Minnesota was one of the first states in the nation to establish a civil commitment program for violent sexual offenders. A federal court in June 2015 declared the state’s much mimicked 21-year-old program unconstitutional. That same day Texas Gov. Gregg Abbott signed into law a piece of legislation designed to reform this state’s civil commitment program which had faced many of the same legal issues the federal court had dealt with in the Minnesota. In so doing, Texas became the only state to implement reforms before a federal court challenge could be mounted as has been the case in most of the other 19 states maintaining civil commitment programs.
Constitutional Challenges Spur Reforms
The constitutional challenges, and the mounting civil libertarian criticism, of the civil commitment programs focuses primarily on the fact that no committed sex offender is ever duly discharged from such programs. For example, no offender was ever duly discharged from the Minnesota program before the 2015 federal court intervention, and only three offenders were released into community-based treatment program.
Likewise, between 1999 (when Texas established its civil commitment program) and 2015, no offender was released and only one had secured a provisional release in January of 2015.
The Executive Director of the Texas Office of Violent Sex Offender Management (OVSOM), Marsha McLane, was quoted by the media as saying in response to Gov. Abbott’s reform legislation: “This bill goes a long way to correcting many issues with the civil commitment program. It is clear the governor and the Legislature are very serious about protecting the citizens of the state while providing a constitutional treatment program.”
Bad Facts Make Bad Law
The case of Michael Bohannan puts the “providing a constitutional treatment program” to the test.
Bohannan is a sexual predator, no question about that. The following criminal history underscores this assertion:
- In 1982, Bohannan was in Texas for the rape of a 9-year old child and 8-year-old child just weeks apart. He was apprehended and entered guilty pleas to both charges in 1983. He was given a 20-year-sentence.
- In 1991, Bohannan was released from prison under mandatory supervision. The following year, 1992, he was arrested for trying to kidnap a 9-year-old from a K-Mart store. After pleading guilty to this offense, he was returned to prison in 1993.
- Bohannan remained in a Texas prison five years this time. He was released in 1998. Two years later he moved to South Carolina to live with his mother. He was arrested for exposing himself to an 8-year-old child in a toy store. He was given a three-year sentence in a South Carolina prison.
- In 2002, after completing his South Carolina sentence, Bohannan was returned to Texas, where his mandatory supervision from his 1993 conviction was revoked.
- In 2004, Bohannan was released a third time under mandatory supervision.
- In 2006, while enrolled in sex offender therapy as a condition of his 2004 supervised release, Bohannan was accused of viewing child pornography on a county law library computer. His supervised release was once again revoked. He was returned to prison.
At that juncture, a Texas Department of Criminal Justice psychologist examined and determined that Bohannan was a “sexually violent predator.”
Civil Commitment of Sexually Violent Predator
Pursuant to Chapter 841 of the Texas Health and Safety Code, the State petitioned to have Bohannan civilly committed. A civil commitment trial was conducted in January 2009. As he was permitted to do under Chapter 841, Bohannan designated an expert to testify in his behalf. The trial judge, however, refused to allow the expert to testify. As a result, a jury found that Bohannan suffered from a “behavioral abnormality” as defined under Chapter 841 after which the trial court adjudicated him to be a sexually violent predator and ordered him civilly committed.
Bohannan appealed the civil commitment order to the Ninth Court of Appeals, arguing that he had court had erred when it prevented his expert from testifying.
Commitment Begins While Case on Appeal
Pursuant to Chapter 841, Bohannan was transferred to the supervision of the Council of Sex Offender Treatment (CSOT) (which was replaced by the OVSOM in 2011) in January 2009. The CSOT placed him at a secured residential facility where he was assigned a case manager who provided him with a set of written rules he had to comply with while at the facility. He was required to be under a GPS monitoring system at all times. This system functioned in three parts: an ankle bracelet, a miniature tracking device (MTD) that had to be carried throughout the day, and a charging station for the MTD.
The MTD tracked Bohannan’s GPS location. If the MTD did not remain within a specified distance, a “bracelet gone alert” would be sent to Bohannan’s case manager.
Less than three weeks after being placed at the residential facility, Bohannan’s MTD signaled a “bracelet gone alert” on February 14, 2009. Four times during the following month, March, Bohannan’s MTD signaled bracelet gone alerts. These five alerts were listed as violations of the civil commitment order.
Civil Commitment Reversed
Sixteen months later, July 2010, the Ninth Court of Appeals reversed the judgment of civil commitment and remanded the case for a new trial. Eight months after this ruling (March 2011), Bohannan’s case manager tried unsuccessfully to get him to sign and acknowledge receipt of the civil commitment rules at the residential facility. Bohannan refused. These two refusals were listed as additional violations of the civil commitment order.
The following month (April 2011) Bohannan got into a verbal altercation with the staff at the residential facility who called the local police. He was arrested and taken to the local jail following the execution of a parole revocation warrant. This incident was listed as Bohannan’s eighth violation of the civil commitment order.
In August 2012, the Texas Supreme Court upheld the Ninth Court of Appeals reversal/new trial order in the civil commitment case. The official mandate of the Supreme Court’s ruling, however, was not issued until January 2013.
Indicted for Violations of Civil Commitment, Sentenced to Life in Prison
In the meantime, the State in October 2012 indicted Bohannan for the eight violations of the civil commitment order.
In February 2013, Bohannan was tried, convicted, and sentenced to life in prison for the violations of the civil commitment order. The life sentence was imposed because the State used the South Carolina indecent exposure conviction and the two Texas rape convictions as underlying felonies to secure a habitual offender finding by the jury.
In an unpublished October 2014 decision, the Ninth Court of Appeals upheld Bohannan’s conviction and life sentence.
The case arrived at the Texas Court of Criminal Appeals with this question for the court to answer: Can a conviction for violating a civil commitment order be upheld when the underlying commitment order has been reversed on appeal?
Civil Commitment Order Effective Until Mandate Issued
On November 22, 2017, the Court of Criminal Appeals said such a conviction can stand. The court held that Bohannan was required to follow the terms of the civil commitment order while the appeal of the judgment of civil commitment was pending. The court concluded: “Appellant’s civil commitment order was effective immediately upon entry. Once the order was issued, Appellant was obliged to follow it until it was eventually reversed. The fact that the order was reversed does not excuse violations before the reversal.”
In effect, the State of Texas washed its hands of Michael Bohannan with the life sentence imposed on him. He is now beyond the pale of treatment. He is considered incorrigible, too sexually dangerous to even be civilly committed. He will never be paroled again. He will die in a prison cell.