ACCEPTED 15-24-00013-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 4/23/2025 12:36 PM NO. 15-24-00013-CV CHRISTOPHER A. PRINE CLERK
IN THE COURT OF APPEALS RECEIVED IN 15th COURT OF APPEALS FOR THE FIFTEENTH JUDICIAL DISTRICTAUSTIN, TEXAS 4/23/2025 12:36:31 PM CHRISTOPHER A. PRINE CECILE ERWIN YOUNG, IN HER OFFICIAL CAPACITY Clerk AS EXECUTIVE COMMISSIONER OF HHSC, ET. AL, Appellants/Defendants
vs.
DALLAS COUNTY, TEXAS AND MARIAN BROWN, IN HER OFFICIAL CAPACITY AS DALLAS COUNTY SHERIFF, Appellees/Plaintiffs
On Appeal from the 353rd Judicial District Court Travis County, Texas
BRIEF OF AMICUS CURIAE TEXAS ASSOCIATION OF COUNTIES Respectfully submitted,
JACKSON & CARTER, PLLC 6514 McNeil Drive, Bldg. 2, Suite 200 Austin, TX 78729 (512) 473-2002 Telephone (512) 473-2034 Facsimile
By: /s/ A. Craig Carter A. Craig Carter State Bar No. 03908100 ccarter@jackson-carter.com COUNSEL FOR AMICUS CURIAE TEXAS ASSOCIATION OF COUNTIES TABLE OF CONTENTS
Page
TABLE OF CONTENTS ...........................................................................................2
TABLE OF AUTHORITIES .....................................................................................3
INTEREST OF AMICUS CURIAE ......................................................................... 6
SUMMARY OF THE ARGUMENT……………………………………………....7
ARGUMENT AND AUTHORITIES……………………………………………...9
I. THE TRIAL COURT PROPERLY DENIED HHSC'S PLEA TO THE JURISDICTION…………………………………………………………......9 A. Case Background…………………………………………………………9 B. County Jails and State Hospitals…………………………………………9 C. Absent discretion granted by the legislature, actions in violation of statute are ultra vires……………………………………………………………….11 II. COUNTY JAILS ARE NOT INTENDED TO BE, AND ARE NOT WELL EQUIPPED TO SERVE AS, DE FACTO MENTAL HEALTH FACILITIES…………………………………………………………….….17 III. TEXAS COUNTIES SHOULD BE ALLOWED TO MAINTAIN CONTROL OVER THEIR LOCAL FACILITIES………………………...20
CONCLUSION AND PRAYER ...........................................................................221
CERTIFICATE OF COMPLIANCE……………………………………………...22
2 TABLE OF AUTHORITIES
CASES Page(s)
Chambers-Liberty Co. Nav. Dist. v. State, 575 S.W.3d 339, 345 (Tex. 2019….…15
City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)…………………………12
Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154 (Tex. 2016).……………………………………………………………………………...12
O’Connor v. Davidson, 422 U.S. 563 (1975)……………………………………...11
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)………….15
Tex. Dep't of Prot. and Reg. Svs. v. Mega Child Care, Inc., 145 S.W.3d 170 (Tex. 2004)…………………………………………………..…………………………..16
TEX. CONSTITUTION, STATUTES AND REGULATIONS TEX. CONST. art. V, § 18………………………………………………………..21
TEX. CODE CRIM. PROC. Art. 46B.0021……………………………….……...12
TEX. CODE CRIM. PROC. Art. 46C.0011………………………………………12
TEX. CODE CRIM. PROC. Art. 46B.106(1)…………………………….………12
TEX. CODE CRIM. PROC. Art. 46C.251……………………...………………..12
TEX. GOV’T CODE, Section 511.021………………………………………….…9
TEX. LOCAL GOV’T CODE, Ch. 351……………………………………..……18
TEX. LOCAL GOV’T CODE, Section 351.001………………………………….18
TEX. LOCAL GOV’T CODE, Section 351.014……………………………...…..18
TEX. LOCAL GOV’T CODE, Section 351.041…………………………………...8
TEX. LOCAL GOV’T CODE, Section 351.034………………………………….10 3 TEX. GOV’T CODE, Section 511.021…………………………………………...10
37 TEX. ADMIN CODE Section 275.2…………………………………….…….10
37 TEX. ADMIN CODE, Ch. 297………………………………………………..10
OTHER
AP Investigation: Many Jails Fail to Stop Inmate Suicides………………………19
HHSC Presentation to the Senate Finance Committee – Mental Health in Texas, 2/18/25…………………………………………………………………………….10
J, Hirschauer “The Last Institutions”, City Journal Dec. 27, 2022……………….11
Jaffe, DJ “Insane Consequences, How the Mental Health Industry Fails the Mentally, Ill (2017)(general discussion of impact of litigation on treatment for toughest cases of mental illness)………………………………………………….11
KERA News: “He lingered for months in jail. Long waits for Texas mental health beds mean he’s not alone”………………………………………………………...18
