In the Matter of Michael Fisher
Fisher raised four issues before the Court of Appeals, 13th District of Texas, Corpus Christi. First, Fisher raised that the SVP Act was punitive, both facially and as applied, because Fisher was not competent to understand or comply with the order of commitment. Second, Fisher argued his due process rights were violated when he was forced to proceed to trial when he was incompetent. His argument included that he was denied the opportunity to exercise his right to counsel. Third, Fisher argued that the SVP Act and the order of commitment was unconstitutionally vague. Finally, Fisher argued that his Fifth amendment rights against self-incrimination were violated because he was compelled to testify against himself.
On December 18, 2003, sitting en banc with one judge dissenting, Justice Don Wittig, [Court of Appeals, 13th District of Texas, No. 13-01-00714-CV] concluded that the Texas SVP Act is manifestly punitive, both facially and as applied, and therefore, unconstitutional. Accordingly, the 13th Court of Appeals held that Fisher is entitled to rights under the criminal law, specifically, including the opportunity to effectively assist his counsel, the right to be competent at trial, and to understand and assist in the trial proceedings. Additionally, the 13th Court held that substantive due process requires he be mentally competent to comply with the order of commitment. The Court found that even if the SVP Act were civil or quasi-criminal, Fisher is minimally entitled to enjoy the statutorily specified opportunity to completently exercise his right to counsel. The Court stated that they must distinguish between sex offenders subject to civil commitment and other dangerous persons more properly dealt with in criminal proceedings lest civil commitment becomes a mechanism for retribution or general deterrence.” [Crane 534 U.S. at 412]. The 13th Court held that Fisher was denied substantive and procedural due process, and reversed and remand for further proceedings consistent with this opinion.
In contrast, the Court of Appeals 3rd District of Texas and the Court of Appeals 9th District of Texas have upheld the SVP Act’s constitutionality challenges including the issues of vagueness, due process rights, punitive nature-deterrence and retribution, competency, separation of powers, and Fifth amendment violations. In twenty-two (22) separate SVP challenges, the Court of Appeals for the 3d and 9th Districts has affirmed the constitutionality of the SVP Act.
On November 30, 2004, In the Matter of Fisher was argued before the Texas Supreme Court [In Re Commitment of Michael Fisher, No. 040112]. The Court addressed the arguments and the opinion from the Court of Appeals, 13th District of Texas. Fisher argued that the SVP Act denied his procedural and substantive protections, was punitive in nature-retribution and deterrence, and was unconstitutionally vague. It was unclear whether the Court of Appeals 13th District of Texas based its decision on the United States Constitution or the Texas Constitution so the Texas Supreme Court limited its analysis to the U.S. Constitution, with the assumption that the Texas Constitution is congruent.
The Texas Supreme Court first analyzed whether the Act is punitive as the 13th Court of Appeals held by considering Kansas v. Hendricks, in which the United States Supreme Court upheld the constitutionality of a Kansas statute providing for inpatient civil commitment of sexually violent predators.  521 U.S. at 371.
Relying on Hendricks, courts in fourteen states have determined that their SVP civil commitment schemes are civil, not criminal. The Texas statute mandates a “civil commitment procedure. See id.; TEX. HEALTH & SAFETY CODE § 841.001. The primary legislative intent of the law was two fold, public safety and treatment, and not punishment. See id. § 841.001; Hendricks, 521 U.S. at 383 (Breyer, J., dissenting). The Court found unquestionably, the Legislature gave the SVP Act a civil edifice.
The Texas Supreme Court found that civil commitment under the SVP Act does not implicate either of the two primary objectives of criminal punishment: retribution or deterrence.” Id. at 361-62. The SVP Act “is not retributive because it does not fix liability for prior criminal conduct.” This “absence of the necessary criminal responsibility suggests that the State is not seeking retribution for a past misdeed.” Hendricks, 521 U.S. at 362.
Regarding the issue of deterrence, the Court concluded that any incidental, marginal deterrent effect of Texas’s outpatient-treatment and supervision will necessarily be less than any deterrence effected by Kansas’s scheme of confinement. In Texas, committed SVP’s face far less restrictive means than those in Kansas, where SVP’s live in secure facilities within prison grounds. While some deterrence may result from the Texas Act, an incidental deterrent effect will not make the statute punitive: “any number of governmental programs might deter crime without imposing punishment.” Smith, 538 U.S. at 102.
The 13th Court of Appeals held that the Texas Act was punitive due, in part, to the differences between SVP commitment proceedings and “conventional” mental health commitment. 123 S.W.3d at 845-46. The Texas Supreme Court found that this reasoning not only neglected the SVP’s right to file an unauthorized petition for release at any time, see TEX. HEALTH & SAFETY CODE § 841.123, but the Hendricks holding that potentially indefinite commitment did not evidence punitive intent. Hendricks, 521 U.S. at 363. In Texas, the legislature explicitly found that “the existing involuntary commitment provisions” were inadequate to address the risk of repeated predatory behavior by SVP’s. TEX. HEALTH & SAFETY CODE § 841.001. Thus, the Supreme Court could not conclude that differences between SVP outpatient commitment and other mental health commitment necessarily establish a punitive purpose on the State’s part.
The SVP Act’s rational is a “most significant” factor in determining whether the statute’s effects are punitive or civil. Ursery, 518 U.S. at 290. The United States Supreme Court has “repeatedly held that the Government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest.” Salerno, 481 U.S. at 748. Thus, the State’s interest is twofold: “The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill.” Addington, 441 U.S. at 426.
By contrast, the Texas SVP Act permits the SVP to live at large in the community. Should the SVP violate one of the commitment requirements, however, the offense is a third-degree felony.  TEX. HEALTH & SAFETY CODE § 841.085. Thus, the Texas SVP Act appears at once less restrictive and potentially more restrictive than its out-of-state counterparts. On the whole, however, the freedom from confinement outweighs the criminal sanction imposed for a failure to obey the commitment conditions.
The Court found that while a Texas SVP’s liberty is indeed restrained, the intrusion is far less restrictive than if he were confined in a secure facility in Kansas; and yet the Supreme Court found commitment under the Kansas act to be civil in nature.” Browning, 113 S.W.3d at 859 (citing Hendricks, 521 U.S. at 360 69).
This criminal penalty is separate from the initial commitment proceedings. See, e.g., Smith v. Doe, 538 U.S. 84, 101-02 (2003) (noting that “[a] sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual’s original offense”).