in the Commitment of Richard A. Dunsmore ( 2019 )

Opinion issued May 21, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00183-CV
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IN THE COMMITMENT OF RICHARD A. DUNSMORE, Appellant
On Appeal from the 412th Judicial District Court
Brazoria County, Texas
Trial Court Case No. 84023-CV
MEMORANDUM OPINION
Appellant, Richard A. Dunsmore, attempts to appeal the trial court’s February
7, 2018 order denying his unauthorized petition for release. This Court notified
Dunsmore of our intent to dismiss for lack of jurisdiction and invited a response
establishing that this Court has jurisdiction. Dunsmore filed a response but has not
demonstrated that we have jurisdiction. We dismiss the appeal for lack of
jurisdiction.
Background
Richard Dunsmore was convicted of sexual assault and attempted sexual
assault and sentenced to 7 years in TDCJ, and this Court affirmed the conviction.
See Dunsmore v. State, No. 01–10–00981–CR, 2012 WL 1249418 (Tex. App.—
Houston [1st Dist.] Apr. 12, 2012, pet. ref’d). Six months before his scheduled
release date, the State petitioned to have him civilly committed under the Sexually
Violent Predator statute. See TEX. HEALTH & SAFETY CODE § 841.003. After a jury
trial, he was adjudicated a sexually violent predator. The statute provides for appeal
from an order determining status as a sexually violent predator, and Dunsmore
appealed that order to our Court. See In re Commitment of Dunsmore, 562 S.W.3d
732, 736 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (affirming).
Dunsmore then filed an “unauthorized petition for release,” which the trial
court denied on February 7, 2018, concluding that the petition was frivolous and that
Dunsmore had not shown probable cause that his “behavioral abnormality has
changed such that he is no longer likely to engage in a predatory act of sexual
violence.” Dunsmore seeks to appeal this order.
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Lack of Jurisdiction
To determine whether we have jurisdiction over the denial of Dunsmore’s
unauthorized petition for release, we must turn to Chapter 841 of the Health and
Safety Code. When construing statutes, our primary objective is to give effect to the
Legislature’s intent as shown by the statutory text. See Colorado Cty. v. Staff, 510
S.W.3d 435, 444 (Tex. 2017). If the text is clear, the text is determinative of the
Legislature’s intent. See id. When considering the language of the particular
statutory provisions at issue, we do not consider them in isolation but view them in
the context of the statute as a whole. See Jaster v. Comet II Constr., Inc., 438 S.W.3d
556, 562 (Tex. 2014).
The statute provides for appeal from the initial determination that a person is
a sexually violent predator. See TEX. HEALTH & SAFETY CODE § 841.062(a). Once a
sexually violent predator is committed, Chapter 841 provides for periodic
commitment reviews. For example, Section 841.101 provides for a biennial
examination. Id. § 841.101(a). Chapter 841 also includes provisions for the filing of
two types of petitions for release: authorized and unauthorized. See id. §§ 841.121,
841.122.
Dunsmore filed an unauthorized petition for release. The statute does not
provide for an appeal of the trial court’s ruling on an unauthorized petition for
release, or of any trial court ruling other than the initial determination of sexually
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violent predator status. Courts have addressed appeals of orders under the sexually
violent predator statute, other than initial commitment orders, and generally
determined that they are interlocutory and not appealable. See In re Commitment of
Adams, 408 S.W.3d 906, 909 (Tex. App.—Beaumont 2013, no pet.) (dismissing
appeal from order modifying commitment order as interlocutory and not
appealable); In re Commitment of Cortez, 405 S.W.3d 929, 932, 936 (Tex. App.—
Beaumont 2013, no pet.) (dismissing appeal of modification order because statute
does not provide for appeal, order contains no finality language, and further holding
that appellant had not shown himself entitled to mandamus relief); In re Commitment
of Richards, 395 S.W.3d 905, 909–10 (Tex. App.—Beaumont 2013, pet. denied)
(dismissing appeal from order after biennial review as interlocutory and not
appealable because the order did not follow trial on the merits or reflect trial court
intent that order was final).1
One court has ruled on the appealability of an order denying an unauthorized
petition for release and concluded that it is a final appealable judgment. See In re
Commitment of Keen, 462 S.W.3d 524, 526 (Tex. App.—Beaumont 2015, no pet.).
1
The Sexually Violent Predator statute previously required all commitment proceedings to
be initiated in Montgomery County. See Tex. Civil Commitment Office v. Hartshorn, 550
S.W.3d 319, 324–25 (Tex. App.—Austin 2018, no pet.) (citing to Act of May 30, 1999,
76th Leg., R.S., ch. 1188, § 4.01, sec. 841.041(a), 1999 Tex. Gen. Laws 4122, 4146
(amended 2015) (current version at TEX. HEALTH & SAFETY CODE § 841.041(a))).
