Can a civilly committed sexually violent predator in Texas vote by mail?

Plain-English summary

The Lamb County Attorney asked the AG a narrow election-law question. Some men confined at the Texas Civil Commitment Center in Lamb County are there because a court adjudged them sexually violent predators and ordered civil commitment under chapter 841 of the Health and Safety Code. The county attorney wanted to know whether those who still qualify as voters may cast their ballots by mail under section 82.002(a) of the Election Code, the "disability" provision that lets a qualified voter vote early by mail when a sickness or physical condition would keep him from the polling place without a likelihood of needing personal assistance or injuring his health.

The AG first explained who at the Center can vote at all. The Texas Constitution lets the Legislature bar people convicted of a felony from voting, and the Legislature did, but it restored the vote to a person who has fully discharged the sentence (including incarceration, parole, or supervision) or been pardoned. Civil commitment as a sexually violent predator is not punishment and does not extend the underlying criminal sentence; the Texas Supreme Court described chapter 841 commitment as a civil matter aimed at public safety and treatment, not punishment. So a resident of the Center who has fully discharged his sentence and otherwise qualifies is an eligible voter.

On the mail-ballot question, the AG concluded a court would likely find these residents eligible to vote by mail. A sexually violent predator has been adjudged by a court to have a "behavioral abnormality," a condition affecting emotional or volitional capacity, and that likely counts as a "sickness" within section 82.002(a). Just as important, both the commitment orders and the Civil Commitment Office's rules sharply restrict residents' ability to travel away from the Center, and no resident had progressed far enough in the tiered treatment program to travel independently or be employed in the community. Those travel restrictions would likely prevent a resident from appearing at a polling place without assistance. Putting the two together, the AG concluded a court would likely hold that a chapter 841 resident of the Center is eligible to vote by mail under section 82.002(a).

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The requesting county attorney (as the opinion described it): The opinion answered the question put to it: a court would likely conclude that a qualified voter civilly committed under chapter 841 and residing at the Texas Civil Commitment Center is eligible to vote early by mail under section 82.002(a) of the Election Code.

Election administrators handling these ballots (as the opinion described it): The opinion treated the residents' court-ordered behavioral abnormality as likely satisfying the statute's "sickness" requirement and the Center's travel restrictions as likely satisfying the requirement that the condition prevent the voter from appearing at the polls without assistance, so a mail ballot application from such a resident would likely fit section 82.002(a).

Residents of the Center who can still vote (as the opinion described it): The opinion explained that civil commitment does not by itself strip the vote; a resident who fully discharged his criminal sentence and meets the other requirements remains an eligible voter under section 11.002(a) of the Election Code, and one limited to the Center would likely qualify to vote by mail rather than in person.

Common questions

Does being civilly committed as a sexually violent predator take away the right to vote?
Not by itself, under this opinion. The AG explained that chapter 841 commitment is civil, not an extension of a criminal sentence. A resident who has fully discharged his felony sentence and otherwise qualifies remains an eligible voter under section 11.002(a) of the Election Code.

Why would a court treat a "behavioral abnormality" as a sickness?
The opinion pointed to dictionary and Black's Law Dictionary definitions of "sickness" (an unsound condition; any disease of the body or mind) and to chapter 841's own definition of behavioral abnormality as a condition affecting a person's emotional or volitional capacity. On that basis the AG said a court would likely treat the abnormality as a "sickness" under section 82.002(a).

What made the travel restriction matter?
Section 82.002(a) requires that the condition prevent the voter from appearing at the polls without a likelihood of needing personal assistance. The opinion noted that commitment orders and the Civil Commitment Office's rules keep residents from traveling away from the Center on their own, and that residents are escorted by security staff when they must leave, so they could not appear at a polling place without assistance.

Did the opinion decide every resident can vote by mail?
No. It addressed residents who still qualify as voters and who reside at the Center. It expressly did not reach how residents who had progressed to the least restrictive tier (Tier Five), who no longer live at the Center, might be treated.