Mental Health Letter from Dallas County Commissioners Court, cited in KERA article, “Dallas County sues Texas over wait times for mentally ill inmates;” https://www.keranews.org/criminal-justice/2023-03-24/dallas-county-mental- health-beds-lawsuit..................................................................................................20
Mortality in Local Jails 2000-2019 – Statistical Tables, Bureau of Justice Statistics, December 2021, NCJ 301368……………………………………………………..19
Reuters Investigates: Dying Inside………………………………………………..19
Roberts, J, “Reform and Retribution”, An Illustrated History of American Prisons p. 1, 21-22…………………………………………………………………………10
Shayeb, M “Psychiatric Treatment in Nineteenth Century Texas” Medical Humanities.Rice.Edu/psychiatry (2018)…………………………………………..11
Stuckey, A “In Crises, Part 2: Funding Cuts so deep they kill”, Houston Chronicle, updated March 9, 2022……………………………………………………………11 4 Texas Commission on Jail Standards 2022 and 2023 Annual Report………….…18
Texas Tribune: “Workforce shortages in the state psychiatric hospital system prolong jail time for mentally ill Texans”………………………………………………………………………..….18
The Behavioral Health System- DSHS Presentation to the House Select Committee; February 18, 2016……………………………………………………11
Tiny Texas Jails – Dallas County; https://www.tinytexasjails.com/vanished/dallas- county . ………………………………………………………………………….....9
TSHA Handbook Online: Austin State Hospital; Terrel State Hospital; San Antonio State Hospital………………………………………………………...10-11
5 NO. 15-24-00013-CV
IN THE COURT OF APPEALS FOR THE FIFTEENTH JUDICIAL DISTRICT
CECILE ERWIN YOUNG, IN HER OFFICIAL CAPACITY AS EXECUTIVE COMMISSIONER OF HHSC, ET. AL, Appellants/Defendants
DALLAS COUNTY, TEXAS AND MARIAN BROWN, IN HER OFFICIAL CAPACITY AS DALLAS COUNTY SHERIFF, Appellees/Plaintiffs
On Appeal from the 353rd Judicial District Court Travis County, Texas
TO THE HONORABLE JUSTICES OF THE FIFTEENTH COURT OF APPEALS OF TEXAS: The Texas Association of Counties, as Amicus Curiae, respectfully submits this
Brief of Amicus Curiae, pursuant to Rule 11 of the Texas Rules of Appellate
Procedure, and urges this Court to uphold the trial court’s denial of
Defendant/Appellant’s Plea to the Jurisdiction.
INTEREST OF AMICUS CURIAE
The purpose of the Texas Association of Counties (“TAC”) is to coordinate
and augment the efforts of county officials to provide a responsive form of
government to the people of Texas; to further the interest of local government for
the people of Texas; and, to assist the people and the counties in accomplishing their 6 goals toward meeting the challenge of modern society.
TAC is filing this brief because it believes the questions raised in this suit are
important to counties and are having a significant impact on county finances and
budgets as well as on county employees. TAC has compensated the law firm of
Jackson & Carter, PLLC, for the preparation of this brief.
SUMMARY OF THE ARGUMENT
For purposes of this Brief, The Texas Association of Counties adopts the
Statement of Facts contained in the Brief of Appellees. The pleadings and evidence
submitted by Appellees (referred to herein as “Dallas County”) regarding the
numbers and length of time forensic patients are remaining in the county jail and not
being transferred to state facilities are sufficient to assert viable claims of ultra vires
and unconstitutional actions on the part of Appellants (referred to herein as “HHSC”)
at the pleadings stage. Sovereign immunity does not bar an ultra vires suit against a
state official for an exercise of limited discretion in violation of the law. HHSC does
not dispute that it is required to designate/operate state facilities for the purpose of
accepting forensic commitment patients and it does not take the position that it is
legally allowed to unilaterally transfer its obligations to the counties. HHSC cannot
legally allow forensic commitment patients to remain in county jails indefinitely.
