Recommended Considerations for Experts Who Conduct Assessments Under the Texas Sexually Violent Predator Law

By John Tennison, MD          Copyright September, 2011         All Rights Reserved

          The following considerations are recommended for experts who conduct assessments under the Texas Sexually Violent Predator Law.  Although the information below specifically reflects assessments under Texas law, many of the considerations discussed below also apply to sexually violent predator laws of other states.  For questions or concerns regarding any of the material below, please contact John Tennison, MD at tennison@texaspsychiatry.net or by phone at 210-884-0990.

The Overall Question Addressed in Assessments Under the Texas Sexually Violent Predator Law

Does the evaluee possess the statutorily-defined “behavioral abnormality” consistent with his or her being adjudicated as a “sexually violent predator” in the state of Texas?

More specifically, the overall question can be broken down into the following two questions:

1.  Does the evaluee have “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?”

2.  If present, is this “behavioral abnormality” of the specific type “that makes the person likely to engage in a predatory act of sexual violence?”

The Statutory Basis for Seeking Expert Opinion on the Overall Question

          The need to arrive at an expert opinion on the overall question derives directly from the Texas Health and Safety Code, Chapter 841 (“Civil Commitment of Sexually Violent Predators”), also known as the “Texas Sexually Violent Predator Statute,” or the “Texas SVP Statute.”  Moreover, the wording in quotes of the two specific questions above (which help answer the overall question) is taken directly from the Texas SVP Statute.

“Sexually Violent” Offenses as Defined by the Texas SVP Statute

          In defining “sexually violent offense,” the Texas SVP Statute makes reference to Texas Penal Code and restricts the definition of “sexually violent offense” to only certain types of sexually-related offenses.  Because the Texas SVP Statute does not define all sexually inappropriate behaviors (including some that are the basis for arrest) as "sexually violent" offenses; and because the Texas SVP Statute defines “sexually violent” offenses in ways that are sometimes counter-intuitive, experts must be aware of what statutorily qualifies as a "sexually violent offense" under the Texas SVP statute, so that expert opinions on probabilities of future risk are not the result of a mistaken assessment for the likelihood of behaviors that would not qualify as "sexually violent" offenses in the first place.  The following offenses are statutorily defined by the Texas SVP Statute to be "sexually violent" offenses:

1.  Sexual Assault (Section 22.011) -- Intentionally or knowingly, and without consent, causing any of the following:  (A) Penetration of the anus or sexual organ of another person by any means;  (B) Penetration of the mouth of another person by the sexual organ of the actor;  (C) Contact or penetration of the sexual organ of another person by the mouth, anus, or sexual organ of another person, including the actor; (D) Contact of the anus of a child by the mouth, anus, or sexual organ of another person, including the actor;  (E) Contact by the mouth of a child with the anus or sexual organ of another person, including the actor

(Thus, unless penetration of the anus or sexual organ occurs, exposure and exhibitionism towards adults; and frotteurism and other forms of inappropriate touching of adults, do not constitute "sexual assault" or a “sexually violent offense.”)

2.  Aggravated Sexual Assault (Section 22.021) – This means that, in addition to qualifying for “sexual assault” as described above, additional acts are also committed; or specific types of individuals are sexually assaulted.  Therefore, “Aggravated Sexual Assault” is a subtype or subset of incidents of “sexual assault.”  The additional qualifiers for an act to be “aggravated” include the following:  (A) causing serious bodily injury or attempting to cause the death of the victim or another person in the course of the sexual assault; (B) by acts or words, placing the victim in fear that death, serious bodily injury, or kidnapping will be imminently inflicted on any person; (C) by acts or words occurring in the presence of the victim which threaten to cause the death, serious bodily injury, or kidnapping of any person; (D) using or exhibiting a deadly weapon in the course of the sexual assault; (E) Acting in concert with another who engages in sexual assault directed toward the same victim and occurring during the course of the same sexual assault; (F) Administering or providing flunitrazepam (otherwise known as rohypnol), gamma hydroxybutyrate, or ketamine to the victim of the sexual assault with the intent of facilitating the commission of the sexual assault.; (G) Sexually assaulting someone younger than 14 years of age; (H) Sexually assaulting and elderly individual or a disabled individual.

