ACCEPTED 1-15-00075CV FIRST COURT OF APPEALS HOUSTON, TEXAS 5/6/2015 3:02:11 PM CHRISTOPHER PRINE CLERK
1-15-00075-CV
FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS IN THE COURT OF APPEALS 5/6/2015 3:02:11 PM CHRISTOPHER A. PRINE FOR THE FIRST DISTRICT Clerk
HOUSTON, TEXAS
IN RE COMMITMENT OF J.S.T.
On Appeal from Cause No. 14-CV-1323 nd In the 122 Judicial District Court of Galveston County, Texas; Honorable Judge John Ellisor
APPELLEE’S BRIEF
Barry C. Willey SBN 00788670 Galveston County Legal Department 722 Moody, 5th Floor Galveston, Texas 77550 (barry.willey@co.galveston.tx.us) (409) 770-5562 (409) 770-5560 (Fax) Counsel for Galveston County Health District
APPELLEE REQUEST ORAL ARGUMENT
i IDENTITY OF PARTIES AND COUNSEL
Appellant J.S.T.
Trial Judge Hon. John Ellisor 122nd Judicial District Court Trial Counsel for :
J.S.T. David P. Walker 1919 Sealy Avenue Galveton, Texas 77550 Tel: (409)762-8960 Fax: (409) 762-1755
Galveston County Health District: Paul Ready Barry C. Willey Galveston County Legal Department 722 Moody, Fifth Floor Galveston, Texas 77550 Tel:(409)770-5562 Fax:(409)770-5560
Appellate Counsel for:
J.S.T.’s: Mark Aronowitz P.O.Box 1201 Texas City, Texas 77592-1201 Tel: 713-894-3857 markaronowitz@hotmail.com
Galveston County Health District: Barry C. Willey Paul Ready Galveston County Legal Department 722 Moody, Fifth Floor Galveston, Texas 77550 Tel:(409)770-5562 Fax:(409)770-5560 barry.willey@co.galveston.tx.us
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................. ii
TABLE OF CONTENTS .............................................................................. iii
TABLE OF AUTHORITIES ...........................................................................v
ISSUES PRESENTED ................................................................................. vii
STATEMENT OF THE CASE .................................................................... vii
STATEMENT OF THE FACTS .....................................................................2
STANDARD OF REVIEW .............................................................................4
ARGUMENT AND AUTHORITIES .............................................................5
I. THE STATE MET ITS BURDEN OF PROOF ON ALL ELEMENTS OF ITS ACTION FOR INVOLUNTARY COMMITMENT. (ISSUES ONE RESTATED) ..............................................................................................................5
A. The State Showed by Clear and Convincing Evidence That The Patient, As Result of The Communicable Disease, Was Likely to Cause Harm to Himself. .............................................................................................7
B. The State Showed by Clear and Convincing Evidence that the Patient Would, If Not Treated, Continue to Endanger Public Health. ............9
1. A Majority of J.T.'s Close Contacts Tested Positive for TB…..9
2. J.T.'s Failure to Continue Prescribed Treatment Could Result in a Drug Resistant Strain of TB……………………..10
iii II. THE TRIAL COURT DID NOT ERR IN REQUIRING THE APPELLANT PATIENT TO PARTICIPATE IN THE TRIAL SOLELY THROUGH VIDEO TELECONFERENCING. (Issues Two Restated) ...................................................11
A. The Trial Court Followed the Proper Procedure Under §81.169 Tex. Health &Safety Code.............................................................................12
B. Attending Trial Through Video Conferencing Did Not Violate J.T.’s Due Process Rights. .............................................................................13
III. CONCLUSION AND PRAYER FOR RELIEF ...........................................17 Certificate Of Service ....................................................................................19
Certificate of Compliance ..............................................................................19
APPENDIX………………………………………………………………..20
1. §81.169, TEX. HEALTH & SAFETY CODE 2. §81.173, TEX. HEALTH & SAFETY CODE
iv TABLE OF AUTHORITIES
CASES Federal Heller v. Doe by Doe, 509 U.S. 312 (1993) ............................................................15 Mathews v. Eldridge, 424 U.S. 319 (1976). ............................................................14 U.S.v. Baker, 45 F.3d 837 (1995) ..................................................................... 14, 15 State Assoc. Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276 (Tex.1998) ..........5 Cardenas v. State, 30 S.W.3d 384 (Tex.Crim.App.2000) .........................................6 Daniel v. Falcon Interest Realty Corp .......................................................................5 Ex parte Granviel, 561 S.W.2d 503 (Tex.Crim.App.1978) .....................................14 Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41 (Tex.1998) .....................................................................................5 In re Moers, 104 S.W.3d 609 (Tex.App.-Houston [1st Dist.] 2003, no pet.) ............5 Ortiz v. Jones, 917 S. W. 2d 770 (Tex.1996) ............................................................5 State ex rel. S.W., 356 S.W.3d 576 (Tex. App.-Texarkana 2011) ............................4 State v. Addington, 555 S.W.2d 569 (Tex. 1979) .....................................................4 State v. K.E.W., 315 S.W.3d 16 (Tex. 2010) ........................................................4, 5
Statutes §574.202(a) TEX. HEALTH & SAFETY CODE ...................................................12 §81.152, TEX. HEALTH & SAFETY CODE...........................................................6 §81.169, TEX. HEALTH & SAFETY CODE.............................................. 4, 11, 12 §81.169(c), TEX. HEALTH & SAFETY CODE, ............................................ 11, 13 § 81.169(d), TEX. HEALTH & SAFETY CODE ...................................... 11, 13, 16 §81.169 (i), TEX. HEALTH & SAFETY CODE, ............................................ 11, 13 §81.173, TEX. HEALTH & SAFETY CODE.......................................................6, 7 v Rules TEX.R.APP. P.38.1(i) ................................................................................................6
vi ISSUES PRESENTED
ISSUE ONE RESTATED The Health District met its burden of proof on all the elements of its cause of action for involuntary commitment.