Thus, HHSC does not have unlimited discretion regarding the acceptance of forensic
commitment patients and this suit should not be dismissed at the pleadings stage
7 based on sovereign immunity.
The discussion in HHSC’s principal brief regarding recent efforts made to
shorten the forensic commitment patient waitlist does not weigh in favor of the plea
to the jurisdiction being granted and, at best, only shows that a fact issue exists.
Legislative acceptance, or acquiescence, is not applicable to the case at hand because
there has been no construction of the applicable statutes by the Texas Supreme Court
or an administrative agency, and there has not then been a re-enactment of the
applicable statutes without substantial change. HHSC’s failure to timely accept
forensic commitment patients into state hospitals is forcing county jails to serve as
de facto mental health facilities, which may put patients and county staff at risk.
HHSC’s failure to timely accept forensic commitment patients into state hospitals is
usurping the control of locally elected county officials over local facilities which are
supported by ad valorem taxed paid by local county residents.
8 Argument and Authorities
I. The Trial Court Properly Denied HHSC’s Plea to the Jurisdiction
A. Case Background
This case is about the mandatory duty assigned to HHSC by the state political
branches to provide care for those jail detainees found to be incompetent to stand
trial, or not guilty by reason of insanity. HHSC has failed in its duty to timely house
such forensic patients, thus leaving the costs of housing and caring for these
detainees on the county tax-payers dime despite statutory directives that they should
be cared for by the state. It has become an unfunded mandate.
As Dallas County points out in its Brief, the failure of the state to honor its
duties to forensic patients in county jails creates a horizontal separation of powers
issue this court must address. Furthermore, because there is no discretion provided
to the state agency by the statute, the actions are ultra-vires. Some historical
background highlights the issue.
B. County Jails and State Hospitals
Texas county jails are a necessary community cost to provide public safety
expressly provided for by the legislature in statute. Tex. Local Gov. Code Section
351.041. The first jail in Dallas County was established in 1850.1 Jails like the one
1 https://www.tinytexasjails.com/vanished/dallas-county (quoting p. 93, Blackburn, Ed “Wanted: Historic County Jails of Texas,” (2006). 9 established in 1850 in Dallas have been used and are still used to house detainees
while they await trial, punishment or release. The administration of such jails is a
duty given to the locally elected County Sheriff. Tex. Local Gov. Code Section
351.034. Much of how we have used jails in this country was inherited from Western
Europe.2 Of course, that inheritance is amplified by our Constitution, Court Cases
and laws of the State of Texas. For example, jailers are required to be licensed by
the state. 37 Tex. Administrative Code Section 275.2. Jails are required to undergo
both scheduled and random inspections by the Texas Commission on Jail Standards
which are done with the power to impose penalties. 37 Tex. Administrative Code,
Chap. 297. If tragedy strikes and a detainee dies in jail custody, the jail will be
investigated by the Texas Rangers, or another law enforcement agency that doesn’t
operate the facility. Tex. Gov. Code Section 511.021.
According to the handbook of the Texas State History Association, the first
Texas State Hospital to care for the mentally ill, now known as Austin State Hospital,
was established by the legislature in 1856. 3 Terrel State Hospital was created in
1885, followed by San Antonio State Hospital in 1889. 4 There are nine State
Hospitals in Texas today. 5
2 Roberts, J, “Reform and Retribution”, An Illustrated History of American Prisons p. 1, 21-22. 3 https://www.tshaonline.org/handbook/entries/austin-state-hospital 4 https://www.tshaonline.org/handbook/entries/terrell-state-hospital; https://www.tshaonline.org/handbook/entries/san-antonio-state-hospital 5 HHSC Presentation to the Senate Finance Committee – Mental Health in Texas, 2/18/25. 10 In “a reflection of the movement to reduce the number of patients
institutionalized in psychiatric hospitals in the United States”, the number of patients
admitted to State Hospitals in Texas began to decline in the decades after 1970. 6 For
example, Terrell State Hospital housed 1,652 patients in 1976, 715 in 1986 and 525
in 1988. 7 The same is true at other state hospitals. In addition, between 1994 and
2015 state-funded Psychiatric Bed Capacity dropped.8 While admittance was
shrinking, the demand for forensic beds was not.9 This trend of reduction in mental
health beds forms part of the reason for today’s ongoing crisis.