(Over and beyond determination of whether or not “Sexual Assault” has occurred, determining whether or not incidents of “Aggravated Sexual Assault” have occurred can be useful to the expert assessment, as such “aggravated” acts can be suggestive of the possibility that the actor might have been motivated by “predatory” intent, as required by the Texas SVP Statute.)

3.  Indecency with a Child (Section 21.11(a)(1)) -- "Child" is defined as anyone under 17 years old.  "Sexually violent" "indecency" is committed by anyone who engages in sexual contact with the child or causes the child to engage in sexual contact.

(Based on these definitions, "indecency" has not occurred if the victim is 17 years or older.  For anyone under 17 years old, contact with breasts is considered "sexual contact."  Indecency with a child by exposure of perpetrator's anus or genitals or of the child's anus or genitals is not considered a "sexually violent" offense under the Texas SVP Statute.)

4.  Continuous Sexual Abuse of Young Child or Children (Section 21.02) -- A person commits this offense if, during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless or whether the acts of sexual abuse are committed against one or more victims; and, at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.  "Act of sexual abuse" is defined as any of the following: (A) Aggravated kidnapping, if the kidnapping was committed with the intent to violate or abuse the victim sexually;  (B) Indecency with a child, if the actor committed the offense in a manner other than by touching, including touching through clothing, the breast of a child; (C) Sexual Assault; (D) Aggravated Sexual Assault; (E) Burglary, if committed with the intent of aggravated kidnapping, indecency with a child, sexual assault, or aggravated sexual assault.

(Thus, as long as there was intent, "Sexual Abuse" and thus, “Sexual Violence” are statutorily defined to have occurred in kidnapping and burglary, even when no actual sexual conduct has occurred.)

5.  Burglary (Section 30.02) --  If committed with the intention of “Sexual Assault,” “Aggravated Sexual Assault,” “Indecency with a Child,” “Continuous Sexual Abuse of Young Child or Children,” or “Aggravated Kidnapping,” then “Burglary” is statutorily defined as a “Sexually Violent Offense.”  “Burglary” is defined as (A) Entering a habitation or a building not open to the public without the consent of the owner, and with the intent to commit a felony, theft, or an assault; (B) Remaining concealed in a building or habitation with the intent to commit a felony, theft, or an assault; or (C) Entering a building or habitation and committing or attempting to commit a felony, theft, or assault.

(Thus, when “Burglary” is accompanied by intent to commit “Sexual Assault,” “Aggravated Sexual Assault,” or “Indecency with a Child,” it is possible for a statutorily-defined “Sexually Violent Offence” to have occurred even when none of these 3 particular offenses have actually been committed, but rather, when there had only been an intent to commit 1 of these 3 offenses.  Note:  An allowance for commission by intent alone is already intrinsic to definition for “Continuous Sexual Abuse of Young Child or Children,” or “Aggravated Kidnapping.”)

6.  Aggravated Kidnapping (Section 20.04) – If committed with the intention “to violate or abuse a victim sexually,” then “Aggravated Kidnapping” is a “sexually violent offense.”  Intentionally or knowingly abducting another person with the intent to:  (A) Hold person for ransom or award; (B) Use person as shield or hostage; (C) Facilitate the commission of a felony or the flight after the attempt or commission of a felony; (D) Inflict bodily injury on person or violate or abuse person sexually; (E) Terrorize person or a third person; (F) Interfere with the performance of any governmental or political function; (G) Using or Exhibiting a deadly weapon during the intentional or knowing abduction or another person.

(Thus, the Texas SVP allows “Aggravated Kidnapping” to be statutorily considered a “Sexually Violent Offense,” even in cases where there is only intent, and no actual sexual behaviors have occurred.)

7.  Murder (Section 19.02) -- If “determined beyond a reasonable doubt to have been based on sexually motivated conduct,” then “Murder” is statutorily defined as a “Sexually Violent Offense.”  “Murder” is defined as (A) Intentionally or knowingly causing the death of an individual; or (B) Intends to cause serious bodily injury and commits and act clearly dangerous to human life that causes the death of an individual; or (C) Causing the death of an individual while in the process of committing or attempting to commit a felony or while in flight from the commission or attempt to have committed a felony.

