BLACK v. MCLANE (2021)

ORDER ON MOTION FOR REHEARING AND GRANTING MOTION TO WITHDRAW

By opinion and judgment dated March 23, 2021, this court affirmed the trial court's dismissal of Stephen Patrick Black's suit challenging the constitutionality of section 841.082(a)(4)(A) of the Texas Health and Safety Code which requires a person who has been civilly committed to submit to tracking under certain circumstances.¹ In doing so, this court interpreted Black's complaint as a request for modification of his commitment requirements, which he failed to file in the committing court as required by section 841.082(e) of the Code. Black's complaint was resolved against him on non-constitutional grounds. See In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003) (recognizing that courts should only decide constitutional questions when issues cannot be resolved on non-constitutional grounds).

Pending before us is Black's pro se motion for rehearing in which he presents two issues asserting this court erred in (1) declining to consider his issue challenging the constitutionality of the statute in question and (2) deciding the issue on non-constitutional grounds. Pursuant to this court's request, Appellee, Marsha McLane, filed a response in which she (1) questions Black's self-representation in the rehearing phase without his appellate counsels' withdrawal and (2) concurs with this court's resolution of the appeal on non-constitutional grounds. Remaining convinced that our prior opinion correctly disposed of Black's issue, we deny the motion for rehearing with these additional comments.

 Pro Se Motion for Rehearing and Pro Bono Counsels' Motion to Withdraw

Black was represented pro bono by two attorneys from Thompson & Knight LLP. The day after McLane filed her response to Black's motion for rehearing questioning his pro se status, the attorneys filed an unopposed motion to withdraw. According to the motion, the original engagement terminated following the issuance of this court's opinion on the merits of Black's appeal and any further representation required a separate agreement to extend the representation. Black's pro se filing implies he has no objection to the motion to withdraw.

The motion to withdraw complies with Rule 6.5(a) and (b) of the Texas Rules of Appellate Procedure. Accordingly, we find the motion to withdraw should be granted.

 Disposition on Non-constitutional Grounds

As noted in our prior opinion, the Texas Civil Commitment Office developed a five-tiered treatment program to transition committed individuals from “total confinement” to less restrictive housing and supervision, and eventually, to release from civil commitment. See § 841.0831.² See Black v. McLane, No. 07-19-00241-CV, 2021 WL 1113150 at *2–3, 2021 Tex. App. LEXIS 2195 at *5 (Tex. App.—Amarillo March 23, 2021, no pet. h.) (mem. op.). The first tier is the most restrictive and the fifth tier the least restrictive. In re Bluitt, 605 S.W.3d 199, 201 (Tex. 2020). Tier one and tier two individuals are required by statute to wear a GPS tracking device. § 841.082(a)(4)(A)(ii), (iii). Black is presently in tier two treatment.

By his motion for rehearing, Black reiterates his position that even if he had filed his suit in the committing court challenging the constitutionality of the use of a tracking device while committed under tier two treatment, the relief he seeks would still have eluded him because the committing court would be bound by the statutory condition requiring him to wear a tracking device. While Black's logic is sound, as McLane points out, Black is not without a remedy. Under section 841.0834 of the Code, a committed person may file a petition with the committing court for transfer to less restrictive housing. See § 841.0834(b). Because Black's status is one level of treatment from less restrictive housing (level two to level three) that dispenses with the requirement of a tracking device, his appellate issue did not require resolution on constitutional grounds.

 Conclusion

Pro bono counsels' motion to withdraw is granted and Black's motion for rehearing is denied.

FOOTNOTES

1.   See Black v. McLane, No. 07-19-00241-CV, 2021 WL 1113150, 2021 Tex. App. LEXIS 2195 (Tex. App.—Amarillo March 23, 2021, no pet. h.) (mem. op.).

2.   Under a five-tiered treatment program, the Texas Civil Commitment Office evaluates a committed person's housing and movement through each tier “based on the person's behavior and progress in treatment.” In re Bluitt, 605 S.W.3d 199, 201 (Tex. 2020).

Per Curiam