C. Absent discretion granted by the legislature, actions in violation of statute are ultra vires.
Dallas County’s allegations and the evidence submitted at the trial court level
are sufficient to assert viable claims of ultra vires and unconstitutional actions on the
part of HHSC at the pleadings stage. An ultra vires claim against a government
official may be established by showing that the official "acted without legal authority
6 https://www.tshaonline.org/handbook/entries/terrell-state-hospital. See also Shayeb, M “Psychiatric Treatment in Nineteenth Century Texas” Medical Humanities.Rice.Edu/psychiatry (2018) (Overview of psychiatric care in north Texas in the 19th Century); Stuckey, A “In Crises, Part 2: Funding Cuts so deep they kill”, Houston Chronicle, updated March 9, 2022 (“Since the 1950’s, the number of state-run hospital beds has decreased by 95 per cent. Outpatient treatment hasn’t filled the gap.”); O’Connor v. Davidson, 422 U.S. 563 (1975); Jaffe, DJ “Insane Consequences, How the Mental Health Industry Fails the Mentally, Ill (2017)(general discussion of impact of litigation on treatment for toughest cases of mental illness); J, Hirschauer “The Last Institutions”, City Journal Dec. 27, 2022 (discussion of lives of patients when facilities close). 7 Id. 8 The Behavioral Health System- DSHS Presentation to the House Select Committee; February 18, 2016. 9 https://www.tshaonline.org/handbook/entries/terrell-state-hospital. 11 or failed to perform a purely ministerial act." City of El Paso v. Heinrich, 284 S.W.3d
366 (Tex. 2009). While sovereign immunity bars suits complaining of an exercise
of absolute discretion, it does not bar suits complaining of “an officer's exercise of
judgment or limited discretion without reference to or in conflict with the constraints
of the law authorizing the official to act. Only when such absolute discretion—free
decision-making without any constraints—is granted are ultra vires suits absolutely
barred.” Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 163
(Tex. 2016). Granting absolute protection in instances where an official is exercising
only limited discretion “would go against the rationale for governmental immunity
in the first place.” Id.
HHSC is not disputing that it has an obligation to accept forensic commitment
patients into State facilities. Nor could they, as pertinent statutes require HHSC to
designate facilities which are either operated by HHSC or under contract with HHSC
for the purpose of accepting forensic commitment patients. See TEX. CODE CRIM.
PROC. Art. 46B.0021 and Art. 46C.0011. In certain circumstances, forensic
commitment patients are required to be placed in these HHSC designated facilities.
See TEX. CODE CRIM. PROC. Arts. 46B.106(1) and 46C.251. Both parties agree
that it is HHSC’s statutory obligation to maintain state facilities and to accept
forensic commitment patients into these facilities. Further, HHSC does not appear
to be taking the position that it is allowed by law to forego this obligation and instead
12 to shift its statutory obligation to house and provide treatment to forensic
commitment patients to the counties. As such, HHSC does not have absolute
discretion under the law regarding the acceptance of forensic commitment patients.
Thus, the issue for the trial court to decide is whether, as Dallas County asserts,
HHSC’s excessive delays in accepting forensic commitment patients is, in effect, a
transfer of HHSC’s legal obligations and accompanying cost to the counties which
is an ultra vires violation of its statutory obligations and a constitutional violation.
HHSC, relying on what it claims is a lack of clarity in the statutes, argues that
it has immunity in this instance and that courts have no authority to review this
matter, regardless of the length of wait time and regardless of how many forensic
commitment patients are being housed and treated by Dallas County, as well as other
counties around the state. However, HHSC’s argument begs this question: At what
point does the extent and length of the waitlist amount to HHSC shifting its
responsibilities to the counties, thus violating the law and becoming ultra vires and
unconstitutional? HHSC is asking this Court to throw the case out before the above
question can ever be considered. Following HHSC’s arguments to their logical
extension, HHSC could adopt a practice of simply allowing forensic commitment
patients to stay in county jails indefinitely, for the rest of their lives or until they can
be discharged, and courts would be without jurisdiction and powerless to decide
whether the HHSC Commissioner’s actions are, or are not, in compliance with the
13 requirements of the law.