8.  Capital Murder (Section 19.03) – As in the case of “Murder,” “Capital Murder” is also statutorily defined as a “Sexually Violent Offense” if “determined beyond a reasonable doubt to have been based on sexually motivated conduct.”  “Capital Murder” is defined as having occurred when the definition of “Murder” has been sastisfied, and when 1 or more of the following additional characteristics is present:  (A) The person murdered was a peace officer or fireman who was acting in the lawful discharge of their official duty, and who the perpetrator knew was a peace officer or fireman;  (B) The murder was intentionally committed in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat; (C) The Murder was committed for remuneration or the promise of remuneration or another was employed to commit a murder for remuneration or for the promise of remuneration; (D) The murder was committed while escaping or attempting to escape from a penal institution; (E) The murder was committed while the perpetrator was incarcerated in a penal institution; (F) The murder was committed by the employee of a penal institution; (G) The murder was committed with the intent to establish, maintain, or participate in a combination or in the profits of a combination; (H) A perpetrator murders more than one person during the same criminal transaction; (I) A perpetrator murders more than one person during different criminal transactions, but the murders are committed pursuant to the same scheme or course of conduct;  (J) A person under 6 years of age is murdered; (K) A person is murdered in retaliation for or on account of the service or status of that person as a judge or justice of the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court.

(Although knowing that a “sexually motivated” offense was “Capital Murder” rather than just “Murder” does not shed any additional light whether such an offense qualifies as “Sexually Violent Offense,” the knowledge that a murder qualifies as a “Capital Murder” suggests the possibility that sexual motives in the perpetrator of “Capital Murder” might be more likely to be “predatory” in nature, and thus, knowledge that a murder was “Capital Murder” might be of use to an expert conducting an assessment under the Texas SVP Statute.)

(For cases involving “Murder” or “Capital Murder,” and in contrast to the relatively-precise definition for “Predatory Act of Sexual Violence,” the phrase, “based on sexually motivated conduct,” sets a very low threshold, thus resulting in a much larger range of behaviors that could reasonably be considered to have been “based on sexually motivated conduct,” and thus could statutorily constitute a “Sexually Violent Offense,” seemingly even in cases where no sexual contact had occurred whatsoever.)

9.  An attempt, conspiracy, or solicitation (as defined by Chapter 15, Texas Penal Code) to commit any offense listed in Sections 1-8 above.

10.  An offense under prior state law that contains elements substantially similar to the elements of an offense listed in Sections 1-9 above.

11.  An offense under the law of another state, federal law, or the Uniform Code of Military Justice that contains elements substantially similar to the elements of an offense listed in Sections 1-9 above.

Sexual Offenses that the Texas SVP Statute Does Not Consider “Sexually Violent”

            The Texas SVP Statute rejects certain types of sexual offenses as being “sexually violent.”  Therefore, it is extremely important that experts conducting assessments under the Texas SVP Statute exercise great care to not rely on probabilities of risk computed from actuarial instruments in which such probabilities were statistically derived or validated from the occurrence of or arrest for offenses that would not be considered “sexually violent,” let alone “predatory,” under the definitions of the Texas SVP Statute.  Consequently, it is imperative that all experts remain mindful of the following details regarding sexual offenses, none of which are regarded as “sexually violent” offenses under the Texas SVP Statute:

1.  Indecency with a Child Which Does Not Involve Contact (Section 21.11(a)(2)) --  "Indecency with a child" by exposure of perpetrator's anus or genitals or of the child's anus or genitals is not considered a "sexually violent" offense under the Texas SVP Statute.  "Child" is defined as anyone under 17 years old.  That is, "Indecency with a child" has not occurred if the victim is 17 years or older.  For anyone under 17 years old, contact with breasts is considered "sexual contact."

The Texas Penal Code, Title 5 (Offenses Against the Person), Chapter 21 (Sexual Offenses), Section 21.01 (Definitions), defines “Deviate sexual intercourse” as (A) “any contact between any part of the genitals of one person and the mouth or anus of another person;” or (B) “the penetration of the genitals or the anus of another person with an object.”

