IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20671

JAMES RUBIO, 

 Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent - Appellee

Appeal from the United States District Court for the

Southern District of Texas

USDC No. 4:14-CV-01126

Before ELROD, HIGGINSON, and ENGELHARDT, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

James 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.

I.

Rubio 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 

United States Court of Appeals

Fifth Circuit

FILED

October 30, 2018

Lyle W. Cayce

Clerk

 Case: 16-20671 Document: 00514704031 Page: 1 Date Filed: 10/30/2018
No. 16-20671

2

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.

In his 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).

II.

We 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 

criminal sentence.

 Case: 16-20671 Document: 00514704031 Page: 2 Date Filed: 10/30/2018
No. 16-20671

3

Rubio 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.

A 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.1 Id. at 717. Rubio, by contrast, remains subject to the civil 

commitment order.

Because 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 

 

1 The Eighth Circuit’s decision in George v. Black, 732 F.2d 108 (8th Cir. 1984) is also 

inapposite because that case involved the voluntariness of a guilty plea, not whether a habeas 

petitioner was “in custody.”

 Case: 16-20671 Document: 00514704031 Page: 3 Date Filed: 10/30/2018
No. 16-20671

4

REVERSE and REMAND for the district court to consider his petition in the 

first instance.

 Case: 16-20671 Document: 00514704031 Page: 4 Date Filed: 10/30/2018