Russell v. Davis, Director TDCJ-CID

Filing 43

OPINION AND ORDER ON REMAND: Petitioner's petition for writ of habeas corpus is GRANTED as to Petitioner's convictions under §§ 841.085 and 841.082(a)(4), which are void for vagueness. Therefore, the convictions and sentences fo r the offenses resulting from a violation of § 841.082(a)(4) are VACATED. In all other respects, the petition for writ of habeas corpus is DENIED. To the extent the petition is denied, a certificate of appealability will not be issued. (Ordered by Senior Judge Terry R Means on 11/8/2017) (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
EDWARD LYNN RUSSELL,
Petitioner,
V.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Division,
Respondent.

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Civil Action No. 4:14-CV-792-Y

OPINION AND ORDER ON REMAND
In 2008, petitioner Edward Lynn Russell was adjudicated a
sexually violent predator in Tarrant County, Texas, under prior
provisions of Chapter 841 of the Texas Health and Safety Code and
ordered to civil commitment. (Reporter’s R., vol. 6, State’s Ex. 1,
doc. 14-10.) Petitioner was later charged with violating multiple
requirements of his civil commitment, a third-degree felony, and
was found guilty by a jury on eleven such counts. (Clerk’s R. 15295, doc. 14-11.) The jury also found the enhancement paragraph in
the indictment true and assessed Petitioner’s punishment at 20
years’

confinement

on

each

count,

the

sentences

to

run

concurrently.
This Court previously denied Petitioner’s petition, but the
United States Court of Appeals for the Fifth Circuit remanded the
case for consideration of whether the versions of Texas Health &
Safety Code § 841.085(a) and § 841.082 applicable to Petitioner
violate the Due Process Clause of the United States Constitution

for vagueness. The Court is to make this determination under the
“clearly established federal law” set forth in the Supreme Court
decisions in Hill v. Colorado, 530 U.S. 703, 732 (2000); Grayned v.
City of Rockford, 408 U.S. 104, 108-09 (1972); and Kolender v.
Lawson, 461 U.S. 352, 358 (1983). (5th Cir. J. 3, doc. 41.)
I. Factual and Procedural History
To assist the reader, the Court reiterates the factual history
of the case as summarized by the Second District Court of Appeals
of Texas.
In February 2008, Russell agreed to a final judgment
identifying him as a sexually violent predator as defined
in health and safety code section 841.003 and ordering
him to be civilly committed for outpatient treatment and
supervision in accordance with chapter 841 of the health
and safety code. In addition to addressing Russell’s
treatment and supervision, the order of civil commitment
required him to “reside in supervised housing at a Texas
residential facility under contract with the Council on
Sex Offender Treatment (Council)[1] or at another location
or facility approved by the Council”; to “submit to
tracking under a global positioning satellite (GPS)
monitor or other monitoring system provided”; to
“exactingly participate in and comply with the specific
course of treatment provided by the Council”; and to
“comply with all written requirements of the Council and
case manager.” The commitment order also contained the
following notice: “EDWARD RUSSELL shall strictly comply

1

Under the prior statutory scheme, the Council on Sex Offender Treatment
(the Council) was responsible for “providing appropriate and necessary treatment
and supervision through the case management system.” The Council was later
renamed as the Office of Violent Sex Offender Management or “OVSOM.” See Act of
May 28, 2003, 78th Leg., R.S., ch. 347, § 17, 2003 Tex. Gen. Laws 1505, 1515
(amended by Act. of May 23, 2011, 82nd Leg., R.S., ch. 1201, § 3, 2011 Tex. Gen.
Laws 3197, 3199. And, since that time, the Council was again renamed as the Texas
Civil Commitment Office or “the Office.” See TEX. HEALTH & SAFETY CODE ANN. §
841.002(4) (West 2017). To avoid confusion, the Court refers to the state entity
as the Council in this opinion.

2

with the commitment requirements of Health & Safety Code
§ 841.082 and this Order of Commitment, or will be
charged with a felony of the third degree, which may be
enhanced to a more severe punishment.”
At the outset of his commitment and treatment,
Russell reviewed and agreed to abide by all of the rules
and requirements contained in the following documents:
“Civil Commitment Requirements: Standard Requirements of
the Treatment Program”; “Council on Sex Offender
Treatment Supervision Requirements”; “Council on Sex
Offender Treatment Additional Supervision Requirements”;
and “Council on Sex Offender Treatment Global Positioning
Tracking Service Requirements for MTD.” In 2009 and 2010,
Russell signed additional documents evidencing his
agreement to abide by various requirements of his commitment.
During the course of his outpatient treatment and
supervision, Russell failed to comply with numerous
written treatment requirements. Consequently, in May
2010, he was unsuccessfully discharged early from the sex
offender treatment program. Russell was later indicted on
eleven counts of violating a civil commitment requirement
as a sexually violent predator.[2] At trial, Russell’s
2

