Vandyke v. State

538 S.W.3d 561

Roger Dale VANDYKE, Appellant

v.The STATE of Texas

NO. PD-0283-16

Court of Criminal Appeals of Texas.

Filed: December 20, 2017

Scott Pawgan, Conroe, TX, for Appellant.

Brent Chapell, Assistant District Attorney, Conroe, TX, Stacey Soule, Austin, TX, for The State.

Newell, J., delivered the opinion of the Court in which Keller, PJ., Hervey, Alcala, Richardson, Keel and Walker, JJ., joined.

In 2015 our Legislature passed Senate Bill 746, a bill that amended several provisions within the Civil Commitment of Sexually Violent Predators Act contained within the Health and Safety Code. The amendments removed a provision that had made it a criminal offense for a sexually violent predator who had been civilly committed to fail to comply with the terms of his sex offender treatment. Furthermore, the Legislature included a savings clause in S.B. 746 that made the legislation apply to anyone who had been convicted of the offense of violating the terms of his civil commitment and whose direct appeal of that criminal conviction was pending at the time the legislation became effective.¹ When Governor Abbott signed S.B. 746 into law, it became effective immediately. Appellant's direct appeal of his criminal conviction for violating the terms of his civil commitment was pending at that time.

After S.B. 746 became effective, Appellant filed a supplemental brief with the court of appeals arguing that his conviction was not a final conviction and it should, therefore, be reversed because the amendment to Section 841.085 decriminalized his conduct. The State agreed that this savings clause applies to Appellant because the statute became effective when Appellant's conviction was not yet final due to the pendency of his case on appeal. However, the State argued that the savings clause in S.B. 746 violated the Separation of Powers Clause of the Texas Constitution because it usurped the governor's power to grant clemency.² The court of appeals affirmed his conviction, holding that the savings clause in S.B. 746 violates the Separation of Powers Clause of the Texas Constitution. We granted Appellant's petition for discretionary review on the sole issue of whether the Court of Appeals erred in holding that the savings clause in S.B. 746 usurped the governor's clemency power. We reverse and vacate the judgment.

I. Case History

This case presents a constitutional question regarding the powers of the Executive and Legislative branches of our government. The underlying facts of the case are not determinative; however the time line of events in this case is important. In January 2011, the trial court determined that Appellant was a sexually violent predator, as defined in Texas Health and Safety Code § 841.003,³ and civilly committed him in accordance with Texas Health and Safety Code § 841.081.⁴ The court ordered Appellant to comply with the provisions of Health and Safety Code § 841.082, the Agreed Final Judgment, and the Order of Commitment.

At the time of the offense, Health and Safety Code § 841.082(a)(4) required Appellant to participate in and comply with a course of treatment provided by the Office of Violent Sexual Offender Management (OVSOM). Between July 17, 2011, and March 21, 2013, Appellant failed to make progress in the treatment and violated several rules and requirements of his treatment program. On March 21, 2013, the OVSOM discharged Appellant from the Outpatient Sexually Violent Predator Treatment Program due to his unsuccessful progress in treatment. His discharge constituted a failure to comply with his course of treatment, as required by the then existing version of Health and Safety Code § 841.082(a)(4).

In June 2013, a grand jury indicted Appellant for violating Health and Safety Code § 841.082(a)(4). The State predicated the indictment on Health and Safety Code § 841.085(a), which, at the time, permitted prosecution for any violation of Health and Safety Code § 841.082(a). Appellant filed a pre-trial writ of habeas corpus and motion to quash and dismiss, arguing that the relevant Health and Safety Code provisions were unconstitutional.⁵ The trial court denied the writ of habeas corpus and motion. On March 20, 2014, Appellant pleaded guilty to the offense charged and true to the enhancement paragraphs; the court assessed punishment at imprisonment for twenty-five years. Appellant filed an appeal with the Ninth Court of Appeals on March 17, 2015, raising the same arguments he made in his pre-trial writ of habeas corpus and motion.