Is this a binding rule?
No. The opinion is careful to say a court "would likely conclude" these residents are eligible to vote by mail. An AG opinion predicts how a court would rule; it is persuasive authority, not a binding decision.

Background and statutory framework

Chapter 841 of the Health and Safety Code sets up civil commitment for sexually violent predators (Tex. Health & Safety Code §§ 841.001-.151). A "sexually violent predator" is a repeat sexually violent offender who suffers from a "behavioral abnormality" that makes the person likely to commit a predatory act of sexual violence (Tex. Health & Safety Code §§ 841.003(a), 841.002(2), 841.002(8)). The Department of Criminal Justice assesses a prisoner who may qualify, notifies the prosecuting attorney, and a judge or jury decides at trial whether the person is a sexually violent predator; if so, the judge commits the person for treatment and supervision coordinated by the Texas Civil Commitment Office, beginning on release from a secure correctional facility (Tex. Health & Safety Code §§ 841.021(c), .022(c), .023(a), 841.023(b), 841.041, 841.061, 841.081(a); Tex. Gov't Code §§ 420A.002(a), .010, .011(a)). The Office runs a tiered program at the Center, with Tier One being total confinement and later tiers less restrictive (Tex. Health & Safety Code §§ 841.0831, 841.0831(b), .0834).

Voter eligibility starts with the constitution. Article VI, section 1(a) lets the Legislature bar persons convicted of a felony from voting, subject to exceptions (Tex. Const. art. VI, § 1(a)). The Legislature restored the vote to a person who has fully discharged the sentence, including any incarceration, parole, or supervision, or who has been pardoned or otherwise released from the disability (Tex. Elec. Code § 11.002(a)(4)). Because chapter 841 commitment is civil and does not extend the criminal sentence, a Center resident who has fully discharged his sentence remains an eligible voter (Tex. Elec. Code § 11.002(a)). The opinion relied on In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005), describing chapter 841 commitment as civil and non-punitive, and pointed to chapter 841's stated public-safety purpose (Tex. Health & Safety Code § 841.001).

Section 82.002(a) of the Election Code permits a qualified voter to vote early by mail if the voter "has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health" (Tex. Elec. Code § 82.002(a)). The AG read the court-ordered behavioral abnormality as likely a "sickness," citing In re Commitment of Browning, 113 S.W.3d 851 (Tex. App.—Austin 2003, pet. denied), on the difficult-to-treat nature of these conditions, and read the Center's travel restrictions as likely preventing a resident from appearing at the polls without assistance. The opinion noted in a footnote that legislation pending at the time would have repealed section 82.002 and let any qualified voter vote by mail, but it analyzed the law as it then stood.

Citations

Statutes:

• Tex. Elec. Code §§ 82.002(a), 11.002(a), 11.002(a)(4)
• Tex. Const. art. VI, § 1(a)
• Tex. Health & Safety Code §§ 841.001-.151, 841.001, 841.002(2), 841.002(8), 841.003(a), 841.021(c), .022(c), .023(a), 841.023(b), 841.041, 841.061, 841.081(a), 841.0831, 841.0831(b), .0834
• Tex. Gov't Code §§ 420A.002(a), .010, .011(a)

Cases:

• In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005)
• In re Commitment of Browning, 113 S.W.3d 851 (Tex. App.—Austin 2003, pet. denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0149
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0149.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 18, 2017

The Honorable Scott A. Say Opinion No. KP-0149
Lamb County Attorney
100 6th Drive, Room 111 Re: Whether individuals civilly committed
Littlefield, Texas 79339 pursuant to chapter 841 of the Health and Safety
Code are eligible to vote by mail under section
82.002 of the Election Code (RQ-0142-KP)

Dear Mr. Say:

    You request an opinion concerning the application of subsection 82.002(a) of the Election Code. [1] That provision provides in relevant part:

            A qualified voter is eligible for early voting by mail if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health.

