Beaumont Keeps Past and Present Relief from Being Granted to "Failure to Complete Sex Offender Treatment" Convicts by Legislature.

VanDyke v. State, ___ S.W.3d ___, No. 09-14-00137-CR (Tex. App.-- Beaumont, Feb. 10, 2016, no pet. h.)

Know Nothing About Texas's Sexually Violent Predator Law? This Paragraph's for You.

Seventeen years ago, Texas created a sexually-violent-predator law. Texas prisoners about to be released who had had two sex offenses and who had a behavioral abnormality which made them likely to reoffend could be brought to a jury trial, and if those facts were established. those people were made subject to supervision by a state agency, which created and enforced a plethora of rules (Communicating with any person without the permission of the agency was a violation-- viz. during a phone call home to the family, saying "hello" to a family member who was a minor was a violation. If the power went out on the 35-year-old portable tracking transmitters-- the volume of a medium-to-large reference book--  issued to the offender, that was held to be a violation. If one did not follow the rules, they could be convicted of a third degree felony. Practically everyone in the program had two prior felonies, so that these violation sentences could result in prison terms of 40 years or life.
This program (first called Council on Sex Offender Treatment (CSOT), then Office of Violent Sex Offender Management (OVSOM), now Texas Civil Commitment Office (TCCO)) and the court and the judge in charge of these matters have had more problems over the last three years than can fit in a blog post.

Texas Improved the  SVP Law.

Roger Dale VanDyke was convicted of violating civil commitment by failing to complete sex offender treatment and was sentences to 25 years in prison. While the case was on appeal, Texas amended Tex. Health & Safety Code Ann. sec. 841.085 to prohibit prosecution for failing to complete sex offender treatment. The legislature said that this change covered all failures to complete sex offender treatment past, present, or future, except that a final conviction existing on the effective date of the change would remain unaffected.

Well, VanDyke's case was on appeal on the effective date of the change of law, so he asks, is not my conviction overturned? Chief Justice Steve McKeithen, writing for a panel including Justices Hollis Horton and Leanne Johnson, holds that to the extent that the statute change relieves sentenced convicts, the legislature is violating the separation of powers by taking over an executive function-- the granting of clemency to convicts, so that that part of the law is unconstitutional, and no existing sentences, either final or subject to appeal cannot be can be overturned or reduced by the legislature, but only by executive action, viz. the Texas Board of Pardons and Paroles. In a count of the first 13 years of Perry's governorship, one out of 33 requests for clemency, including pardons, was granted, so good luck with that.