While Appellant's appeal was pending, S.B. 746 was introduced in the Legislature. The bill proposed amendments to the Civil Commitment of Sexually Violent Predators Act contained within the Health and Safety Code. The amendments were designed to address "the growing crisis of the civil commitment of sexually violent predators program that could result in a major threat to the public safety in Texas."⁶ Specifically, the Legislature was concerned with mismanagement of the OVSOM which had led to financial strain on the civil commitment program and threats by the vendors who housed civilly committed sexual violent predators that they would no longer house them.⁷

To address this crisis, the amendments transferred authority over the civil commitment program to the Texas Civil Commitment Office.⁸ The amendments also created a structure for the civil commitment program by implementing a tiered program and guidelines dictating how sexually violent predators would move through the tiers.⁹ Based on the guidelines, sexually violent predators could move from a higher level of restriction to a lower level of restriction, or vice versa, based on their behavior and performance.¹⁰

In conjunction with the tiered system to better monitor sexually violent predators throughout their civil commitment, the amendments also removed the failure to participate in and comply with the proscribed sex offender treatment program from the list of criminal offenses sexually violent predators are subject to under Health and Safety Code § 841.085. In effect, the Legislature made the difficult policy determination that the new tiered program would be better suited than criminal prosecution to address lack of participation in and compliance with sex offender treatment by those who had been civilly committed. In addition, S.B. 746 contained a savings provision instructing that the amendments were to apply to offenses "committed before, on, or after the amendment's effective date, except that a final conviction for an offense under that section that exists on the effective date of this Act remains unaffected by this Act."¹¹ Due to the stated important public safety concerns associated with S.B. 746, the Legislature and Governor Abbott determined that the amendments should be implemented as soon as the bill was signed by Governor Abbott. Governor Abbott signed S.B. 746 on June 17, 2015, and the amendments immediately became effective. This occurred while Appellant's case was pending on appeal and before his conviction became final.

After S.B. 746 became effective, Appellant filed a supplemental brief with the Court of Appeals, arguing that the amended Health and Safety Code § 841.085 applied to his case because his appeal was pending as of June 17, 2015, so his conviction was not final. Further, if the amendments applied to him then his conviction should be reversed because his conduct no longer constituted a criminal offense. The Court of Appeals held that the amended sections of the Health and Safety Code did apply to the Appellant because he did not have a "final conviction" as defined by this Court.¹² However, the Court affirmed his conviction holding that the application of the amended Section 841.085 to pending convictions usurps the governor's clemency power and thus violates Article II, sec. 1 of the Texas Constitution, the Separation of Powers Clause.¹³

II. Analysis

Before addressing the contested issue in this case, we address preliminary issues which the State and Appellant, and this Court, after independent examination, agree on.¹⁴ In asserting that the amendments decriminalize Appellant's conduct, both parties rely on the plain language of the amendments. Health and Safety Code §§ 841.082 and 841.085 were amended as follows:

SECTION 13. Section 841.082(a)

(a) Before entering an order directing a person's [outpatient] civil commitment, the judge shall impose on the person requirements necessary to ensure the person's compliance with treatment and supervision and to protect the community. The requirements shall include:

(1) requiring the person to reside where instructed [in a Texas residential facility under contract with the office or at another location or facility approved] by the office;

(2) prohibiting the person's contact with a victim [or potential victim] of the person;

(3) [prohibiting the person's possession or use of alcohol, inhalants, or a controlled substance;

[ (4) ] requiring the person's participation in and compliance with the sex offender treatment program [a specific course of treatment] provided by the office and compliance with all written requirements imposed by the [case manager or otherwise by the] office;

(4) [ (5) ] requiring the person to:

(A) submit to tracking under a particular type of tracking service and to any other appropriate supervision; and

(B) refrain from tampering with, altering, modifying, obstructing, or manipulating the tracking equipment; and

(5) [ (6) ] prohibiting the person from [changing the person's residence without prior authorization from the judge and from] leaving the state without [that] prior authorization from the office

[;[ (7)if determined appropriate by the judge, establishing a child safety zone in the same manner as a child safety zone is established by a judge under Section 13B, Article 42.12, Code of Criminal Procedure, and requiring the person to comply with requirements related to the safety zone; and

[ (8)any other requirements determined necessary by the

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