TEX. ELEC. CODE § 82.002(a) ("Disability"). Specifically, you ask whether individuals who have been civilly committed under chapter 841 of the Health and Safety Code qualify to vote by mail under this section. Request Letter at 3.

    Chapter 841 establishes a process for civil commitment of sexually violent predators. See TEX. HEALTH & SAFETY CODE §§ 841.001-.151. Texas law defines "sexually violent predator" as a person who: "(1) is a repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." Id. § 841.003(a). [2] A "behavioral abnormality" is "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." Id. § 841.002(2).

    If a person is serving a prison sentence for a sexually violent offense and may be a repeat sexually violent offender, the Texas Department of Criminal Justice ("TDCJ") conducts an assessment of the person. Id. §§ 841.021(c), .022(c), .023(a). If TDCJ determines the person suffers from a behavioral abnormality, it must give notice to the attorney representing the State for the county in which the person was most recently convicted of a sexually violent offense. Id. § 841.023(b). That attorney may then petition for a trial to determine whether the person is a sexually violent predator. Id. § 841.041. No later than the person's sentence discharge date, the judge must conduct a trial to determine whether the person is a sexually violent predator. Id. § 841.061. If the judge or jury determines that the person is a sexually violent predator, the judge shall commit the person for treatment and supervision coordinated by the Texas Civil Commitment Office ("TCCO"). [3] Id. § 841.081(a). Such "treatment and supervision begins on the person's release from a secure correctional facility and continues until 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." Id.

    Despite their civil commitment, you explain that some individuals adjudged as sexually violent predators may qualify as eligible voters under Texas law. Request Letter at 2. Article 6, section 1(a) of the Texas Constitution provides: "The following classes of persons shall not be allowed to vote in this State: ... (3) persons convicted of any felony, subject to such exceptions as the Legislature may make." TEX. CONST. art. VI, § 1(a). Pursuant to this authority to make exceptions, the Legislature authorized a person who has been finally convicted of a felony to vote if that person has: "(A) fully discharged the person's sentence, including any term of incarceration, parole, or supervision, or completed a period of probation ordered by any court; or (B) been pardoned or otherwise released from the resulting disability to vote." TEX. ELEC. CODE § 11.002(a)(4). When the TDCJ releases a person from a secure correctional facility into TCCO's care, that person may have fully discharged his or her sentence. Adjudication as a sexually violent predator and the consequent court-ordered commitment do not extend a person's criminal sentence. See In re Commitment of Fisher, 164 S.W.3d 637, 647, 653 (Tex. 2005) (explaining that a commitment proceeding under chapter 841 is not punitive, but instead is a civil matter designed to promote public safety and further treatment of sexually violent predators). Instead, in such situations, a court or jury determines that even though an individual served a sentence and is eligible for release, the individual poses a continuing risk to society due to the likelihood of repeated predatory behavior. See TEX. HEALTH & SAFETY CODE § 841.001. Thus, a sexually violent predator residing at the Center who fully discharged his or her sentence and meets the other statutory requirements qualifies as an eligible voter under section 11.002 of the Election Code. TEX. ELEC. CODE § 11.002(a).

    You advise that TCCO places all committed sexually violent predators in one central facility, called the Texas Civil Commitment Center (the "Center"), located in Lamb County. Request Letter at 1. [4] As required by state law, TCCO operates a tiered program at the Center for the supervision and treatment of sexually violent predators. [5] Tier One involves a "total confinement setting," and each subsequent tier is less restrictive. TCCO Brief at 3. However, none of the sexually violent predators residing at the Center have "progressed to the point where they are permitted to be employed in the community or travel independently in the community." Id. [6] They do not leave the Center unless "absolutely necessary," and in such circumstances, they are escorted at all times by two security staff members. Id.