ISSUE TWO RESTATED The trial court properly allowed the Appellant to participate in the trial through video teleconferencing.
STATEMENT OF THE CASE
Nature of the Case:
On December 17, 2014, the Galveston County Health District began proceeding to take J.T. into protective custody for the treatment of tuberculosis (“TB”), by filing its application for temporary protective custody. The case proceeded to a trial to consider the issuance of Orders for Extended Management of a Person with a Communicable Disease under Tex. Health and Safety Code, §81.151, et seq.
Trial by Jury:
On January 12-13, 2015, the trial was conducted in the presence of the jury with the Honorable Judge John Ellisor presiding.
Trial Court Disposition:
vii The jury returned a unanimous verdict allowing the Court to issue an order of commitment for extended management of a person with communicable disease.
STATEMENT OF THE FACTS
J.T. (the “Patient”) found himself in an unfortunate situation in which he
was a carrier of active tuberculosis (“TB”) but he unfortunately refused to
acknowledge that fact and complete the necessary treatment.
J.T.’s odyssey the through Houston-Galveston medical system began when
he sought treatment at Clear Lake Regional Hospital.1 The Patient presented to the
hospital with active TB and a cavitary lesion on his chest X-ray.2 This was
reported to Harris County, which began treating J.T.’s TB. Unfortunately, J.T.
only received 10 days of the prescribed six month treatment in May 2014 from
Harris County, before he disappeared.3
J.T. popped up next on July 7, 2014, when the Galveston County Health
District (GCHD) was notified that J.T. was in the Galveston County Jail. The jail
had been notified by Harris County that J.T. had a positive culture for TB and
needed to receive treatment.4 J.T. failed to reveal to the Jail staff that he had
1 RR Vol 2, p. 12, L.16-20; (RR V2 12/16-20) 2 Id. 3 RR V2 13/14-16. 4 RR V2, 14/7-19. 2 started treatment for TB in May.5 In early July he once again began treatment for
TB.6 However, in August he began to refuse treatment and did not start taking
treatment against until early September.7 Since he was scheduled for release from
the Galveston County Jail near that time, Harris County was contacted so they
could continue to provide medication.8 Harris County was unable to locate the
defendant once he was released from the Galveston County Jail.9
The next contact with JT did not occur until November 2014, when GCHD
encountered him at a mission project called “Our Daily Bread” that feeds the
homeless in the City of Galveston.10 GCHD offers blood tests to the people served
by the facility and J.T. asked for a test.11 The blood test indicated a positive result
for TB infection.12
The GCHD district determined that as a result of the positive test and J.T.’s
history, that he be restarted on medication.13 At this time J.T. was ordered to begin
treatment, informed of what was required of him, and informed him of the
necessity to continue treatment for a period that could last six or more months. 14
5 RR V2, 14/2-3. 6 RR V2, 14/11-25. 7 RR V2, 15/5-9. 8 RR V2, 15/10-15. 9 RR V2, 15/16-17. 10 RR V2, 15/23-16/8. 11 RR V2, 16/2-8. 12 RR V2, 16/15-20. 13 RR V2, 17/1-14. 14 RR V2, 17/23-18/4 and Exhibit A, (RR V4, GC0004-GC0006). 3 He was also informed that failure to follow the order could result in proceedings
being filed to obtain an order for protective custody.15
It was only seven days before J.T. once again stopped treatment.16 He was
not located again until mid-December, when he landed back in the Galveston
County Jail.17
STANDARD OF REVIEW
Commitment of an individual for the management of a communicable
disease is conducted under an evidence standard of clear and convincing. TEX.