2.  Homosexual Conduct (Section 21.06) -- “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.”

(Note: “Deviate Sexual Intercourse” is not a sexual offense in and of itself unless it is between two people of the same sex.  That is, “Deviate Sexual Intercourse” occurring between consenting adults of the opposite sex is not a “sexual offense” in the state of Texas.)

3.  Public Lewdness (Section 21.07) -- “A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his:  (1)  act of sexual intercourse; (2)  act of deviate sexual intercourse; (3)  act of sexual contact; or (4)  act involving contact between the person's mouth or genitals and the anus or genitals of an animal or fowl.

4.  Indecent Exposure (Section 21.08) -- “A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.”

5.  Improper Relationship Between Educator and Student (Section 21.12) -- “An employee of a public or private primary or secondary school commits an offense if the employee engages in:  (1) sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works; or (2)  conduct described by Section 33.021, with a person described by Subdivision (1), regardless of the age of that person.”

6.  Improper Photography or Visual Recording (Section 21.15) -- “A person commits an offense if the person: (1)  photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room: (A)  without the other person's consent; and (B)  with intent to arouse or gratify the sexual desire of any person; (2)  photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is a bathroom or private dressing room: (A)  without the other person's consent; and (B)  with intent to: (i)  invade the privacy of the other person; or (ii)  arouse or gratify the sexual desire of any person; or (3)  knowing the character and content of the photograph, recording, broadcast, or transmission, promotes a photograph, recording, broadcast, or transmission described by Subdivision (1) or (2).”

7.  Prostitution (Section 43.02) -- “A person commits an offense if he knowingly: (1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or (2) solicits another in a public place to engage with him in sexual conduct for hire. (b)  An offense is established under Subsection (a)(1) whether the actor is to receive or pay a fee. An offense is established under Subsection (a) (2) whether the actor solicits a person to hire him or offers to hire the person solicited.”

8.  Promotion of Prostitution (Section 43.03) -- “A person commits an offense if, acting other than as a prostitute receiving compensation for personally rendered prostitution services, he or she knowingly: (1)  receives money or other property pursuant to an agreement to participate in the proceeds of prostitution; or (2)  solicits another to engage in sexual conduct with another person for compensation.”

9.  Aggravated Promotion of Prostitution (Section 43.04) -- “A person commits an offense if he knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes.”

10.  Compelling Prostitution (Section 43.05) -- “A person commits an offense if the person knowingly: (1) causes another by force, threat, or fraud to commit prostitution; or (2) causes by any means a child younger than 18 years to commit prostitution, regardless of whether the actor knows the age of the child at the time the actor commits the offense.”

11.  Obscene Display or Distribution (Section 43.22) -- “A person commits an offense if he intentionally or knowingly displays or distributes an obscene photograph, drawing, or similar visual representation or other obscene material and is reckless about whether a person is present who will be offended or alarmed by the display or distribution.”

12.  Obscenity (Section 43.23) -- “A person commits an offense if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device. (b)  Except as provided by Subsection (h), an offense under Subsection (a) is a state jail felony. (c)  A person commits an offense if, knowing its content and character, he: (1)  promotes or possesses with intent to promote any obscene material or obscene device; or (2)  produces, presents, or directs an obscene performance or participates in a portion thereof that is obscene or that contributes to its obscenity.”

13.  Sale, Distribution, or Display of Harmful Material to Minor (Section 43.24) -- “For purposes of this section: (1) "Minor" means an individual younger than 18 years. (2)  "Harmful material" means material whose dominant theme taken as a whole: (A)  appeals to the prurient interest of a minor, in sex, nudity, or excretion; (B)  is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and (C)  is utterly without redeeming social value for minors. (b)  A person commits an offense if, knowing that the material is harmful: (1)  and knowing the person is a minor, he sells, distributes, exhibits, or possesses for sale, distribution, or exhibition to a minor harmful material; (2)  he displays harmful material and is reckless about whether a minor is present who will be offended or alarmed by the display; or (3)  he hires, employs, or uses a minor to do or accomplish or assist in doing or accomplishing any of the acts prohibited in Subsection (b)(1) or (b)(2).”