In other words, HHSC is essentially claiming that it has unlimited discretion
to wait an indefinite amount of time to accept forensic commitment patients into
state facilities. However, the various applicable statutes and constitutional
provisions, some of which are cited herein and others in Dallas’ County’s briefing,
do not support such a position. Dallas County has made factual allegations and
presented evidence to the trial court regarding the excessive number of forensic
commitment patients that are required to remain in Dallas County custody, the
excessive amount of time such patients remain in the custody of the County, and the
associated costs to the County. This is all due to HHSC’s failure to accept such
patients into state facilities within a reasonable amount of time as required by the
laws our legislature has passed. Based on such allegations and evidence, Dallas
County has sufficiently stated claims that HHSC has either acted without legal
authority or failed to perform a purely ministerial act, and that such acts are in
contravention of the State Constitution, due to the excessive delays in accepting
forensic commitment patients into state facilities. Thus, the trial court should be
allowed to hear this case and decide as to whether HHSC’s actions are ultra vires
and unconstitutional.
HHSC’s principal brief also discusses recent efforts made to shorten the
forensic commitment patient waitlist and to comply with the requirement to accept
14 forensic commitments into state facilities, in an attempt to show that HHSC is
meeting its statutory and constitutional obligations. Brief for Appellants, pp. 7 – 11.
While this information might be pertinent, at this stage it can only create a fact issue
that precludes granting a plea to the jurisdiction. In fact,
“In some cases, disputed evidence of jurisdictional facts that also implicate the merits of the case may require resolution by the finder of fact. When the consideration of a trial court's subject matter jurisdiction requires the examination of evidence, the trial court exercises its discretion in deciding whether the jurisdictional determination should be made at a preliminary hearing or await a fuller development of the case, mindful that this determination must be made as soon as practicable. Then, in a case in which the jurisdictional challenge implicates the merits of the plaintiffs' cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists. If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder.”
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227–28 (Tex.
2004). Furthermore "[i]f the evidence (submitted at the plea to the jurisdiction stage)
creates a fact question regarding the jurisdictional issue, then the trial court cannot
grant the plea to the jurisdiction, and the fact issue will be resolved by the fact
finder.” Chambers-Liberty Counties Navigation Dist. v. State, 575 S.W.3d 339, 345
(Tex. 2019). The trial court in this case acted within its discretion in deciding not to
dismiss the matter at the pleading stage and to allow the case to proceed for further
factual development.
In support of its arguments, HHSC also notes the fact that certain filed bills
15 addressing timely transfer of forensic patients did not pass in the 88th Texas
Legislative session. Brief for Appellants, p. 7. However, the fact that these bills did
not pass is not a basis for the trial court to have declined to exercise jurisdiction in
this case. As noted by the County in its briefing, courts should not attach interpretive
significance to failed legislation. Additionally, while courts do occasionally apply
the concept of “legislative acquiescence” to infer that the legislature has
intentionally decided not to amend a particular law, the concept is not applicable
here. The most specific and common type of legislative acquiescence is generally
referred to as "legislative acceptance." Legislative acceptance requires the following
conditions: (1) the court of last resort (or proper administrative officer) has construed
a statute; (2) the statute was ambiguous; and (3) the Legislature has re-enacted the
statute without substantial change. If these circumstances exist, the operative
presumption is that the Legislature is familiar with the court's interpretation and has
adopted it. See, e.g., Tex. Dep't of Protective and Regulatory Svs. v. Mega Child
Care, Inc., 145 S.W.3d 170, 195-96 (Tex. 2004). In the case at hand, there has been
no construction of applicable statutes by the Texas Supreme Court or an
administrative agency (in the form of a regulation), and there has not then been a re-
enactment of the applicable statutes without substantial change. So, legislative
acceptance, or acquiescence, is not applicable to the case at hand and the trial court
is not deprived of jurisdiction simply because two of the thousands of unsuccessful
16 bills filed in the 88th Legislature concerned transfer of forensic patients.
