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Click here for the full text of this decision FACTS:A jury determined that Michael James Fisher suffered from a behavioral abnormality that made him likely to engage in a predatory act of sexual violence, and the trial court ordered Fisher committed pursuant to the Civil Commitment of Sexually Violent Predators Act. The court of appeals reversed, holding that the Act was punitive, not civil, and violated Fisher’s due process rights. HOLDING:The court reverses the court of appeals’ judgment and renders judgment civilly committing Fisher pursuant to the act. The Texas statute refers to a “civil commitment procedure,” much like the Kansas statute at issue in Kansas v. Hendricks, 521 U.S. 346 (1997). Additionally, the legislative findings state that public safety and treatment – not punishment – are the primary statutory goals. The U.S. Supreme Court has relied on the “useful guideposts” identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). These factors include: 1. whether the sanction involves an affirmative disability or restraint; 2. whether it has historically been regarded as a punishment; 3. whether it comes into play only on a finding of scienter; 4. whether its operation will promote the traditional aims of punishment-retribution and deterrence; 5. whether the behavior to which it applies is already a crime; 6. whether an alternative purpose to which it may rationally be connected is assignable for it; and 7. whether it appears excessive in relation to the alternative purpose assigned. It is important to note, however, that these factors “may often point in differing directions” and “must be considered in relation to the statute on its face.” Taken together, Kennedy‘s “useful guideposts” point to a conclusion that a commitment proceeding under the act is a civil matter, the court determines. The court of appeals held that the statute was punitive and, therefore, Fisher had the right to be competent at trial. Because the act is civil, however, an SVP who may be incompetent to stand trial on criminal charges can nonetheless be civilly committed pursuant to Texas Health and Safety Code chapter 841. The court notes, however, that while the initial commitment proceeding is civil, a prosecution for violating a condition of commitment is undoubtedly criminal. The court disagrees that the absence of risk levels prohibits individualized treatment and renders the act unconstitutionally vague. Fisher asserts that the act is vague because it predicates commitment on a “behavioral abnormality” rather than a “medically recognized and diagnosable mental illness.” The Texas Legislature defined behavioral abnormality as: a congenital or acquired condition that, by affecting a person’s emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person. Fisher has failed to demonstrate that the act’s behavioral abnormality definition is unconstitutionally vague in every application. Fisher contends that the provisions of his “Treatment and Supervision Contract” appended to the judgment are unconstitutionally vague, allowing arbitrary enforcement. The Treatment and Supervision Contract proscribes a broad spectrum of conduct, some of it reasonable to the court (Fisher cannot contact his victims and must live in a prescribed location), some of it less so (Fisher must not “walk or ride around aimlessly” or “sit and watch people”). Had Fisher requested a ruling from the trial court, it is possible that the trial court would have modified or removed some of the contract conditions of which he now complains. Because Fisher did not assert this claim in the trial court, the court does not reach Fisher’s as-applied vagueness challenge. OPINION:Jefferson, C.J., delivered the court’s opinion. Johnson, J., did not participate in the decision.

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