14.  Sexual Performance by a Child (Section 43.25) -- “In this section: (1) "Sexual performance" means any performance or part thereof that includes sexual conduct by a child younger than 18 years of age. (2)  "Sexual conduct" means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola. (3)  "Performance" means any play, motion picture, photograph, dance, or other visual representation that can be exhibited before an audience of one or more persons. (4)  "Produce" with respect to a sexual performance includes any conduct that directly contributes to the creation or manufacture of the sexual performance. (5)  "Promote" means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above. (6)  "Simulated" means the explicit depiction of sexual conduct that creates the appearance of actual sexual conduct and during which a person engaging in the conduct exhibits any uncovered portion of the breasts, genitals, or buttocks. (7)  "Deviate sexual intercourse" and "sexual contact" have the meanings assigned by Section 43.01. (b)  A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance. A parent or legal guardian or custodian of a child younger than 18 years of age commits an offense if he consents to the participation by the child in a sexual performance. (c)  An offense under Subsection (b) is a felony of the second degree, except that the offense is a felony of the first degree if the victim is younger than 14 years of age at the time the offense is committed. (d)  A person commits an offense if, knowing the character and content of the material, he produces, directs, or promotes a performance that includes sexual conduct by a child younger than 18 years of age.”

15.  Employment Harmful to Children (Section 43.251) – “In this section: (1) "Child" means a person younger than 18 years of age. (2)  "Massage" has the meaning assigned to the term "massage therapy" by Section 455.001, Occupations Code. (3) "Massage establishment" has the meaning assigned by Section 455.001, Occupations Code. (4) "Nude" means a child who is: (A)  entirely unclothed; or (B) clothed in a manner that leaves uncovered or visible through less than fully opaque clothing any portion of the breasts below the top of the areola of the breasts, if the child is female, or any portion of the genitals or buttocks. (5) "Sexually oriented commercial activity" means a massage establishment, nude studio, modeling studio, love parlor, or other similar commercial enterprise the primary business of which is the offering of a service that is intended to provide sexual stimulation or sexual gratification to the customer. (6)  "Topless" means a female child clothed in a manner that leaves uncovered or visible through less than fully opaque clothing any portion of her breasts below the top of the areola. (b)  A person commits an offense if the person employs, authorizes, or induces a child to work: (1)  in a sexually oriented commercial activity; or (2)  in any place of business permitting, requesting, or requiring a child to work nude or topless.”

16.  Possession or Promotion of Child Pornography (Section 43.26): “A person commits an offense if: (1) the person knowingly or intentionally possesses visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct; and (2)  the person knows that the material depicts the child as described by Subdivision (1). (b)  In this section: (1)  "Promote" has the meaning assigned by Section 43.25. (2)  "Sexual conduct" has the meaning assigned by Section 43.25. (3)  "Visual material" means: (A)  any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or (B)  any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.”

Case Law from Texas, the U. S. Supreme Court, and Elsewhere

Which Inform and/or Constrain Expert Assessment of the

Overall Question Addressed in This Assessment

It would be unethical for an expert to knowingly give an opinion that increased the likelihood of an unlawful or unconstitutional adjudication.  Moreover, it would also be unethical for an expert to knowingly give an opinion that influenced triers of fact to think in false, unlawful, or unconstitutional terms.

Consequently, my assessment is informed by and conforms to case law that constrains interpretations of the Texas SVP statute.  Specifically, the following case-law examples inform and/or constrain my assessment.

1.  Court of Appeals, Ninth District of Texas at Beaumont, NO. 09-02-172-CV, IN RE THE COMMITMENT OF DANIEL ALMAGUER, On Appeal from the 410th District Court, Montgomery County, Texas, Trial Cause No. 01-06-3836-CV;  Opinion delivered July 28, 2003.

