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Health Law Click here for the full text of this decision FACTS:William P. Browning was civilly committed as a sexually violent predator pursuant to title 11, chapter 841 of the Texas Health And Safety Code. A jury found that Browning suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The trial court entered a final judgment and order of civil commitment. HOLDINGAffirmed. The Texas statute does not implicate to any significant degree the two primary objectives of criminal punishment -� deterrence and retribution. The statute’s purpose is not retributive because it does not affix culpability for prior criminal conduct. A person may be committed because he suffers from a behavioral abnormality, i.e., a congenital or acquired condition that by affecting the person’s emotional or volitional capacity predisposes him to commit a sexually violent offense. It is true that the statute also requires one to have been convicted, or found not guilty by reason of insanity, of at least two sexually violent criminal offenses, but that fact alone does not necessarily imply that the purpose of the statute is to punish offenders a second time for their conduct. As the record in this case makes clear, the primary purpose of requiring proof of prior convictions is evidentiary. In other words, a person’s history of sexually violent conduct is highly relevant to whether he suffers from a behavioral abnormality making it difficult for him to control his impulses to commit sexually violent offenses. The fact that the statute is “tied to criminal activity” is insufficient to render it punitive. Closely related to the issue of retribution is whether the statute requires a finding of scienter — i.e., a criminally culpable mental state. The statute requires commitment to be based on a finding that the person is a sexually violent predator, which means that the person has a behavioral abnormality � i.e., a congenital or acquired condition affecting his emotional or volitional capacity that predisposes him to commit a sexually violent offense to the extent that he becomes a menace to the health and safety of others � and has been either convicted, or found not guilty by reason of insanity, of two or more sexually violent offenses. Browning argues that “by requiring proof of prior criminal convictions, the statute is requiring proof of a criminally culpable mental state.” Browning is mistaken for two reasons. First, the statute does not require proof of criminal convictions �- one can be civilly committed after being found not guilty by reason of insanity. Second, even when the state relies on prior convictions, as in this case, the mere fact that the underlying offenses involved scienter findings does not necessarily mean that commitment under this statute requires such a finding. The statute at issue in this case does not itself require a finding of scienter. A person is committed under the statute because he has a behavioral abnormality that renders him dangerous to the community, and the purpose of requiring prior convictions is primarily evidentiary. Any scienter findings encompassed in prior convictions are entirely incidental to and do not affect commitment under the act. Nor does the statute implicates the other primary purpose of criminal punishment � deterrence. A person is committed under the act because he has a behavioral abnormality affecting his emotional or volitional capacity that makes it difficult for him to control his propensity to commit acts of sexual violence. The U.S. Supreme Court reasoned in Kansas v. Hendricks, 521 U.S. 346 (1997), that, “[s]uch persons are . . . unlikely to be deterred by the threat of confinement.” This court agrees. Moreover, any incidental, marginal deterrent effect of Texas’ outpatient-treatment and monitoring scheme will necessarily be less than any deterrence effected by Kansas’s scheme of confinement. The purpose of the statute is to protect society from sexually violent predators by incapacitating them to some extent and by treating to some degree their difficult-to-treat conditions. In his argument that deterrence is the primary purpose of the statute, Browning relies heavily on �841.085, which provides that “[a] person commits an offense if the person violates a requirement imposed under [s]ection 841.082 [e.g., submitting to electronic monitoring]. An offense under this section is a felony of the third degree.” Browning argues that the section attempts to deter persons “from engaging in future criminal conduct.” The court disagrees. The primary purposes of the statute are protection of the public and treatment of the person. Section 841.085 does attempt to deter persons subject to civil commitment from violating the terms and conditions of the civil commitment articulated in the court’s order. But it is deterrence from future criminal acts which is a purpose of criminal punishment. The statute’s alternate purposes have already been discussed. They are to protect the public from, and to provide treatment to, sexually violent predators. Moreover, it is clear the statute is not excessive in relation to those purposes. The Texas statute and its scheme for outpatient treatment is significantly less severe than its Kansas counterpart that the Supreme Court declared in Hendricks to be civil in nature. After balancing the relevant factors, the court concludes that Browning has failed to meet his burden to show by clearest proof that the statute is so punitive in purpose or effect as to negate the legislature’s intention to deem it civil. Neither the statute nor the order itself is vague in its requirements. Additionally, ��841.082(a)(9) and 841.085 do not create separation-of-powers problems. OPINION: Smith, J.; Law, C.J., Smith and Puryear, JJ.

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