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The first case to reach a conclusion under Texas’ “sexually violent predator law,” which permits the civil commitment of sex offenders, ended recently with the offender agreeing to be placed under house arrest. Despite the settlement, defense attorneys vow they will continue to challenge the constitutionality of the controversial state law that permits the state to supervise sex offenders even after they’ve finished their prison term. On Oct. 9, Franklin D. Walston, a convicted child molester who completed a 10-year prison sentence last March, became the first person to face residential restrictions under a new law — Chapter 841 of the Health and Safety Code — passed by the Texas legislature in 1999. As part of the signed settlement, Walston agreed to be placed under house arrest, to move away from a residence located across the street from a Houston elementary school, and stipulated he is a “sexually violent predator.” Montgomery County District Court Judge Lee G. Alworth, who approved the settlement, also issued a gag order preventing lawyers from talking about details of the case. The settlement, which provides for a review of the civil commitment conditions after one year, doesn’t prevent Walston from challenging the constitutionality of Texas’ sexually violent predator law. “We expressed in the order and stipulation that this didn’t stop him from filing a federal civil right suit or a writ challenging … the law,” says Chris Thetford, an attorney with the civil division of the state’s Special Prosecution Unit, which handles prison cases. Rebecca Schlosser, director of civil commitment for the State Counsel for Offenders Office and Walston’s lawyer, says she plans to challenge the law, which she believes is unconstitutional. In 1997, the U.S. Supreme Court, in Kansas v. Hendricks, upheld a Kansas law allowing violent sexual predators to be committed to mental institutions. That decision found that the Kansas law did not constitute double jeopardy for a defendant because civil commitment was treatment, not punishment. In Texas, sex offenders scheduled for release who have two prior offenses are screened by a “multidisciplinary team” before they are released from prison to determine if they meet the definition of a predator. The statute defines a predator as a person who “suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.” A psychologist reviews sex offenders who are flagged. The team then refers cases that it believes involve predators to the prosecutor, who determines whether to file a civil commitment case. A judge or jury decides if the defendant is a “sexually violent predator;” if so, it’s up to the judge to rule on the conditions of commitment — long-term supervision by the state and/or outpatient treatment to be coordinated by a case manager. The court proceedings, by law, are held in Montgomery County. Any violation of the commitment order can land the convict back in prison, defense lawyers say. “We have been informed by the state and by the Council for Sex Offender Treatment that our clients will be thrown in jail even for technical violations of commitment orders,” Schlosser says. “We believe that we can challenge these cases before the trial, after the trial and after they arrest our clients,” she says. “The U.S. Supreme Court has told us that if these cases take on the punitive aspects of a criminal case, they are unconstitutional.” Meanwhile, lawyers involved in civil commitment proceedings continue to watch the Supreme Court for guidance on the issue, especially a case from Washington state. On Oct. 31, the high court is scheduled to hear arguments in Selling v. Young, which questions whether civil commitment is a punitive action or treatment for a sex offender. In Texas, prosecutors — who say they are supposed to handle 15 civil commitment cases a year — have argued that the state law is constitutional because civil commitments for sex offenders are handled on an outpatient basis while other states commit offenders to institutions. The start of civil commitment proceedings in Texas effectively was stalled because of a U.S. Supreme Court decision decided earlier this year. In Victor H. Saldano v. Texas, the court overturned the death sentence of Saldano, who had been convicted of murder, after a psychologist told a Texas jury that Saldano might be a greater threat to society because he is Hispanic. The one-paragraph order released on June 6 vacated the judgment and remanded the case to the Court of Criminal Appeals after the solicitor general of Texas admitted error in the case. The psychologist and one of his associates performed evaluations on several sex offenders scheduled to go through civil commitment proceedings, lawyers involved in the process allege. The first civil commitment hearing was scheduled for June. But prosecutors dropped four such cases because the psychologist and his associate allegedly performed the evaluations, according to Schlosser. “To be really blunt with you, we made a decision that we believe in the law, and the law can do some good things, and we didn’t want there to be a question on someone’s [sexual violent predator civil] commitment,” Thetford says. Meanwhile, Schlosser anticipates that other sex offender clients will accept settlement offers rather than go through a civil commitment case. Notes Schlosser, “There is so much fear on the part of the public about sex offenders that our clients are severely intimidated about going to trial or even out of their homes.”

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