[Annotation:  In the case of Daniel Amalguer, the Court of Appeals, Ninth District of Texas’s opinion extensively cites the U. S. Supreme Court cases of Kansas v. Hendricks, and Kansas v. Crane, and in doing so, makes it perfectly clear that the Ninth District Texas Court of Appeals considers the opinions issued in Kansas v. Hendricks and Kansas v. Crane to be binding on adjudications of sexually violent predator status in the state of Texas.

Moreover, in deference to Kansas v. Crane, the Ninth District Texas Court of Appeals makes it clear that, regardless of whether an evaluee is regarded as having “emotional incapacity,” “emotional impairment,” “volitional incapacity,” “volitional impairment,” or “cognitive impairment,” there must always be “proof of serious difficulty in controlling behavior” in anyone who is lawfully adjudicated as a sexually violent predator in the state of Texas.  Consequently, constraints by case law, such as by the case of Daniel Almalguer, on the interpretation of the Texas SVP statute made the question, “Is emotional incapacity present?” irrelevant, unless such “emotional incapacity” is understood to be associated with “proof of serious difficulty in controlling behavior.”  Thus, “emotional incapacity” lacking the characteristic of “serious difficulty in controlling behavior” is not relevant in proving the presence of the kind of statutorily-defined “behavioral abnormality” required for someone to be lawfully adjudicated as a sexually violent predator in the state of Texas.]

2.  Court of Appeals, Ninth District of Texas at Beaumont, NO. 09-05-493 CV, IN RE COMMITMENT OF ENRIQUE MARTINEZ, On Appeal from the 410th District Court, Montgomery County, Texas, Trial Cause No. 03-09-06909 CV; Opinion Delivered in 2006.

[Annotation:  In the case of Enrique Martinez, the Court of Appeals, Ninth District of Texas at Beaumont continues to defer to the U. S. Supreme Court Case of Kansas v. Crane by directly quoting Kansas v. Crane in its opinion, which states the following:  “‘[P]roof of serious difficulty in controlling behavior’ is required in order to civilly commit a defendant.” And “The inability to control behavior ‘must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.” 

Thus, as in the case of Daniel Amalguer, the Court of Appeals, Ninth District of Texas’s opinion issued in the case of Enrique Martinez also makes it perfectly clear that the Ninth District Texas Court of Appeals considers the opinions issued in Kansas v. Hendricks and Kansas v. Crane to be binding on adjudications of sexually violent predator status in the state of Texas.]

3.  164 S.W.3d 637 IN RE: COMMITMENT OF FISHER, SUPREME COURT OF TEXAS, No. 04-0112, In re Commitment of Michael Fisher, On Petition for Review from the Court of Appeals for the Thirteenth District of Texas, Wallace B. Jefferson, Chief Justice, Opinion delivered May 20, 2005.

[Annotation:  In the case of Michael James Fisher, the Supreme Court of Texas issued its opinion that an evaluee does not have to be competent to be civilly committed as a “sexually violent predator.” 

            By citing Kansas v. Hendricks over and over, the Texas Supreme Court makes it perfectly clear in the case of Michael James Fisher that Supreme Court of Texas considers Kansas v. Hendricks to be binding on adjudications of sexually violent predator status in the state of Texas.]

4.  U.S. Supreme Court: Kansas v. Hendricks, Syllabus, No. 95-1649, Decided June 23, 1997

[Annotation:  In addition the citations by the Texas Ninth District Court of Appeals and Texas Supreme Court, the case of Kansas v. Hendricks is noteworthy because it makes clear that any “nomenclature” is acceptable as long as terms used are “terms of a medical nature.”]

5.  U.S. Supreme Court:  Kansas v. Crane, Syllabus, No. 00-957, Decided January 22, 2002

[Annotation:  As of May, 2011, the case of Kansas v. Crane remains the highest authority for legally constraining the nature and degree of volitional incapacity that must be present as an attribute of the statutorily-defined “behavioral abnormality” in Texas and for civil commitment under SVP laws elsewhere.  The case of Kansas v. Crane makes the following points in its Syllabus:  1. (Page 407):  There must be “proof of serious difficulty in controlling behavior.”;  2.  (Page 410):  For an individual to be civilly committed, it must be “difficult, if not impossible, for the person to control his behavior.”;  3.  (Page 412): For an individual to be civilly committed, a “lack-of-control determination is necessary.”;  4.  (Page 413):  The inability to control behavior must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the “dangerous but typical recidivist” convicted in an ordinary criminal case.