Further, TAC urges that the fact that the legislature did not pass more specific
provisions addressing transfer of forensic patients weighs in favor of the trial court
exercising jurisdiction in this case. It is important that the court be allowed to
address the significant and pressing issues raised in this case and to decide whether
HHSC is violating statutes and the Constitution by shifting its responsibility to house
and treat forensic commitment patients to the counties of this state.10
II. County Jails are Not Intended to be, and are Not Well Equipped to, Serve as De Facto Mental Health Facilities
The extensive waitlist for admission of forensic commitment patients into
state hospitals is forcing county jails to serve as de facto mental health facilities for
these individuals who are in great need of appropriate mental health services. Often
times, county jails are not equipped or staffed to handle the mental health needs of
these patients. According to the Texas Commission on Jail Standards, the “waitlist
for admission to a state hospital for competency restoration…remains excessively
high but has gone down since the last report and currently is at 1,936. This is a burden
placed on our county jails that they were never envisioned to fulfill as they operate
10 This is not a case where the court is being asked to direct the Texas Legislature and its decisions on appropriation of funds. Instead, this case is asking the court to decide whether HHSC’s activities, and how it allocates and spends appropriated money, complies with its statutory and constitutional responsibilities. 17 as de facto mental health facilities but without the specialized staff or resources to
do so successfully.” 11 In March 2023, the Texas Health and Human Services
reportedly estimated the average wait time for all forensic admissions is about 323
days.12 In May of 2024, the forensic commitment waitlist was reportedly 1,852.13
In the real world, these excessive waitlists are forcing county jails into a role
they were not meant to play. Counties are required to provide “safe and suitable
jails.” Tex. Local Gov’t Code, Section 351.001. However, county jails are not
mental health facilities. See the requirements in Tex. Local Gov’t Code, Ch. 351,
and specifically section 351.014, placing limitations on holding of “insane persons”
in county jails. Thus, the excessive delays in transferring forensic commitment
patients into state hospitals means that these patients may not receive the services
they need on a timely basis. Additionally, and perhaps just as important, this
11 Texas Commission on Jail Standards 2023 Annual Report, p. 22. 2023 Annual Report (state.tx.us). Also, see Texas Commission on Jail Standards 2022 Annual Report, p. 22; 2022 Annual Report (state.tx.us) (“It was reported last year that the wait list had just exceeded 2,000 inmates with an average wait time approaching one year. The wait list is now over 2,500 and the average wait time exceeds one year. This is a burden placed on our county jails that they were never envisioned to fulfill as they operate as de facto mental health facilities but without the specialized staff or resources to do so successfully.”). 12 Texas Tribune; “Workforce shortages in the state psychiatric hospital system prolong jail time for mentally ill Texans”; March 10, 2023; https://www.texastribune.org/2023/03/10/texas-state- hospitals-mental-health-workforce- shortage/#:~:text=Texas%20Health%20and%20Human%20Services%20have%20estimated%20t he%20average%20wait,after%20altercations%20with%20jail%20staff. 13 KERANews; “He lingered for months in jail. Long waits for Texas mental health beds mean he’s not alone”; June 25, 2024; https://www.keranews.org/criminal-justice/2024-06-25/a-texas- man-with-disabilities-lingered-for-months-in-jail-long-wait-times-at-mental-health-facilities- mean-hes-not-alone.
18 situation can place the staff in county jails in both physical and legal jeopardy. One
example of this is the fact that counties and county employees often must deal with
attempted suicides, and sometimes successful suicides, by jail inmates. When that
happens, county officials are often then subjected to civil rights lawsuits arising out
of these suicide attempts.
In fact, suicide is the leading cause of death in local jails according to the
Bureau of Justice Statistics.14 In 2019 there were 355 deaths by suicide in local
jails. 15 Between 2000 and 2019 there were 6,217 jail suicides, counting for thirty
percent of all deaths in local jails.16 Reuters reached similar conclusions in its own
study in 2020. 17 In 2019, the Associated Press reported that of the more than 400
lawsuits filed alleging mistreatment of inmates, around 40 percent involved suicides
in local jails with 135 deaths and 30 attempts.18
Despite heroic efforts by Texas County Jails, the monetary cost to counties
because of the HHSC’s failure to house and treat forensic patients is massive, and
on its allowed revenue, unsustainable. For example, according to Dallas County, in
October 2022 there were 378 individuals awaiting transfers to state facilities for
14 Mortality in Local Jails 2000-2019 – Statistical Tables, Bureau of Justice Statistics, December 2021, NCJ 301368. 15 Ibid. 16 Ibid. 17 https://www.reuters.com/investigates/special-report/usa-jails-privatization/ 18 https://apnews.com/article/ap-top-news-ut-state-wire-ia-state-wire-ca-state-wire-us-news- 5a61d556a0a14251bafbeff1c26d5f15 19 competency restoration. In September of that year, Dallas County cared for 394
such inmates at a cost of $66.17 per inmate per day. However, the cost for this
population given the acute needs requires an added expense for treatment and
supervision. So Dallas County estimates that in September of 2022, “Dallas County
paid up to $5,545,589.40 to maintain care for individuals the State would not
accept.” 19 Imagine the cost of this burden for all 254 Counties.