Specifically, the indictment alleged that Petitioner violated his civil
commitment requirements by:
failing to participate and comply with a specific course of
treatment by failing to follow the written standard requirements of
the treatment plan of the OVSOM by failing to keep his thought
journal (three counts);
failing to participate and comply with a specific course of
treatment by failing to follow the written standard requirements of
the treatment plan of the OVSOM by failing to complete a “high risk”
plan and “what if” assignment (one count);
failing to abide by the written global positioning tracking
service requirements . . . provided by the case manager by
separating from a miniature tracking device (two counts);
failing to participate in and comply with a specific course of
treatment by failing to follow the written standard requirements of
the treatment plan of the OVSOM by engaging in anonymous or casual
sex (two counts);
failing to participate in and comply with a specific course of
treatment determined by the OVSOM by failing to follow the written
standard requirements of the treatment plan of the OVSOM by engaging
in deviant masturbation as set out in the treatment behavior
contract requirements by masturbating to the thoughts of a male

3

former case managers, Wesley Griffin and Lawrence
Daniels, testified about Russell’s violations of his
treatment requirements. After convicting Russell on each
count, and upon his plea of true to the repeat offender
notice, the jury assessed Russell’s punishment at twenty
years’ confinement and a $10,000 fine for each count.
The trial court sentenced Russell accordingly.
(Mem. Op. 2-4, doc. 14-4 (emphasis in original).)
Petitioner asserts that the version of chapter 841 under which
he was convicted is unconstitutional on its face and as applied
“for allowing private citizens, appointed by § 841, unfetterd power
to deny a specific group of U.S. citizens their constitutionally
protected rights by setting rules and regulations doing so, that
are enforced by § 841 by threat of punishment.” (Pet’r’s Mem. 1,
doc. 4.) According to Petitioner,
“section 841 of the Texas Health and Safty [sic] Code
gives the Office, their case workers, and their treatment
providers, all of whom are private citizens without any
formal education in constitutional law, the authority to
decide what is appropriate and necessary treatment,
supervision, and standards of care (.007 and .141(b)),
without providing them with written guidelines or
providing safeguards to prevent arbitrary, discriminate
[sic], and oppressive rules that, upon violation of these
child (one count);
failing to participate in and comply with a specific course of
treatment by failing to follow the written standard requirements of
the treatment plan of the OVSOM by failing to take prescribed
medication as directed by the attending physician or psychiatrist
(one count); and
failing to participate in and comply with a specific course of
treatment by failing to follow the written additional supervision
requirements of the treatment plan of the OVSOM by communicating
with a halfway house resident in a manner considered to be obscene,
threatening, or harassing (one count).
(Adm R., Clerk’s R. 2-5, doc. 14-11.)

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rules, constitute a criminal offense (841.085).
(Id. at 4.) Petitioner raised a vagueness and overbreadth claim in
his state habeas application, but the Texas Court of Criminal
Appeals denied the application without written order. (State Habeas
R. 7-8 & Action Taken, docs. 14-18 & 14-19.)
II. Discussion
Under

the

Antiterrorism

and

Effective

Death

Penalty

Act

(AEDPA), a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a state court will not be granted with
respect to any claim that was adjudicated on the merits in state
court proceedings unless the petitioner shows that the prior
adjudication: (1) resulted in a decision that was contrary to, or
involved

an

unreasonable

application

of,

clearly

established

federal law as determined by the United States Supreme Court, or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the state court. See 28 U.S.C. § 2254(d). Therefore, under the
first prong, applicable to this case, this Court may grant habeas
relief only if the state court’s adjudication of petitioner’s claim
resulted in a decision that was contrary to, or involved an
unreasonable application of, the law set forth in Hill, Grayned,
and Kolender.
Former § 841.085 of the Texas Health and Safety Code provides
that

“[a]

person

commits

an

offense
5

if,

after

having

been

adjudicated and civilly committed as a sexually violent predator
under

this

chapter,

the

person

violates

a

civil

commitment

requirement imposed under Section 841.082.” Act of May 27, 2007,
80th Leg., R.S., ch. 1219, § 8, 2007 Tex. Gen. Laws 4115, 4117.
Section 841.082 provided,
(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 in a Texas
residential facility under contract with the
council or at another location of facility
approved by the council;
(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 a specific course of
treatment;
(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.
(6) prohibiting the person from changing the
person’s residence;
(7) if determined appropriate by the judge,
establishing a child safety zone . . . ;

6

(8) requiring the person to notify the case
manager immediately but in any event within 24
hours of any change in the person’s status
that affects proper treatment and supervision,
including a change in the person’s physical
health or job status and including any
incarceration of the person; and
(9)
any
other
requirements
necessary by the judge.

determined

Act of May 19, 2005, 79th Leg., R.S., ch. 849, § 3, 2005 Tex. Gen.
Laws

2892,

2893-94.