    You ask whether sexually violent predators residing at the Center who qualify to vote may do so by mail under section 82.002(a) of the Election Code. [7] Request Letter at 3. In order to vote by mail under section 82.002(a), an eligible voter must have "a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health." TEX. ELEC. CODE § 82.002(a). The Legislature did not further define "sickness." However, common understandings of the term include an "unsound condition." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1157 (11th ed. 2005); AMERICAN HERITAGE COLLEGE DICTIONARY 1287 (4th ed. 2002); see also BLACK'S LAW DICTIONARY 1592 (10th ed. 2014) (defining "sickness" to include "[a]ny disease of the body or mind"). Sexually violent predators have been adjudged by a court to possess a behavioral abnormality, defined as a "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." TEX. HEALTH & SAFETY CODE § 841.002(2) (emphasis added); see also In re Commitment of Browning, 113 S.W.3d 851, 861 (Tex. App.—Austin, 2003, pet. denied) (explaining that one of the purposes of civil commitment is to provide treatment for sexually violent predators' "difficult-to-treat conditions"). Thus, a court would likely conclude that the behavioral abnormality of a sexually violent predator qualifies as a sickness under section 82.002(a) of the Election Code.

    Furthermore, a sexually violent predator's behavioral abnormality results in the imposition of travel restrictions that may prevent the sexually violent predator "from appearing at the polling place on election day." TEX. ELEC. CODE § 82.002(a). Both court orders of commitment and TCCO's civil commitment rules restrict sexually violent predators' ability to travel beyond the Center. TCCO Brief at 4. If the Center's assigned polling location is in a child safety zone, TCCO rules prohibit sexually violent predators from entering the polling location unless TCCO makes a specific exception. Id. Furthermore, TCCO policy prevents sexually violent predators from leaving the Center without security escorts, thereby preventing them from appearing at a polling place without assistance. See TEX. ELEC. CODE § 82.002(a). Thus, a court would likely conclude that an individual civilly committed pursuant to chapter 841 and residing at the Center is eligible to vote by mail under subsection 82.002(a) of the Election Code.

                                  SUMMARY

                  A court would likely conclude that a qualified voter civilly committed pursuant to chapter 841 of the Health and Safety Code and residing at the Texas Civil Commitment Center is eligible to vote by mail under subsection 82.002(a) of the Election Code.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] Letter from Honorable Scott A. Say, Lamb Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Nov. 18, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Section 841.002(8) lists the offenses that qualify as sexually violent offenses. TEX. HEALTH & SAFETY CODE § 841.002(8).

[3] The Legislature established TCCO as a state agency, administratively attached to the Department of State Health Services, to treat and supervise civilly committed sex offenders. TEX. GOV'T CODE §§ 420A.002(a), .010, .011(a).

[4] As of October 31, 2016, 240 sexually violent predators resided at the Center. Biennial Report Regarding the TCCO, at 19, available at http://www.ovsom.texas.gov/docs/TCCOBiennialReport2016.pdf.

[5] See Brief from Jessica Marsh, Gen. Counsel, TCCO at 3 (Dec. 22, 2016) ("TCCO Brief") (on file with the Op. Comm.); see also TEX. HEALTH & SAFETY CODE § 841.0831.

[6] An individual progresses to the final tier of the treatment program, Tier Five, when TCCO or a court determines that the individual's behavior and progress in treatment warrant less restrictive housing, and conditions can be imposed that adequately protect the community. See TEX. HEALTH & SAFETY CODE §§ 841.0831(b) ("The tiered program must provide for the seamless transition of a committed person from a total confinement facility to less restrictive housing and supervision ...."), .0834 (moving between tiers). At that time, the individual no longer resides at the Center but remains subject to community supervision until fully released from civil commitment. TCCO Brief at 3. Because you ask only about sexually violent predators residing at the Center, we do not address to what extent sexually violent predators currently in Tier Five of the Center's program may be eligible to vote by mail. See Request Letter at 3.

[7] Legislation currently pending would repeal section 82.002 of the Election Code and authorize any qualified voter to vote by mail. See Tex. H.B. 3118, 85th Leg., R.S. (2017); Tex. H.B. 956, 85th Leg., R.S. (2017); Tex. H.B. 163, 85th Leg., R.S. (2017); Tex. S.B. 426, 85th Leg., R.S. (2017).