By placing Dallas County and other counties in a position where they are
required to care for large numbers of forensic commitment patients for unreasonably
large periods of time, HHSC is forcing county jails to serve as de facto mental health
facilities and placing jail staff and their inmates in jeopardy. This is not what was
intended by the legislature.
III. Texas Counties should be allowed to maintain control over their local facilities.
TAC reiterates and endorses Dallas County’s arguments that HHSC is
improperly utilizing the facilities and ad valorem tax revenues that rightfully belong
to the counties and which are to be used for citizens of the counties. The citizens of
Dallas County, and all the other Texas counties, pay their ad valorem taxes to various
local governmental entities, including the county, and the citizens of each county
19 Mental Health Letter from Dallas County Commissioners Court, cited in KERA article, “Dallas County sues Texas over wait times for mentally ill inmates;” https://www.keranews.org/criminal-justice/2023-03-24/dallas-county-mental-health-beds- lawsuit.
20 elect the local Commissioners to then make decisions about use of the ad valorem
tax revenues and operation and management of county facilities. The elected
Commissioners are then constitutionally empowered to exercise control over county
business, including the jails. See TEX. CONST. art. V, § 18. HHSC’s actions in
allowing forensic commitment patients to remain in county jails in unreasonably
large numbers for unreasonably large time frames, is usurping the local control that
is, per the Texas Constitution, to be exercised by locally elected officials.
Therefore, inherent in this litigation are questions about the role of the courts
to resolve both vertical and horizontal separation of power questions. Amicus curiae
recognizes the importance of judicial humility and restraint when confronting
questions such as these-- the proper architecture and funding of government. Yet,
there are situations when the exercise of such doctrines pushes a court into
passivism--rejecting its proper role. We believe the question about whether HHSC
has neglected its duty to care for forensic and mental health detainees in state
facilities thus forcing local governments to fund housing and care for such detainees
is such a case.
CONCLUSION AND PRAYER
THEREFORE, for the reasons set out above, Amicus Curiae Texas
Association of Counties respectfully urge this Court to uphold the trial court’s order
denying HHSC’s Plea to the Jurisdiction.
21 Respectfully submitted,
JACKSON & CARTER, PLLC 6514 McNeil Drive, Bldg. 2, Suite 200 Austin, TX 78729 (512) 473-2002 Telephone (512) 473-2034 Facsimile
By: /s/ A. Craig Carter A. Craig Carter State Bar No. 03908100 ccarter@jackson-carter.com
COUNSEL FOR AMICUS CURIAE
CERTIFICATE OF COMPLIANCE
I hereby certify that this Brief of Amicus Curiae was prepared using Microsoft
Word, which indicated that the total word count is 4293 words.
By: /s/ A. Craig Carter A. Craig Carter
22 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
instrument has been served electronically on all counsel of record on this the 23rd
of April, 2025, in accordance with the Texas Rules of Civil Procedure.
23 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Charlotte Holub on behalf of A. Craig Carter Bar No. 3908100 cholub@jackson-carter.com Envelope ID: 99987596 Filing Code Description: Brief Not Requesting Oral Argument Filing Description: Brief of Amicus Curiae Texas Association of Counties Status as of 4/23/2025 1:38 PM CST
Associated Case Party: Texas Association of Counties
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Aaron CraigCarter ccarter@jackson-carter.com 4/23/2025 12:36:31 PM SENT
Associated Case Party: CecileErwinYoung
Allison Collins 24127467 allison.collins@oag.texas.gov 4/23/2025 12:36:31 PM SENT
William Wassdorf 24103022 will.wassdorf@oag.texas.gov 4/23/2025 12:36:31 PM SENT
Associated Case Party: Dallas County, Texas
Chad Dunn 24036507 chad@brazilanddunn.com 4/23/2025 12:36:31 PM SENT
Kembel Brazil 2934050 scott@brazilanddunn.com 4/23/2025 12:36:31 PM SENT
Ann Jordan 790748 ajordan@carterarnett.com 4/23/2025 12:36:31 PM SENT
Edgar Carter 3914300 lcarter@carterarnett.com 4/23/2025 12:36:31 PM SENT