Petitioner’s

claim

implicates

subsection

(a)(4), mandating participation and compliance with a specific
course of treatment.
The Fifth Amendment provides that “[n]o person shall . . . be
deprived of life, liberty, or property, without due process of
law.”

U.S.

CONST.

amend.

V.

“[T]he

Government

violates

this

guarantee by taking away someone’s life, liberty, or property under
a criminal law so vague that it fails to give ordinary people fair
notice of the conduct it punishes, or so standardless that it
invites arbitrary enforcement.” Johnson v. United States, 135 S.
Ct. 2551, 2556 (2015) (citing Kolender, 461 U.S. at 357-58). See
also Hill, 530 U.S. at 732 (providing a statute is impermissibly
vague “if it fails to provide a person of ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits” or
“if it authorizes or even encourages arbitrary and discriminatory
enforcement”); Grayned, 408 U.S. 108-09 (stating “we insist that
laws

give

the

person

of

ordinary

7

intelligence

a

reasonable

opportunity

to

know

what

is

prohibited,

so

that

he

may

act

accordingly” and “provide explicit standards for those who apply
them”); Kolender, 461 U.S. at 357-58 (providing “the void-forvagueness

doctrine

requires

that

a

penal

statute

define

the

criminal offense with sufficient definiteness that ordinary people
can understand what conduct is prohibited and in a matter that does
not encourage arbitrary and discriminatory enforcement”).
Although § 841.082(a)(1), (2), (3), (5), (6), (7), and (8),
provide clearly defined requirements reasonably related to the
purpose of the statutory scheme and § 841.082(a)(9) allows the
judge

to

impose

requirements

as

necessary,

§

841.082(a)(4),

“requiring the person’s participation in and compliance with a
specific course of treatment,” is ambiguous. The phrase “specific
course of treatment” is not defined in the statutory scheme and
does not provide an ordinary person fair notice of what conduct it
punishes. See Kolender, 461 U.S. at 361. How would an ordinary
person go about deciding what a “specific course of treatment”
involves or understand that failing to keep a “thought journal,”
failing to complete a “high risk plan” or “what if” assignment,
engaging in anonymous or casual sex, or masturbating to the
thoughts of a male child is potentially unlawful? Clearly, the
“specific course of treatment” for any person must be decided by
professionals specifically trained in the area and may be subject
to change over time. Thus, the problem is not what the provision is

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designed to prohibit, but what it actually subjects to criminal
penalty without notice.
Therefore, the Court concludes that prior § 841.085 and §
841.082(4)

of

the

Texas

Health

and

Safety

Code

under

which

Petitioner was convicted are overly vague. Accordingly, the state
court’s

denial

of

Petitioner’s

claim

is

contrary

to

or

an

unreasonable application of Hill, Grayned, and Kolender. This
conclusion

is

further

reinforced

by

the

state

legislature’s

subsequent revision of § 841.085 to decriminalize the failure to
abide by a similar provision in the revised statute “requiring the
person’s participation in and compliance with the sex offender
treatment program provided by the office and compliance with all
written requirements imposed by the office.” See TEX. HEALTH & SAFETY
CODE ANN. §§ 841.082(a)(3), 841.085 (West 2017).
For the reasons discussed, Petitioner’s petition for writ of
habeas corpus is GRANTED as to Petitioner’s convictions under §§
841.085

and

841.082(a)(4),

which

are

void

for

vagueness.3

Therefore, the convictions and sentences for the offenses resulting
from a violation of § 841.082(a)(4) are VACATED. In all other
respects, the petition for writ of habeas corpus is DENIED.
To the extent the petition is denied, a certificate of
appealability will not be issued. Such a certificate may issue
3

Because the Court finds the relevant provisions of the statute
impermissibly vague, it is not necessary to address whether the Council was given
too broad a discretion in determining the conduct proscribed or required to
satisfy § 841.082(4).

9

“only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Under this
standard, when a district court denies habeas relief by rejecting
constitutional

claims

on

their

merits,

‘the

petitioner

must

demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.’”
McGowen v. Thaler, 675 F.3d 482, 498 (5th Cir. 2012) (quoting Slack
v. McDaniel, 529 U.S. 473, 484 (2000)). Petitioner has not made
such a showing. Therefore, a certificate of appealability should
not issue.
SIGNED November 8, 2017.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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