from the United States District Court for the Southern
District of Texas USDC No. 4:14-CV-01126
ELROD, HIGGINSON, and ENGELHARDT, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE
Rubio appeals the dismissal of his petition for habeas corpus
for lack of jurisdiction. This court granted a certificate of
appealability on the narrow question of whether Rubio was
"in custody" under the challenged state court
judgment. Because we hold that Rubio satisfies the custody
requirement, we reverse.
is a Texas state prisoner. He is currently subject to two
distinct state court judgments: a civil commitment order and
a criminal conviction. In 2011, Rubio was adjudged a sexually
violent predator under the Texas Health and Safety Code and
civilly committed for an indefinite period of time.
See Tex. Health & Safety Code § 841.081.
The commitment order required Rubio to reside in supervised
housing, submit to GPS tracking, and comply with numerous
other requirements. He later violated the conditions of the
order and absconded from his residential facility. In 2013,
Rubio was convicted of a state felony for failure to comply
with sex offender registration requirements and sentenced to
ten years imprisonment.
federal habeas petition, Rubio challenges only the 2011 civil
commitment order. Rubio's petition notes that his civil
commitment sentence is indefinite. The district court sua
sponte dismissed the petition for lack of jurisdiction.
The court reasoned that Rubio is currently imprisoned under
the 2013 criminal judgment, not the 2011 civil commitment
order, and is therefore not "in custody" under the
judgment he is attempting to challenge. See 28
U.S.C. §§ 2241(c)(3), 2254(a).
review de novo a district court's dismissal for
lack of jurisdiction. Flores-Garza v. I.N.S., 328
F.3d 797, 803 (5th Cir. 2003). A habeas petitioner may seek
relief from a state court judgment only if he is
"'in custody' under the conviction or sentence
under attack at the time his petition is filed."
Maleng v. Cook, 490 U.S. 488, 490-91 (1989)
(discussing 28 U.S.C. §§ 2241(c)(3), 2254(a)). This
custody requirement can be satisfied by certain non-criminal
judgments, including civil commitment orders. Duncan v.
Walker, 533 U.S. 167, 176 (2001); Francois v.
Henderson, 850 F.2d 231, 232 (5th Cir. 1988). Texas does
not dispute that an order of civil commitment under Section
841.081 of the Texas Health and Safety Code may be subject to
habeas review. Rather, the State argues that Rubio was not in
custody under the civil commitment order when he filed his
habeas petition because he was, and still is, serving his
contends that he is "in custody" under the civil
commitment order because the order is indefinite and he is
subject to a detainer to ensure that he returns to civil
detention after the completion of his criminal sentence. He
offers letters from Texas's civil commitment authority
stating that the conditions of his civil commitment remain
"in full force." Consistent with Rubio's
representations, Texas law requires correctional facilities
to notify the civil commitment office and the relevant case
manager upon the release of a prisoner subject to a civil
commitment order. See Tex. Health & Safety Code
§ 841.151(c). The State acknowledges that Rubio will
return to custody under the civil commitment order after he
completes his criminal sentence.
prisoner serving consecutive sentences is considered to be
"in custody" under all of his sentences.
Garlotte v. Fordice, 515 U.S. 39, 41 (1995);
Peyton v. Rowe, 391 U.S. 54, 67 (1968). This
principle applies even if the sentences were imposed by
different authorities. See Maleng, 490 U.S. at 493
(holding that a federal prisoner subject to a state detainer
was "in custody" on his future state sentences). We
perceive no reason to treat a future civil commitment
sentence differently from a future criminal sentence. The
State's reliance on Stanbridge v. Scott, 791
F.3d 715 (7th Cir. 2015), is misplaced because that case
involved a challenge to a past conviction for which the
petitioner had already fully served his
sentence. Id. at 717. Rubio, by contrast,
remains subject to the civil commitment order.
it is undisputed that Rubio will be civilly committed upon
the completion of his criminal sentence, he was "in
custody" under the civil commitment order when he filed
his § 2254 petition. Accordingly, we REVERSE and REMAND
for the district court to consider his petition in the first