6.  Washington State Sexually Violent Predator Statute

[Annotation:  Although not directly binding in the state of Texas, the Washington SVP Statutes provides a reasonable definition of “likely” by statutorily defining “likely” to mean more likely than not, meaning greater than 50% probability of occurrence.  Since the Texas SVP statute does not define the word “likely,” experts conducting assessments under the Texas SVP Statute, should engage in careful consideration of how to transparently and clearly define “likely” in their assessments.  Consequently, many experts in Texas and elsewhere have concluded that the Washington state definition of “likely” is reasonable and have thus adopted the Washington state statutory definition of “likely” in assessments in jurisdictions where “likely” has not been statutorily defined, such as in Texas.

7.  U.S. Supreme Court: Addington v. Texas, Syllabus, 441 U.S. 418 (1979), No. 77-5992, Decided April 30, 1979

[Annotation:  The 1979 U. S. Supreme Court Case of Addington v. Texas determined that civil commitments can occur only when the likelihood of dangerousness of a committed individual is equal to or greater than the probability associated with a “clear and convincing” standard of proof (Page 441 of Syllabus).  The “clear and convincing” standard is generally understood to be a higher standard of proof than “preponderance of evidence,” which is understood to be greater than 50%.  Consequently, it would appear that Addington v. Texas creates a legal constraint in Texas and elsewhere in which the word “likely” (when used for the purposes of civil commitment) must always refer to a probability greater than 50%.  However, how much greater remains unclear.

Moreover, the opinion of Addington v. Texas states:  “Given the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous.” (Page 441 of Syllabus.)]

8.  U.S. Supreme Court: Daubert v. Merrell Dow Pharmaceuticals, Inc., Syllabus, 509 U.S. 579 (1993), Decided June 23, 1993

General Assessment Methodology

The general assessment methodology that I utilize is that described by Richard Rogers, Ph.D. and Rebecca Jackson, Ph.D., in 2005, in Volume 33, Number 4, page 525, of the Journal of the American Academy of Psychiatry and the Law.  Rogers and Jackson describe the following 5 necessary steps for sexually violent predator evaluations:

1.  Does the defendant have the requisite clinical condition (e.g. mental abnormality, mental disorder, or personality disorder), as mandated by the particular jurisdiction?

            2.  If yes, does the defendant have volitional impairment?

3.  If yes, does the volitional impairment directly arise from the clinical condition?

4.  If yes, does the defendant have the statutorily defined likelihood of sexual violence?

5.  If yes, is that likelihood of sexual violence directly the result of volitional impairment?

            Each of these 5 steps described by Rogers and Jackson must be answered in the affirmative for a defendant to be lawfully adjudicated as a sexually violent predator.

Texas-Specific Assessment Methodology

Consistent with the general steps as described by Rogers and Jackson, a more-detailed, Texas-specific methodology can be used.  This Texas-specific methodology takes into account the specific definitions and requirements set forth in the Texas Sexually Violent Predator Law; and is consistent with constraints placed on experts’ interpretation of that law by Texas Appeals Courts, the Texas Supreme Court, and the U.S. Supreme Court.  The Texas-specific assessment methodology includes the following 9 steps:

1.  Is there evidence that the evaluee has engaged in repeated “sexually violent offenses?”

(Note:  “sexually violent offense” is defined by the Texas SVP statute to include only certain types of sexual behaviors.  Moreover, as numerous exonerations by DNA evidence, especially in Texas, will attest, past convictions of sexually violent offenses are highly suggestive, but by no means proof of actual guilt of past “sexually violent offenses.”  Consequently, in cases where an evaluee contests sexually related charges, regardless of whether that evaluee was convicted or not, a de novo examination of available evidence by experts is necessary so that these experts can come to their own independent opinion of what actual behaviors have occurred, thereby allowing experts to make the most accurate probabilistic statements about future likelihood of  engaging in “a predatory act of sexual violence.”)

