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Texas Supreme Court Upholds Sex Offender Civil Commitment Statute

by Matthew T. Clarke

On May 20, 2005, the Supreme Court of Texas held that the Texas Civil Commitment of Sexually Violent Predators Act (the Act), Chapter 841, Texas Health and Safety Code, is not punitive and therefore is constitutional.

Michael James Fisher is a civilly committed Texas citizen. He was convicted of two sexual assaults following guilty pleas. He was also hospitalized for psychiatric problems multiple times. On October 25, 2000, Texas petitioned to have him committed as a sexually violent predator (SVP).

The Act allows civil commitment of SVPs, who are defined as persons who have been multiply convicted of – or found not guilty by reason of insanity for – various sex crimes. Civilly committed SVPs are subjected to various restrictions on their housing and movement, are required to attend sex offender treatment programs, and are tracked via GPS ankle monitors.

Seventeen states have enacted legislation to civilly commit SVPs. All but Texas require that the committed SVPs be incarcerated in prison-like facilities. Texas allows outpatient treatment, but may require a committed SVP to reside at a designated halfway house. Only two Texas SVPs are allowed to live away from a halfway house.

The Act allows a prospective SVP to demand a jury trial. Fisher did so, and the jury found that he was an SVP and civilly committed him. During trial, Fisher claimed he was incompetent to stand trial and challenged the constitutionality of the Act as applied to him, alleging it was punitive rather than civil and therefore he was entitled to all of his criminal due process rights. He also challenged the Act and his commitment as unconstitutionally vague and claimed that he was unconstitutionally forced to testify against himself.

A Texas court of appeals held that the Act was "manifestly punitive, both facially and as applied," and therefore unconstitutional as applied to Fisher because he was unable to understand the proceedings against him and unable to cooperate with his attorney in his defense. See: Commitment of Fisher v. State, 123 S.W.3d 828 (Tex.App.-Corpus Christi 2003). The state filed a petition for review with the state Supreme Court.

The Texas Supreme Court reversed the court of appeals, holding that the Act was not punitive and thus was civil, not criminal in nature. Therefore, applying the reasoning of the U.S. Supreme Court in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2071, 138 L.Ed.2d 501 (1997), persons being committed under the Act were not entitled to criminal due process rights. Every other court which has addressed the constitutionality of civil commitment laws for SVPs in a total of fourteen other states has relied on Hendricks to hold that such laws are civil, not criminal.

The Texas Supreme Court also held the Act was not unconstitutionally vague. Furthermore, the statute, which does not require SVPs to live in secure facilities, is much less severe than the Kansas SVP civil commitment statute that the U.S. Supreme Court upheld in Hendricks. At least fourteen other states require secure facility commitment for SVPs (see State-by-State Comparison of the Civil Commitment of Sexually Violent Predators at

The state Supreme Court noted that a Texas civilly committed SVP who violates a condition of commitment could be prosecuted for committing a third-degree felony. Thus, the Act is paradoxically less restrictive and more restrictive than its out-of-state counterparts. Finding that the initial freedom afforded SVPs under the Act trumps the increased punishment for violations, the Texas Supreme Court reversed the court of appeals and entered a judgment civilly committing Fisher. See: In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005); cert. denied, 126 S.Ct. 428.

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Related legal case

In re Commitment of Fisher