bargain, Black was convicted of indecency with a child in 2006
and was sentenced to twelve years confinement. In April 2016, he was civilly committed
after a jury found him to be a “sexually violent predator.” See TEX. HEALTH & SAFETY CODE
ANN. §§ 841.003, 841.081 (West 2017). The court that ordered his civil commitment is
the 274th District Court of Guadalupe County, Texas. Since that commitment, he has
been housed in the Civil Commitment Facility in Lamb County, Texas, and has filed
1 Chapter 841 is known as the Sexually Violent Predators Act. See §§ 841.001-.151 (West 2017
& Supp. 2020).
2
various suits and mandamus proceedings in courts having jurisdiction in both Guadalupe
and Lamb Counties. 2
In this most recent suit, Black filed a petition in the 154th District Court of Lamb
County, 3 asserting the Lamb County District Court had jurisdiction to entertain his
constitutional challenges to section 841.082(a)(4)(A)(ii), (iii) of the Texas Health and
Safety Code. See TEX. HEALTH & SAFETY CODE ANN. § 841.082(a)(4)(A)(ii), (iii) (West
Supp. 2020). The relevant portions of the statute he challenges on appeal provide as
follows:
(a) Before entering an order directing a person’s civil commitment, the judge
shall impose on the person requirements necessary to ensure the person’s
compliance with treatment and supervision and to protect the community.
The requirements shall include:
***
(4) requiring the person to submit to appropriate supervision and:
(A) submit to tracking under a particular type of tracking
service, if the person:
***
(ii) is in one of the two most restrictive tiers of treatment, as
determined by the office; [or]
(iii) is on disciplinary status, as determined by the office . . . .
2A non-exhaustive list of those filings includes the following cases: In re Black, No. 07-20-00363-
CV, 2021 Tex. App. LEXIS 1163 (Tex. App.—Amarillo Feb. 12, orig. proceeding); In re Commitment of
Black, 594 S.W.3d 590 (Tex. App.—San Antonio 2019, no pet.); In re Black, No. 04-19-00107-CV, 2019
Tex. App. LEXIS 3900 (Tex. App.—San Antonio May 15, 2019, orig. proceeding); In re Black, No. 04-19-
00094-CV, 2019 Tex. App. LEXIS 1962 (Tex. App.—San Antonio March 13, 2019, orig. proceeding); In re
Commitment of Black, No. 04-19-00001-CV, 2019 Tex. App. LEXIS 1019 (Tex. App.—San Antonio Feb.
13, 2019, no pet.) (mem. op.); In re Black, No. 04-18-00700-CV, 2018 Tex. App. LEXIS 9973 (Tex. App.—
San Antonio Dec. 5, 2018, orig. proceeding); In re Commitment of Black, 522 S.W.3d 2 (Tex. App.—San
Antonio 2017, pet. denied).
3 Black pleaded his suit as a class-action lawsuit; however, the record does not reflect that class
certification ever occurred.
3
By his suit, Black sought declaratory relief, an immediate preliminary injunction,
and a permanent injunction to have “these unconstitutional devices (GPS tracking
monitors) permanently removed.”4 Despite the requested relief, Black specifically
asserted he was not challenging the requirements of his civil commitment.
McLane responded with a plea to the jurisdiction alleging that the 154th District
Court of Lamb County lacked jurisdiction to entertain Black’s suit because essentially, the
remedy he sought was removal of the GPS tracking device—a modification of his
commitment requirements which could only be provided by the court that originally
ordered his civil commitment. McLane proposed that Black’s constitutional challenge was
simply a disguise for removal of the requirement that he wear a GPS tracking device.
After a brief hearing on McLane’s plea to the jurisdiction, at which Black testified,
the trial judge of the 154th District Court agreed the court had no jurisdiction to hear the
suit and it was dismissed without prejudice. The trial judge further announced that Black
was free to file his suit in Guadalupe County, the court of proper jurisdiction, to address
any amendments to his order of commitment. In lieu of refiling his claim in the 274th
District Court of Guadalupe County, Texas, Black appealed the trial court’s dismissal of
his suit to this court.
Here, the gist of Black’s complaints is that requiring him to wear a GPS tracking
device while confined in a maximum-security facility is punitive and violates his
constitutional rights. He questions the Legislature’s intent with regard to the statute’s
4 We note that Black has previously requested removal of his tracking device. However, the request
was impliedly denied when the trial court found in a May 9, 2018 order that none of the requirements of his
civil commitment should be modified. See In re Black, No. 04-18-00700-CV, 2018 Tex. App. LEXIS 9973,
at *6-7 (Tex. App.—San Antonio Dec. 5, 2018, orig. proceeding).
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requirement that confined individuals in more restrictive tiers of treatment be required to
wear tracking devices. He urges that tracking devices should only be intended to monitor
individuals out in the community and not those, who like himself, are confined.
APPLICABLE LAW
The Sexually Violent Predators Act was enacted in 1999 with the intent of treating
a “small but extremely dangerous group of sexually violent predators” that suffer from a
behavioral abnormality. § 841.001. The Texas Civil Commitment Office is responsible
for providing treatment and supervision for committed individuals. §§ 841.007, 841.083.
