Twenty states and the federal government have laws that permit the civil commitment of sex offenders—most notably child molesters—who have been declared by the courts to be “sexually dangerous” to the general community.


In a October 2015 report, the New York Times found that the state of Minnesota civilly commits more sex offenders per capita than any other state in the nation. The newspaper said the state has committed more than 700 sex offenders over the past two decades—none of whom have been discharged from their commitment, and only a handful of whom have been “provisionally discharged” to live outside state facilities under strict supervision.


Troubled Texas Scheme Led to Civil Commitment Overhaul


The Times report pointed to Texas’s former “unique outpatient method” for dealing with sex offenders following their release from prison. The legislature last year revamped the state’s civil commitment program after a series Houston Chronicle investigative pieces “found that none of the hundreds committed to the program had ever graduated from it.” The investigation also found that nearly half of the men detained for treatment while living in halfway houses and other facilities were actually sent back to prison for breaking the program’s rules.


Texas’s push to overhaul its civil commitment program was led by Sen. John Whitmire (D-Houston)—an overhaul that featured the re-opening of a former prison in Littlefield to house civil commitment detainees who violate rules of the program.


Pathway to “Graduate” for Civil Commitment


“The way it was, it just looked like incarceration with double jeopardy,” Whitmire was quoted as saying. “This (the overhaul) at least holds out a pathway to graduate.”


On September 21, 2016, the Texas Court of Criminal Appeals had an opportunity to explain the state’s civil commitment scheme which it called a “hybrid” process that combines “civil rules and procedures with elements and components of criminal law.” This scheme, and the most current one, permits “long-term supervision and treatment” of sexually violent offenders who have demonstrated they are not amendable to penal rehabilitation and who have “behavioral abnormalities” that are not amendable to “traditional mental-health treatment.”


“Some of these people would scare the hell out of you,” Sen. Whitmire was quoted as saying in the Times piece.


Sexually Violent Predator


Section 841.001 of the Texas Health and Safety Code defines a “sexually violent predator” as “(1) a repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.” The statute defines a “sexually violent offender” as someone who has been convicted of more than one sexually violent offense and who “has a sentence imposed for a sexually violent offense” as defined in the statute.


Criminal Penalties in Texas for Violations of Civil Commitment Order


In 2011, a jury convicted Eric Stevenson of three counts of violating a civil commitment order under Section 841.003.


Pursuant to Section 841.081, a judge ordered Stevenson civilly committed for treatment and supervision following his release from confinement. The civil commitment proceedings were based upon Stevenson’s prior criminal convictions for burglary of a habitation with intent to commit sexual assault and sexual assault of a child under 17 years of age—both sexually violent offenses defined in the civil commitment statutes.


The judge’s civil commitment order required Stevenson to:


  1. Live at a designated facility;
  2. Participate in and comply with the provided treatment;
  3. Submit to GPS tracking and monitoring and not tamper with the GPS device;
  4. Obtain permission to leave his residence; and
  5. Not have any contact with family or friends unless approved by the case manager or treatment provider.


Stevenson appealed these particularly harsh conditions. While the appeal was pending, the State charged Stevenson with three counts of violating the civil commitment order; namely,


  1. He went to his girlfriend’s house without permission;
  2. He removed the GPA device and left the designated facility without permission; and
  3. He failed to make progress in the treatment program.


A jury subsequently found Stevenson guilty on all three counts and assessed his punishment at 17 years.


Judgments Violated Double Jeopardy


The Court of Criminal Appeals found that the “three judgments” against Stevenson violated his double jeopardy rights against multiple punishments. The court reasoned that Section 841.082 under which Stevenson was convicted created only one offense, not separate, punishable offenses for each way a civil commitment order is violated. The court, therefore, set aside counts one and three of the indictment charging a violation of the civil commitment order.


The Stevenson case is interesting for yet another reason.


Texas is the only state that provides criminal penalties for violations of a civil commitment order. But under the 2015 reform amendments, criminal penalties have been taken off the table for many minor infractions of a civil commitment order. The new law allows the supervising agency to utilize in-house sanctions to punish the minor violators.


Will 2015 Amendments be Applied Retroactively?


The natural question, then, is whether the benefits of the new law will be applied retroactively to cases like Stevenson?


The State conceded that counts one and three constituted double jeopardy under the new law, adding that the 2015 amendments should be applied. The appeals court responded:


“ … To indulge the State’s concession requires holding that the statutory amendments apply retroactively, an issue Stevenson did not raise and one upon which we did not grant review. We need not address the amendments’ retroactive application—an issue pending before this Court—having resolved Stevenson’s double jeopardy claims on our double-jeopardy precedent…”


The retroactivity issue is vitally important to those committed under the old version of the civil commitment scheme.


The Chronicle reported last year that Texas has committed more than 350 people since its civil commitment statute took effect in 1999. The newspaper said that not a single person has been discharged from the program since that time.


That’s why the retroactivity of the 2015 amendments are so compelling.


How many people, like Eric Stevenson, have received severe criminal penalties for rule violations under the old law that would perhaps not be permissible under the newer version?


This question begs answer – and we are hopeful that the Court of Criminal Appeals will provide one in the near future.