(CN) — A Texan must remain in the former prison where the state houses civilly-committed sex offenders, a state appeals court ruled, reversing an order that found his detention unconstitutional and released him.
Alonzo May, 57, served 15 years in the Texas prison system for his 1997 conviction of raping a 17-year-old girl.
Texas placed May indefinitely in its civil commitment program in July 2013 after a Montgomery County jury deemed him a "sexually violent predator."
Texas released him from prison to a halfway house in the Dallas-Fort Worth area for rehabilitation the following September, court records show.
Texas used to make sex offenders in the program live in halfway houses that were supposed to help them make the transition from prison to becoming productive, job-holding citizens.
The state originally designated the 435th Montgomery County District Court in Conroe, an hour north of Houston, as the sole arbiter of these civil commitment hearings.
But a state judicial ethics commission censured then-presiding judge Michael Seiler in May 2015 for calling sex offenders who appear in his court "psychopaths" and for his habit of arguing in court with defense attorneys, who moved to recuse him 16 times in two years, leading lawmakers to strip him of his authority to hear all the state's civil commitment hearings.
The cases are now heard by courts in counties where the crimes happened.
During Seiler's tenure he never deemed an offender worthy of release from the program and sent almost half the enrollees back to prison, some for life, often for minor violations such as being minutes late to treatment meetings or not charging their ankle monitors, according to the Houston Chronicle.
The bad press led state lawmakers to amend the Texas Health and Safety Code in June 2015, creating a new oversight agency, the Texas Civil Commitment Office, and ordering all people in the program to be moved from halfway houses to a former prison in Littlefield, 30 miles northwest of Lubbock.
The amendment altered the program from "outpatient" to "inpatient" treatment.
During May's stay in the halfway house he had to take polygraph tests and a penile plethysmograph test, which involves placing a device around the penis to measure its circumference in response to pornography, court records show.
An Oct. 2013 report concluded that May failed the penis test. It stated: "Penile responses suggest an inability to sexually discriminate between appropriate sexual arousal to adults and deviant arousal to children."
The legislature had the new agency implement a tiered program aimed at transitioning an offender from the Littlefield prison to less-restrictive housing and eventual release from civil commitment, based on the their actions and treatment progress.
Texas filed a motion to place May in the new tiered-treatment program in July 2015, but visiting Judge P.K. Reiter in the 435th Montgomery County District Court ordered May's immediate release from the program in December.
Reiter found Texas had violated May's rights because May's commitment order said he was indefinitely committed for outpatient treatment and supervision not inpatient care in a former prison.
"The requisite involuntary commitment of Alonzo May pursuant thereto is, retroactive, punitive and a denial of Alonzo May's due process rights under the both Texas and U.S. Constitutions ... Therefore, Alonzo May shall be released from civil commitment forthwith," Reiter wrote in the Dec. 14 order.
But May's freedom was short-lived.
"The day that the judge declared the statute unconstitutional as applied to him and ordered him released he got on a bus and went home and stayed with his family for a couple of days," his trial attorney William Marshall said in an interview.
Texas appealed Reiter's order and obtained a stay on Dec. 18 from the Texas Ninth Court of Appeals in Beaumont and May turned himself in for transport to Littlefield, Marshall said.
Marshall said the Littlefield facility has two 10-foot chain link fences around it topped with razor wire and razor wire on the ground in between the fences, and sex offenders there still have to wear GPS ankle monitors.
The appeals court killed May's hopes of getting released from the detention center Thursday, reversing Reiter's order.
May argued in the appellate proceedings that his due process rights were violated because he now has to live in a prison indefinitely, and the 2013 judgment that put him in the program ordered him to be placed in a less-restrictive halfway house setting that residents could leave during the day to look for work as long as they told the staff where they were going.
"But it was not what you would typically envision as a prison or even a jail actually," Marshall said.
The appellate court found May's situation is not as hopeless as he claims.
"May can obtain his release from the restrictions placed on him if his behavioral abnormality changes to the extent he is no longer likely to engage in a predatory act of sexual violence," Judge Leann Johnson wrote for a three-judge panel.
Johnson compared Texas' civil commitment statute to Kansas's Sexually Violent Predator Act, under which any person who is likely to commit "predatory acts of sexual violence" due to a "mental abnormality" or "personality disorder" can be indefinitely confined.
The Supreme Court upheld the Kansas law with a 1997 decision in the case Kansas v. Leroy Hendricks.
The Texas Supreme Court cited Hendricks in its 2005 ruling In re Commitment of Fisher.
In Fisher, the Texas high court found that since the Texas law is a civil statute, it is not "unconstitutionally punitive," Johnson wrote.
"Historically, civil commitment of sexually violent predators has not been viewed as punishment," she added, citing Fischer.
The panel reversed and remanded for entry of an order of commitment that places May into the tiered program.
Marshall said that after Reiter issued his ruling the state released three sex offenders from the program. Still, the program's track record for rehabilitation is dismal, he said.
"Three times as many people have gotten out of this program by committing suicide as have been allowed to leave the program," he said.
May's appellate attorney Bob Mabry said he hasn't decided yet whether to appeal the ruling to the Texas Supreme Court.The ruling pleased Texas Attorney General Ken Paxton. "Today's decision confirms that May and other sexually violent predators may constitutionally remain civilly committed under the Texas Civil Commitment Office's tiered treatment program," he said in a statement.
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