The office developed a five-tiered treatment program to transition committed individuals
from “total confinement” to less restrictive housing and supervision, and eventually, to
release from civil commitment. See § 841.0831. 5 The first tier is the most restrictive and
the fifth tier the least restrictive. In re Bluitt, 605 S.W.3d 199, 201 (Tex. 2020). Tier one
and tier two individuals are required to wear a GPS tracking device. § 841.082(a)(4)(A)(ii),
(iii). Black testified he is presently in tier two treatment.
Section 841.082(d) of the Code provides that the “committing court retains
jurisdiction of the case with respect to a proceeding conducted under this subchapter,
other than a criminal proceeding involving an offense under Section 841.085, or to a civil
commitment proceeding conducted under Subchapters F and G.” § 841.082(d).
(Emphasis added). The subchapter referred to in the statute as subchapter E addresses
modifications of the requirements of commitment. Section 841.082(e) provides that the
5 Under a five-tiered treatment program, the Texas Civil Commitment Office evaluates a committed
person’s housing and movement through each tier “based on the person’s behavior and progress in
treatment.” In re Bluitt, 605 S.W.3d 199, 201 (Tex. 2020).
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requirements imposed on an individual who has been civilly committed may be modified
by the committing court at any time after notice to each affected party to the proceedings
and a hearing. § 841.082(e). (Emphasis added).
PLEA TO THE JURISDICTION
A plea to the jurisdiction is a dilatory plea that challenges whether a trial court has
the authority to decide the subject matter of a specific cause of action. Tex. Dep’t of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether a trial court has
subject matter jurisdiction is a question of law that we review de novo. Tex. DOT &
Edinburg v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 166 (Tex. 2013); Miranda, 133
S.W.3d at 226. In doing so, we exercise our own discretion and redetermine each legal
issue, without giving deference to the lower court’s decision. See Quick v. City of Austin,
7 S.W.3d 109, 116 (Tex. 1999) (op. on reh’g).
In deciding a plea to the jurisdiction, a court should construe the pleadings liberally
in favor of the pleader, look to the pleader’s intent, and accept as true factual allegations
contained in the pleadings. See Miranda, 133 S.W.3d at 226, 228. A court deciding a
plea to the jurisdiction is not required to look solely to the pleadings but may consider
evidence submitted by the parties, and it must do so, when necessary to resolve the
jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.
2000).
ANALYSIS
In the trial court and on appeal, Black couches his complaints as violations of his
constitutional rights and attacks that portion of chapter 841 which requires him to submit
to GPS tracking under a particular type of tracking service while confined in a civil
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commitment facility as being unconstitutional. § 841.082(a)(4)(A)(ii), (iii) (requiring a
tracking device if the person is in one of the two most restrictive tiers of treatment (tier
one or tier two) or is on disciplinary status). Even construing Black’s pleadings liberally
and in his favor, the relief he seeks is to have his GPS monitoring device removed—a
modification of his commitment requirements. See § 841.082(e) (providing the
requirement imposed under subsection (a) may be modified by the committing court
which retains jurisdiction to amend the conditions of a civil commitment order).
Furthermore, we look to the substance of Black’s petition to determine the nature
of the relief he seeks. See Cupit v. Texas Civil Commitment Office, No. 07-18-00228-
CV, 2018 Tex. App. LEXIS 9384, at *4 (Tex. App.—Amarillo Nov. 16, 2018, no pet.) (mem.
op.). See also Ryland Enter. v. Weatherspoon, 355 S.W.3d 664, 666 (Tex. 2011) (per
curiam) (noting that “courts should acknowledge the substance of the relief sought despite
the formal styling of the pleading”). In reviewing Black’s pleadings, we conclude, as does
McLane, that he seeks to modify the requirement of his commitment that he wear a GPS
tracking device, a claim that must be filed in the committing court. Even though Black
purports to challenge the constitutionality of certain portions of section 841.082, when a
case can be resolved on non-constitutional grounds, we need not address constitutional
claims. See In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003) (recognizing that courts only
decide constitutional questions when issues cannot be resolved on non-constitutional
grounds).
As such, we first address Black’s complaints on non-constitutional grounds. As
previously noted, subsections (d) and (e) of section 841.082 provide that the committing
court retains jurisdiction with respect to proceedings under subchapter E and
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modifications of a civil commitment order are to be made by the committing court.
Requiring certain claims that are brought pursuant to the Sexually Violent Predators Act
to remain in the committing court is “logical, prevents different courts from issuing
competing orders as to the same committed person, and maintains continuity of
oversight . . . .” See In re Commitment of Hill, 580 S.W.3d 307, 310 (Tex. App.—Houston
[14th Dist.] 2019, no pet.) (citing Texas Civil Commitment Office v. Hartshorn, 550 S.W.3d
319, 330 (Tex. App.—Austin 2018, no pet.)).
At the hearing in the underlying case, Black testified he was civilly committed in
the 274th District Court of Guadalupe County. 6 As such, the record unequivocally
establishes that the 154th District Court of Lamb County did not have jurisdiction over
Black’s suit. Thus, applying a de novo review, we conclude the trial court did not err in
granting McLane’s plea to the jurisdiction and dismissing Black’s suit without prejudice.
Black’s issues are overruled.
CONCLUSION
The trial court’s Order Dismissing Claims Without Prejudice is affirmed.
Per Curiam
6 The State incorrectly argued that Black was committed in Montgomery County.
8