2.  If Yes, were any of these sexually violent offenses “predatory” in nature? 

(“Predatory act of sexual violence” is statutorily defined as “for the primary purpose of victimization.”  Such a purpose stands in contrast to acts of sexual violence whereby predatory intent is for a “secondary” or lesser purpose or where intent is for a primary purpose other than “victimization,” such as sexual gratification.

3.   If Yes, was any “predatory act of sexual violence” caused by a “serious difficulty in controlling behavior?”

(“Proof of serious difficulty in controlling behavior” is the exact wording from the U. S. Supreme Court decision in the case of Crane, which has been cited extensively by the Texas Appeals and Texas Supreme Court and is recognized by these courts as binding in Texas during adjudications of “sexually violent predator” status.)

4.  If Yes, was any “predatory act of sexual violence” which was caused by a “serious difficulty in controlling behavior” distinct from the willful, ego-syntonic acts committed by “typical but dangerous sexual offenders?”

(The Texas Statute and case law from Texas and the U.S. Supreme Court make it very clear the group of individuals lawfully adjudicatable as “sexually violent predators” are a distinct group from others who would engage in dangerous sexual recidivism.  That is, the mere fact of having a high probability of engaging in acts of dangerous sexual recidivism is not sufficient to demonstrate the presence of the statutorily-defined “behavior abnormality,” consistent with being adjudicated as a “sexually violent predator.”)

5.  If Yes, is this “serious difficulty in controlling behavior” the direct result of a “congenital or acquired condition?”

(A “congenital” or “acquired” condition is different from a “temporary” condition, such as drug or alcohol intoxication, or a reversible altered state of mind, such as a delirium that might be caused by are reversible metabolic disturbance, treatable infection, or treatable cancer.

6.  If Yes, is the “serious difficulty in controlling behavior” caused by the “congenital or acquired condition” “likely” to result in commission of “a predatory act of sexual violence” in the future?

(Although the Texas SVP statute does not explicitly define “likely,” I understand “likely” in the Texas SVP statute to minimally mean a probability greater than 50%.  Moreover, this “more-likely-than not” standard is consistent with the statutorily defined meaning of “likely” in the prototype of all sexually violent predator laws, namely that of Washington state.  Consequently, defining “likely” as “more likely than not” is a common standard among experts who conduct SVP evaluations, regardless of the state in which that evaluation has occurred.

Moreover, the 1979 U.S. Supreme Court case of Addington v. Texas is informative and constraining on how the word “likely” can be interpreted.  Specifically, the decision of Addington v. Texas required the likelihood of dangerousness to be equal to or greater than the probability associated with a “clear and convincing” standard of proof for a civil commitment to be constitutional.  The “clear and convincing” standard of proof is understood to be a greater standard of proof than “preponderance of evidence,” which is understood to be greater than 50% probability, meaning “more likely than not.”)

(Note:  Like Step 5, Steps 7 and 9 below also address the issue of likelihood, and thus might be considered redundant with Step 5.  However, since it has become conventional for some experts in Texas to place considerable emphasis on three specific instruments (the Static-99-R, the MnSOST-R, and the PCL-R) steps 7-9 are included in the Texas-specific assessment process so that the results and degree of relevance of each of these instruments are specifically and saliently considered.)

7.  If actuarial instruments (such as the Static-99-R or MnSOST-R) have been utilized to arrive at an estimate or probability of future behaviors, are such estimates or probabilities in any way informative or indicative of a future likelihood of occurrence of the specific type of sexual violence as described by the Texas SVP statute, namely “a predatory act of sexual violence” caused by a “serious difficulty in controlling behavior” which in turn, was specifically caused by a “congenital or acquired condition?”

            8.  Has “testing for psychopathy” occurred for the evaluee?

(The Texas SVP statute requires “testing for psychopathy” to occur, and to be among the other considerations on which the clinical assessment is based.)

9.  If Yes, do the results of the psychopathy testing in any way indicate the presence of the specific statutorily-defined “behavioral abnormality” or in any way indicate a likelihood of engaging in "a predatory act of sexual violence” caused by a “serious difficulty in controlling behavior” which in turn, was specifically caused by a “congenital or acquired condition?”