In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-18-00228-CV 

BERTIS CUPIT, APPELLANT 

 

V. 

 

TEXAS CIVIL COMMITMENT OFFICE AND THE CITY OF LITTLEFIELD, 

APPELLEES 

 

On Appeal from the 154th District Court 

Lamb County, Texas 

Trial Court No. DCV 19-754-17, Honorable Felix Klein, Presiding 

 

November 16, 2018 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and PARKER, JJ.  

 

Bertis Cupit appeals from an order dismissing his suit against the Texas Civil 

Commitment Office (Office), Correct Care Recovery Solutions d/b/a Texas Civil 

Commitment Center (Center), and the City of Littlefield, Texas, for want of jurisdiction. 

We affirm.

The record indicates that a jury found Cupit “a sexually violent predator as defined 

in Texas Health & Safety Code § 841.003.” He had been tried in the 435th Judicial District 

Court, Montgomery County, Texas, and a judgment manifesting the jury’s finding was 
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entered by the judge of said district court on January 15, 2013. Per that judgment, the 

trial court ordered that Cupit be “civilly committed as [a sexually violent predator] in 

accordance with Texas Health & Safety Code § 841.081 for outpatient treatment and 

supervision.” By separate order signed on the same day, the trial court also ordered that 

Cupit “reside in supervised housing at a Texas residential facility under contract with the 

[Texas Civil Commitment Office] or at another location or facility approved by the Office[.]” 

The facility in which he currently is placed is the Center located in Lamb County, Texas. 

Cupit sued the Office, Center, and City, contending that they had breached a 

contract with him. The purported contract was the January 15, 2013 judgment ordering 

that he be committed for “outpatient treatment.” The relief he sought for the alleged 

breach was his return “to his county of criminal conviction, Polk County, to resume 

treatment there in ‘true outpatient’ form” and $5,000,000 in punitive damages. 

The Center filed a plea to the jurisdiction of the trial court apparently on behalf of 

all the defendants. It contended that the 435th Judicial District Court in Montgomery 

County had continuing jurisdiction over the suit since Cupit was questioning his 

assignment to the Center in Lamb County. Thus, the 154th Judicial District Court in Lamb 

County lacked subject matter jurisdiction to proceed, according to the Center. The trial 

court agreed and dismissed the action without prejudice to Cupit initiating it in the 435th 

Judicial District Court. Cupit believes that the trial court erred in doing so, especially when 

he was denied prior notice of the court’s intent to dismiss. We disagree.

Whether a trial court has subject-matter jurisdiction over a suit is a question of law. 

Tex. Dept. Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Consequently,

we review a decision holding that it did or did not under the de novo standard of review. 
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Id.; Lubbock-Crosby Cty. Cmty. Supervision & Corr. Dept. v. Lance, No. 07-14-00222-

CV, 2014 Tex. App. LEXIS 13736, at *7 (Tex. App.—Amarillo Dec. 22, 2014, no pet.) 

(mem. op.). Furthermore, in assessing whether such jurisdiction actually exists, we 

consider the plaintiff’s pleadings and factual allegations therein and any evidence 

pertinent to the question. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 

2000); Lubbock-Crosby Cty. Cmty. Supervision, 2014 Tex. App. LEXIS 13736, at *7. So 

too must we accept as true those factual allegations. In re Nurses License of Nichols,

No. 07-17-00236-CV, 2018 Tex. App. LEXIS 4421, at *2 (Tex. App.—Amarillo June 18,

2018, no pet.) (mem. op.). Indeed, the plaintiff has the burden to allege facts which 

affirmatively show the existence of subject-matter jurisdiction. Id. 

Next, § 841.082 of the Texas Health and Safety Code provides that the court that 

civilly committed someone as a sexually violent predator “retains jurisdiction of the case 

with respect to a proceeding conducted under . . . subchapter [E of the statute], other than 

a criminal proceeding involving an offense under Section 841.085, or to a civil 

commitment proceeding conducted under Subchapters F and G.”

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 TEX. HEALTH & SAFETY 

CODE ANN. § 841.082(d) (West Supp. 2018). Falling within this provision are requests by 

the committed person for less restrictive housing and supervision. See Tex. Civ. 

Commitment Office v. Hartshorn, 550 S.W.3d 319, 329–30 (Tex. App.—Austin 2018, no 

 

1 Subchapter E encompasses a trial conducted under Subchapter D of the statute resulting in a 

determination that the person is a sexually violent predator. See TEX. HEALTH & SAFETY CODE ANN.

§ 841.081(a) (West 2017) (stating that “[i]f at a trial conducted under Subchapter D the judge or jury 

determines that the person is a sexually violent predator, the judge shall commit the person for treatment 

and supervision to be coordinated by the office”). Subchapters F and G concern reviewing the person’s

continued commitment, id. § 841.101(a) (stating that “[a] person committed under Section 841.081 shall 

receive a biennial examination”), and a petition for release, respectively. Id. § 841.121(a) (stating that “[i]f 

the office determines that the committed 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, the office shall authorize the 

person to petition the court for release”). 
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pet.); see also In re Commitment of Davis, 291 S.W.3d 124, 127 (Tex. App.—Beaumont 

2009, pet. denied) (acknowledging that the trial court that originally committed the person 

retains jurisdiction and the power to modify the commitment requirements at any time).

