In Re Vernon Lee Asbell v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-22-00132-CV
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IN RE VERNON LEE ASBELL

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Original Proceeding
435th District Court of Montgomery County, Texas
Trial Cause No. 12-09-09657-CV
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MEMORANDUM OPINION

Vernon Lee Asbell filed a notice of appeal from an order denying an

unauthorized petition for release from civil commitment. After Asbell perfected his

appeal, this Court joined other courts of appeals in holding that an order denying an

unauthorized petition for release from civil commitment does not function as a final

judgment and is not appealable as a final judgment. See In re Commitment of Welsh,

661 S.W.3d 861, 867 (Tex. App.—Beaumont 2022, pet. denied). After we issued

our opinion in Welsh, Asbell asked this Court to either reconsider our holding in

Welsh or consider the brief of the appellant as a petition for a writ of mandamus. See

In re Commitment of Renshaw, 672 S.W.3d 426, 428 (Tex. 2023) (directing appellate

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court to consider habeas corpus petition as a petition for a writ of mandamus, as

requested by the person attempting to challenge an order denying an unauthorized

petition for release). We have reviewed the parties’ briefs under the standard that

applies to mandamus petitions, and we conclude that the record supports the trial

court’s ruling.

In its order denying the unauthorized petition as frivolous, the trial court noted

that only three months before, the trial court had issued a biennial review order in

which it failed to find that Asbell’s behavioral abnormality had changed to the extent

that he was no longer likely to engage in a predatory act of sexual violence. Asbell

filed his unauthorized petition for release two days after the trial court signed the

biennial review order.

To support his unauthorized petition for release, Asbell relied upon a report

completed by a licensed psychologist on August 20, 2021, as part of the biennial

review of Asbell’s commitment. In that report, Dr. Stephen Thorne concluded in part

that Asbell “does not presently meet criteria as having a behavioral abnormality that

makes him likely to engage in a predatory act of sexual violence.” However, Dr.

Thorne’s report provides a caveat that weighs against a finding that there is probable

cause to believe that Asbell no longer has a behavioral abnormality that makes him

likely to engage in a predatory act of sexual violence. In his report, Dr. Thorne notes

that Asbell’s current treatment provider described Asbell’s recent Penile

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Plethysmograph (PPG) evaluation as including a low processing score that gave the

current results questionable validity. According to Dr. Thorne:

That being said, it does also seem relevant to note that, if (due to the
previously referenced concerns) a PPG examination is indeed re-
administered, any deviant findings could potentially result in a revision
to the aforementioned opinion regarding whether or not Mr. Asbell
continues to meet criteria as having a behavioral abnormality that
makes him likely to engage in a predatory act of sexual violence.

Asbell’s current treatment provider and his case manager each recognized and

praised Asbell’s progress in sexual offender treatment but both providers

recommended for now that Asbell remain in the Civil Commitment Program. The

case manager recommended that all previous conditions remain in effect, while the

treatment provider recommended that Asbell remain at the Texas Civil Commitment

Center with a focus on reintegration into the community.

Asbell argues the trial court abused its discretion by applying biennial review

standards to his unauthorized petition for release. The version of section 841.123 of

the Health and Safety Code in effect when the trial court ruled on Asbell’s petition

provided that when a person committed under Chapter 841 files an initial

unauthorized petition for release, “the judge shall deny without a hearing a petition

for release filed without the office’s authorization if the petition is frivolous[.]”1

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The Legislature amended section 841.123 in 2023. Under current law, the
trial court shall deny the unauthorized petition for release of the petition if the
petitioner has filed the petition before the 180th day after the date the trial court
signed a biennial review order, unless the trial court determines by a preponderance
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Asbell argues the trial court should have considered only whether the petition had

merit as a matter of fact and law, and not whether the evidence had been previously

considered in connection with the biennial review. He argues the uncontroverted

report prepared by Dr. Thorne as part of the biennial review process unequivocally

stated that Asbell had overcome his behavioral abnormality. Asbell contends his

unauthorized petition for release provided additional information showing he had

overcome his behavioral abnormality and that he had a job offer and a support

network upon his release from civil commitment. He argues the civil commitment

statute envisions a smooth transition from one tier to another to eventual release

based on progress in treatment in behavior. See Tex. Health & Safety Code Ann. §§

841.083-.124. The record reflects that Asbell had been participating in sex offender

treatment for eight years and for the most recent two years had successfully

participated in Tier Four of the five-tier SVP civil commitment program.

The relator bears the burden to provide the Court with a sufficient record to

establish his right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.

1992) (orig. proceeding). Although Asbell claims he provided additional

information the trial court did not consider in its biennial review, the record from the

of the evidence that the petitioner’s behavioral abnormality has changed to the extent
that the petitioner is no longer likely to engage in a predatory act of sexual violence.
See Act of May 17, 2023, 88th Leg., R.S., 2023 Tex. Sess. Law Servs. 758, 769-70
(effective September 1, 2023).
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biennial review is not part of the mandamus record. In discussing Asbell’s relevant

mitigating protective factors, Dr. Thorne in his biennial review report mentions that

Asbell has “healthy social support, and he does appear to at least have the capacity

to maintain what can be considered age-appropriate employment.” Thus, it appears

when it conducted the biennial review the trial court had before it evidence regarding

Asbell’s available employment prospects and social networks. Furthermore, the

purpose of the unauthorized petition for release is to determine whether the person’s

behavioral abnormality has changed to the extent that the petitioner is no longer

likely to engage in a predatory act of sexual violence. See Tex. Health & Safety Code

Ann. § 841.123. The biennial review involves a broader determination, that is

whether a requirement imposed on a committed person should be modified or

whether the person’s behavioral abnormality has changed to the extent that the

person is no longer likely to engage in a predatory act of sexual violence. See Tex.

Health & Safety Code Ann. § 841.102(c). Because the two procedures address

similar concerns, we reject Asbell’s argument that the trial court abused its discretion

by considering the results of Asbell’s recent biennial review in considering whether

a factfinder in a formal hearing must determine whether Asbell no longer suffers

from a behavioral abnormality that make him likely to commit a predatory act of

sexual violence.

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We may issue a writ of mandamus to remedy a clear abuse of discretion by

the trial court when the relator lacks an adequate remedy by appeal. See In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding);

Walker, 827 S.W.2d at 839-40. “An abuse of discretion occurs when a trial court’s

ruling is arbitrary and unreasonable, made without regard for guiding legal principles

or supporting evidence.” In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712

(Tex. 2016) (orig. proceeding). A trial court also abuses its discretion if it fails to

correctly analyze or apply the law, because a trial court has no discretion in

determining what the law is or applying it to the facts. See In re Prudential, 148

S.W.3d at 135. On the record before us, we conclude the relator has not shown that

the trial court abused its discretion. Accordingly, we deny the petition for a writ of

mandamus. See Tex. R. App. P. 52.8(a).

PETITION DENIED.

PER CURIAM

Submitted on January 29, 2024
Opinion Delivered February 22, 2024

Before Golemon, C.J., Horton and Wright, JJ.

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