Texas Supreme Court Rules on Which Experts Qualify for Civil Commitment Trial

by Matt Clarke

On August 31, 2012, the Supreme Court of Texas held that an expert who testifies in a civil commitment proceeding under the Texas Civil Commitment of Sexually Violent Predators Act (CCSVPA), Chapter 861, Texas Health and Safety Code, need not be a physician or psychologist.

Michael Wayne Bohannan was convicted of several sex-related offenses and sex-related parole violations, including crimes against children, over a period of 24 years. Prior to his latest release from prison, the state petitioned for his commitment pursuant to the CCSVPA. This triggered a civil commitment trial before a jury.

For the trial, the state designated two experts: one was a board-certified forensic psychologist and the other a board-certified forensic psychiatrist. Bohannan designated Dr. Anna Shursen, who is a licensed professional counselor and a licensed sex offender treatment provider, and holds a doctoral degree in family sciences and family therapy.

Before the trial, the state filed a motion to exclude Shursen's testimony. The court granted the motion, finding that she "'lacked the forensic training and experience to answer the ultimate question', viz 'whether Bohannan suffers from a behavioral abnormality that predisposes him to commit predatory acts of sexual violence.’" Bohannan was civilly committed and appealed.

The Court of Appeals held that someone "like Shursen, trained in applying actuarial tests evaluating the risk of recidivism, and experienced in recognizing that risk among patients, is qualified to testify whether a person satisfied that part of the definition of abnormality." Holding that the testimony's exclusion was harmful error, it reversed the case for a new trial.

The state filed a petition for review which the Supreme Court granted.

The Supreme Court disagreed with the details of the reasoning of the Court of Appeals, but agreed with its ultimate conclusion. The court held that the single, unified issue is whether a person "suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." An expert whose testimony can assist the jury to determine this issue should be allowed to testify.

The Supreme Court held that the CCSVPA "is no impediment to the admission of non-medical expert testimony in an SVP commitment proceeding." All that is required by the CCSVPA is that the expert "make a clinical assessment based on testing for psychopathy, a clinical interview, and other appropriate assessments and techniques." This Shursen had done. The court held that, provided the expert has the training and experience necessary to perform the required assessment, which Shursen had, the "usefulness of the expert's opinion in assisting the trier-of-fact rests not on the type of license the expert holds but on the expert's knowledge, training, and experience in dealing with sexual offenders."

The Supreme Court concluded that the trial court abused its discretion in excluding Shursen's testimony. Since the state did not challenge the holding by the Court of Appeals that this was harmful, that holding remained intact and the judgment of the court of appeals was affirmed. See: In re Commitment of Bohannan, 388 S.W.3d 296 (Tex. 2012).

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