Long ago, we were directed to look at the substance of a pleading, as opposed to 

its label, to determine the nature of the pleading and relief sought. See State Bar of Tex. 

v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); see also In re J.Z.P., 484 S.W.3d 924, 925 

(Tex. 2016) (per curiam) (reiterating the rule). Following that directive here, we perused 

Cupit’s live pleading. So too did we review the “supplemental brief” he filed shortly 

thereafter. Through the latter, he confirms that he “is not contesting his conviction, but 

he is contesting the impairment of the way his contract is being carried out.” Again, that 

“contract” is the January 15, 2013 judgment both committing him and ordering that he 

undergo “outpatient treatment.” Instead of being afforded “outpatient treatment,” he is 

confined within the Center, according to the allegations in his live pleading. He wants to 

be removed from the Center in Lamb County, returned to Polk County, and receive 

outpatient treatment there. Such relief is comparable to asking for less restrictive housing 

and supervision. Thus, the substance of his complaint falls within § 841.082(d) of the 

Health and Safety Code and the continuing jurisdiction of the 435th Judicial District Court. 

The latter court having continuing jurisdiction over the nature of Cupit’s dispute, the 154th 

Judicial District Court had no jurisdiction to adjudicate it. See Hartshorn, 550 S.W.3d at 

331 (concluding that because the committing court in Montgomery County did not lose 

jurisdiction over Hartshorn’s cause, the Travis County district court lacked jurisdiction over 

it, and the plea to its jurisdiction should have been granted). Thus, it did not err in granting 

the Center’s plea to the jurisdiction and dismissing, without prejudice, the entire cause.
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In reaching the foregoing conclusion, we do not ignore Cupit’s allegation that he 

should have been granted notice of the trial court’s intent to dismiss. Yet, such notice 

and an opportunity to respond is not necessarily required. Unlike a dismissal for want of 

prosecution, see TEX. R. CIV. P. 165a(1) (requiring prior notice of the trial court’s intent to 

dismiss for want of prosecution), notice requirements for a plea to the jurisdiction are left 

to the trial court’s discretion. See Collard v. State, No. 05-11-01508-CV, 2012 Tex. App. 

LEXIS 7287, at *2–3 (Tex. App.—Dallas Aug. 29, 2012, no pet.) (mem. op.). If the 

plaintiff’s pleadings affirmatively negate subject-matter jurisdiction, it is irrelevant whether 

the plaintiff was given notice before the trial court ruled. Id.; Mann v. Gabriel, No. 11-10-

00265-CV, 2012 Tex. App. LEXIS 5569, at *5–6 (Tex. App.—Eastland July 12, 2012, no 

pet.) (per curiam) (mem. op.); Martinez v. State, No. 13-10-00076-CV, 2011 Tex. App. 

LEXIS 1809, at *6–8 (Tex. App.—Corpus Christi Mar. 10, 2011, no pet.) (mem. op.). So,

unless the plaintiff shows that notice could have affected the decision, withholding notice 

is not reversible error. See Collard, 2012 Tex. App. LEXIS 7287, at *3 (concluding that,

“absent some showing that notice could have affected the trial court’s ruling, th[e] point 

presents nothing to review”). 

Below and before us, Cupit consistently likened his suit to one for a breach of 

contract due to his commitment to the Center in Lamb County. He has consistently sought 

his return to Polk County to undergo outpatient treatment. The factual allegations in his 

pleadings and briefs show nothing more than effort to alter the circumstances of his 

commitment by securing less restrictive housing and treatment. Nothing suggests that 

the actual substance of his complaint would have changed if he had been afforded notice 

of the trial court’s intent to dismiss. Indeed, he still contends, via his appellate brief, that 
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he should be receiving outpatient rather than inpatient treatment per the January 15th 

judgment; this is so despite the accompanying order from the same court directing that 

he “reside in supervised housing at a Texas residential facility under contract with the 

‘Office’ or at another location or facility approved by the Office.”

Simply put, a multi-ton animal with large flapping ears, two tusks, and a long trunk 

used to grasp items is an elephant even though one may call it an iguana. Cupit may call 

his suit one for breached contract, but the factual allegations in his pleadings and 

accompanying writings coupled with the relief he has consistently sought throughout the 

proceeding affirmatively illustrate an attempt to secure relief within the continuing 

jurisdiction of the 435th Judicial District Court. Affording a plaintiff prior notice of a trial 

court’s intent to dismiss due to the clear absence of subject-matter jurisdiction may be a 

laudable avenue to pursue, even though it may result in some delay in the ultimate 

disposition of the suit. On the other hand, some may ask, “Why prolong the obvious?” 

Sometimes, though, the sense of having been afforded a chance to speak may carry 

sway. Nevertheless, Cupit’s pleadings, attachments thereto, and consistent argument 

reveal that the 154th Judicial District Court lacked subject-matter jurisdiction over his

complaint. It fell within the continuing jurisdiction of another court. So, denying Cupit 

prior notice of an intent to dismiss is not reversible error. 

We overrule appellant’s issues and affirm the trial court’s judgment.

Brian Quinn

Chief Justice