A Civilly Committed Sexually Violent Predator Wants Out, though OSVOM is Opposed; What Does the Trial Judge Need to Do to Pour the Petitioner Out Fastest?

If a person is civilly committed as a sexually violent predator, that person has the right to file a petition for release, even if this petition is not authorized by the Office for Violent Sex Offender Management does not approve. Once the trial judge gets it, the trial judge must deny it "if:

(1)  the petitioner previously filed without the case manager's authorization another petition for release;  and

(2)  the judge determined on review of the previous petition or following a hearing that:

(A)  the petition was frivolous;  or

(B)  the petitioner's behavioral abnormality had not changed to the extent that the petitioner was no longer likely to engage in a predatory act of sexual violence." Tex. Health  & Safety Code Ann. sec. 841.123(c) (West 2010).

"The judge is not required to deny a petition under Subsection (c) if probable cause exists to believe that the petitioner's behavioral abnormality has changed to the extent that the petitioner is no longer likely to engage in a predatory act of sexual violence."  Tex. Health  & Safety Code Ann. sec. 841.123(d) (West 2010).

If the petition is not dismissed summarily, then the petitioner has a right to get an expert at the State's expense, and have a hearing. The petitioner may even insist on a jury to decide that hearing. Paul Keen filed his first unapproved petition for release. The trial judge dismissed it summarily, without holding the hearing that is required. It ruled that probable cause existed to believe that the petitioner's behavioral abnormality has changed to the extent that the petitioner is no longer likely to engage in a predatory act of sexual violence.

Chief Justice Steve McKeithen, writing for a panel including Justices Charles Kreger and Leanne Johnson, pointed out that summary denial under subsection (c) was only available on a first petition if it were frivolous. A non-frivolous first petition had to go on to the fancy section 841.124 hearing. The trial judge had not found that Keen's petition was frivolous, just that it lacked probable cause, which is insufficient for summary dismissal.

In order to get to this ruling, the panel had to determine if it had appellate jurisdiction of the trial judge's decision. They decided that they did, that the trial judge's decision was final as to Keen's petition and that the trial judge's decision had left nothing undecided.

___ S.W.3d ____, In re Paul Keen, (No. 09-14-00406-CV, Tex. App.--Beaumont, April 23, 2015, no pet. h.)