In the past decade, Texas made this deal with at least two men deemed by officials as among the state's most violent sex offenders: If you leave Texas and never return, you can live on your own.

Each of those men had been ordered into civil commitment under a state program that keeps high-risk sex offenders in state custody even after they have completed their prison sentences because of the severity of their crimes.

Both men, classified by Texas officials as too dangerous to live freely in society, claimed new victims only a few years after their release from prison - in states where local officials could not verify they had been notified the offenders had been required to relocate under court orders, an investigation by the Houston Chronicle revealed.

The cases belie a long-standing assertion by Texas officials that no offender in the civil commitment program had ever committed another sexual offense.

Moreover, the decisions to exile the men from Texas likely were illegal because of a provision in the state constitution that prohibits the banishment of criminals to other states, legal experts said.

Perhaps more surprising, officials with the Office of Violent Sex Offender Management, the Texas agency charged with supervising the state's most dangerous sex predators, did not know about the two men until last week. The banishments came to light when OVSOM officials and the Chronicle attempted to determine the exact number of offenders in the state's civil commitment program.

"It's true we didn't know about those two offenders until we found a discrepancy in the number we showed were on civil commitment and number (the prison system) showed," said Marsha McLane, who was appointed OVSOM's director last May. "We should have known about them."

Officials with the Special Prosecutions Unit, the agency that brings forth civil commitment petitions and that was listed in court documents as responsible for monitoring the two men's whereabouts, did not return calls for comment last week.

Under review

The two cases raise new questions about whom the state chooses to place in the controversial civil commitment program. In May, agency officials began a review of which offenders were placed in the program after a severely disabled, mentally ill, blind man in diapers was transferred into the agency's supervision. Lawyers familiar with the program say there are many men in the program suffering from severe disabilities and other mental illnesses, including one who is confined to a nursing home.

Since the program's inception in 1999, more than 300 sex offenders have been ordered into the civil commitment program. Nearly half have been returned to prison or jail for violating program rules. While the program is supposed to provide a treatment plan for sex offenders who suffer from "a behavioral abnormality," not a single detainee has been released in the program's 15-year history for successfully completing it. Legal experts and mental health professionals question whether the civil commitment program can withstand constitutional muster because of the way it is being operated.

Behavioral abnormalities

The agency also has been facing intense controversy since April, when a series of disclosures by the Chronicle - including the unannounced placement of high-risk sex offenders in a north Houston neighborhood - revealed allegations of contract mismanagement, missing records and administrative mistakes. Since the agency came under fire, its former director, Alison Taylor, and board chair, Dan Powers, have resigned. Three separate investigations into agency operations are continuing.

According to court records and internal agency memos obtained by the Chronicle, the orders sending Lloyd Wilson and Melvin Cody Whipple out of state were signed in August 2004.

At the time, Wilson, 44, had just finished serving a 12-year sentence for indecency with a child in Fort Worth and aggravated sexual assault of a child in Dallas. Whipple, 58, was completing nine years in prison for aggravated kidnapping involving sexual intent and indecency with a child in Amarillo and nearby Deaf Smith County.

State prison records show both men had served their full sentences, meaning they would have been freed without supervision. Because they had been convicted of two sex crimes and deemed to suffer from a behavioral abnormality by a state-recruited psychologist, however, they were eligible to be placed in the state's civil commitment program for sex offenders who are believed to be a continuing danger to the public.

Whipple was ordered into the program on Aug. 6, 2004, and Wilson 14 days later by two different judges in Montgomery County district courts. However, both then were ordered to "leave the State of Texas within 72 hours of release" from prison and "not to visit or reside in the State of Texas."

Both were officially declared to be "sexually violent predators" who were likely to commit new crimes. Each was required to check in every 90 days with a special prison prosecutions unit that signed the orders, to be involved in sex-offender treatment programs and to register as a sex offender.

District Judge Lee Alworth ordered Whipple to move to Bluff, Utah. Judge Putnam Reiter ordered Wilson to live in Virginia.

'Outlawry'

How the two men came to be officially ordered out of Texas despite this constitutional provision remains a question, however.

Section 20 of the bill of rights of the Texas constitution states: "No citizen shall be outlawed. No person shall be transported out of the State for any offense committed within the same." The constitution officially refers to banishment as "outlawry."

Alworth and Reiter said Friday that they could not recall the cases, but Reiter suggested that if a defendant agreed to such a provision, it probably would have gone through unchallenged.

Rudolph Brothers, executive director for State Counsel for Offenders, the agency that represents offenders in the civil commitment cases, pointed out that Whipple and Wilson may have agreed to the banishment out of preference. However, Brothers, who has been head of the agency for about three years, stressed that he would advise his attorneys against letting their clients agree to such stipulations.

"I would not be in favor of any kind of stipulation or agreement that impeded or interfered with someone's fundamental rights, and the right to travel is a fundamental right under the federal Constitution," he said.

Defense attorneys familiar with the law said banishment clearly is illegal.

"I think that's unconstitutional and that it's a nonwaivable right, if someone suggests that the defendants could agree to it," said Richard Gladden, a Denton attorney familiar with the outlawry provision. "There are some constitutional rights you can waive and others you cannot, like the right to an automatic appeal in a death penalty case. Society has an interest in not having banishing be a form of official government action."

Virginia records show that in July 2005, Wilson was arrested in Fairfax County on charges of rape, abduction and producing child pornography after he allegedly agreed to drive a 16-year-old girl home from work and instead took her to his home and raped her. Police at the time said he hit her with his belt and photographed her with his cellphone before driving her home.

He received a 30-year sentence and remains in a prison outside Richmond, Va., officials said. If he is not released early, Wilson will complete his sentence in 2031.

Jenna Sands, the prosecutor on Wilson's Fairfax County case, said she did not recall knowing that Wilson was listed in Texas' civil commitment program.

"If he had been civilly committed (in Texas), I would have thought his attorney would have brought that up, and I have no memory of that coming up at all," said Sands, now a criminal defense lawyer in private practice. She recalled the case because Wilson was known as the "duct-tape rapist" because he tied up the victim with duct tape.

Larry Traylor, a spokesman for the Virginia Department of Corrections that now has charge of Wilson, said Virginia has its own civil commitment program and does not allow offenders to move to another state.

'No indication'

After about a year in Utah, Whipple was arrested in May 2008, accused of fondling an 11-year-old boy after showing him pornography, according to an internal OVSOM memo. He was given a 1- to 15-year sentence for attempted aggravated sexual abuse of a child, a second-degree felony, and is being held in a Utah lockup.

"We had no indication that Whipple was on any continued supervision, such as parole," said Utah Department of Corrections spokeswoman Brooke Adams. She added that Whipple did register as a sex offender in Utah, as required.

Utah's records include a prerelease notification form from the Texas Sex Offender Registration Program, though it is unclear when that document was provided to officials there. The form indicates Whipple was assigned a risk level of "C," with a reference to "civil commitment" but no additional explanation or judgment order date.

After being turned down for parole in 2009, Whipple is not scheduled for another review until 2020, Adams said. He is scheduled to complete his sentence in 2022, she said.

McLane questioned why prosecutors, and not the agency that was supposed to keep track of the violent predators, had that responsibility.

"This agency should have had supervision of those offenders," she said.