Therefore, the Beaumont Court of Appeals decided all appeals involving sexually violent
predators before the statute was amended. See Hartshorn, 550 S.W.3d at 324 n.2.
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In reaching its decision, the court determined that the order concluded a “discrete
phase of the [sexually violent predator] proceeding” and disposed of all parties and
claims. Id.
A determination that a ruling is a final judgment because it concludes a
“discrete phase” is a unique exception to the “one final judgment rule” that has been
applied in probate and guardianship cases to permit appeals of discrete issues. See
In the Guardianship of Macer, 558 S.W.3d 222, 226 (Tex. App.—Houston [14th
Dist.] 2018, no pet.); In re Guardianship of Miller, 299 S.W.3d 179, 184 (Tex.
App.—Dallas 2009, no pet.). This probate and guardianship exception to the “one-
judgment rule” has been held to be “necessary because of the need to ‘review
controlling, intermediate decisions before an error can harm later phases of the
proceeding.’” Miller, 299 S.W.3d at 184 (quoting De Ayala v. Mackie, 193 S.W.3d
575, 578 (Tex. 2006)). The exception has also been applied to discrete orders in
receivership proceedings. See Art Inst. of Chicago v. Integral Hedging, L.P., 129
S.W.3d 564, 571 (Tex. App.—Dallas 2003, no pet.) (citing to Huston v. FDIC, 800
S.W.2d 845 (Tex. 1990)).
Keen appears to be the only case to extend this exception to an order
concerning a sexually violent predator, and the Keen court does so without
explanation or authority. Absent any discussion or citation to authority supporting
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extension of this unique exception to an order under the sexually violent predator
statutory scheme, we decline to follow the Keen holding.
There is no provision in the Sexually Violent Predator statute for appeal of an
order denying an unauthorized petition for release. “A statute’s silence can be
significant.” PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P’ship, 146
S.W.3d 79, 84 (Tex. 2004). If the statute grants a remedy in one part but omits one
elsewhere, that may be exactly what the Legislature intended and we should honor
that difference. See id. The statute provides for appeal of the initial commitment
order, but it does not provide for appeal from an order denying a petition for
unauthorized release.
Moreover, other indications of finality are not present. Dunsmore remains
civilly committed as a sexually violent predator and the trial court retains continuing
jurisdiction as long as the commitment order remains in effect. See Adams, 408
S.W.3d at 908. The order contains no language indicating the trial court’s intent for
this to be a final judgment. See Cortez, 405 S.W.3d at 932 (holding modification
order to be interlocutory because appellant remained committed, trial court retained
continuing jurisdiction, and order lacked severance or finality language).
Because the trial court’s order finds that Dunsmore’s petition is frivolous and
because he failed to show a change in his behavioral abnormality, his commitment
and the trial court’s supervisory jurisdiction continues. Thus, we conclude that the
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order denying Dunsmore’s petition for unauthorized release is interlocutory and
unappealable.
We have jurisdiction to hear an interlocutory appeal only if authorized by
statute. See TEX. CIV. PRAC. & REM. CODE § 51.014; Stary v. DeBord, 967 S.W.2d
352, 352–53 (Tex. 1998). The February 7, 2018 order is not one for which an
interlocutory appeal is statutorily authorized, either by Chapter 841 or by Section
51.014. See TEX. HEALTH & SAFETY CODE §§ 841.122, 841.123, 841.124; TEX. CIV.
PRAC. & REM. CODE § 51.014. Because we have determined that the order appealed
is interlocutory, we have no jurisdiction.
Dunsmore raised certain constitutional issues in his petition, but he has done
so through an attempted direct appeal of a denied unauthorized petition for release
instead of a collateral attack on the commitment order; therefore, we cannot reach
his constitutional arguments. Cf. Ex parte Miller, No. 09–08–00194–CV, 2008 WL
5780816, at *1 (Tex. App.—Beaumont Dec. 18, 2008, no pet.) (after trial court
entered civil commitment order providing for Miller’s treatment as a sexually violent
offender, Miller filed habeas petition collaterally attacking the commitment order
and alleging he was illegally detained); In re Commitment of Fisher, 164 S.W.3d
637, 656 (Tex. 2005) (reviewing court may not reach appellant’s constitutional
challenges because they were not raised in trial court).
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We dismiss the appeal for lack of jurisdiction. Any pending motions are
dismissed as moot.
PER CURIAM
Panel consists of Justices Lloyd, Kelly, and Landau.
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