HEALTH AND SAFETY CODE ANN. §81.169 (Vernon 2007). Since the State’s
burden is clear and convincing evidence, the reviewing court applies a heightened
standard of review. State ex rel. S.W., 356 S.W.3d 576 (Tex. App.-Texarkana
2011)
This is the same standard that is used for other civil cases for which there are
constitutional implications which require a due process standard greater than the
preponderance standard. See State v. Addington, 555 S.W.2d 569, 570 (Tex. 1979);
State v. K.E.W., 315 S.W.3d 16 (Tex. 2010).
The First Court of Appeals well-articulated the standard of review as
follows...
15 RR V4, GC0004-GC0006. 16 RR V2, 22/1-11. 17 RR V2, 23/13-16. 4 [w]hen a party without the burden of proof at trial challenges the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor. Assoc. Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998). If there is any evidence of probative force to support the finding, i.e., more than a mere scintilla, we will overrule the issue. Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998). In our review of the factual sufficiency of the evidence, we must consider and weigh all of the evidence, and we will set aside a verdict only if the finding is so against the great weight and preponderance of the evidence, that it is clearly wrong and unjust. Ortiz v. Jones, 917 S. W. 2d 770, 772 (Tex.1996). We review a trial court's conclusions of law de novo. In re Moers, 104 S.W.3d 609, 611 (Tex.App.-Houston [1st Dist.] 2003, no pet.).
Daniel v. Falcon Interest Realty Corp, 190 S.W.3d 177, 184 (Tex.App.-
Houston [1st Dist] 2005, no writ).
As set out in K.E.W., “[w]e resolve disputed fact questions in favor of the
finding if a reasonable factfinder could have done so, and we disregard all contrary
evidence unless a reasonable factfinder could not have done so.” 315 S.W.3d at
20. (citations omitted)
ARGUMENT AND AUTHORITIES
I. The State met its burden of proof on all elements of its action for involuntary commitment. (Issue One Restated)
The Communicable Disease Prevention and Control Act, codified in Chapter
81, Texas Health and Safety Code, is a statute that provides for numerous control
5 measures to be made available for use in protecting public health, including
investigation, control, detention, and quarantine. In situations where a local health
authority learns that an individual is reasonably suspected of a having a
communicable disease that presents a danger to the public health, the statute sets
out the requirements an application for a court order for the management of that
person. See §81.152, TEX. HEALTH & SAFETY CODE (Vernon 2007).
For an order of extended management of a person, it must be shown from
clear and convincing evidence that :
(1) the person is infected with a communicable disease that presents a threat to the public health and, if the application is for inpatient treatment, has failed to follow the orders of the health authority or department; (2) as a result of that communicable disease the person: (A) is likely to cause serious harm to himself; or (B) will, if not examined, observed, isolated, or treated, continue to endanger public health; and (3) the person's condition is expected to continue for more than 90 days. §81.173, TEX. HEALTH &SAFETY CODE (Vernon 2007).
Although the patient claims that there was insufficient evidence to obtain an
affirmative finding on all of the elements of the action, he has only briefed the
issues of actual danger to himself or to that of the public health.18 An
appellant waives an issue on appeal if he fails to adequately brief that issue by
presenting supporting arguments and authorities. See TEX.R.APP.
P.38.1(i); Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App.2000). The 18 Appellant’s Brief, p.16 6 appellant neither challenges the diagnosis, nor whether the condition is expected to
last for more than 90 days.
A. The State Showed by Clear and Convincing Evidence That The Patient, As Result of The Communicable Disease, Was Likely to Cause Harm to Himself.
While the Patient does not dispute the diagnosis of TB in his brief, he does
dispute that he would be danger to himself or others as a result of the disease. It is
undisputed that J.T. had been diagnosed with TB19 and had been prescribed a
course of treatment for the disease. The authorizing statute only requires it be
proven that as a result of the disease, the patient is either likely to cause harm to
himself, or will, if not treated, continue to endanger the public health.20
Being infected with TB will likely cause harm to the infected person. TB is
a very complex disease.21 It is very slow growing and can spread to any organ of
the body.22 J.T. initially went to the hospital for chest pain. 23 They discovered a
cavitary lesion on his lung. While a cavity shown on a chest x-ray is not definitive
for a diagnosis of TB, it is top on the list of things to rule out because of its
contagious nature.24 The cavitary lesion is essentially a hole in the lung where the
19 RR V4, GC0007-GC0010 (Applicant’s Exhibit B), RR V2, 49/7-50/7 20 §81.173, Tex. Health & Safety Code. 21 RR V2, 42/13-19. 22 RR V2, 42/2-12. 23 RR V2, 42/2-12. 24 RR V2, 52/24-53/8. 7 tuberculosis bacteria began to eat away at the tissue.25 In J.T.’s case this finding
led to further testing and the final diagnosis of TB. The infection generally starts
in the lungs and spreads from there.26 Once a person has active TB, he cannot
likely fight off the disease without treatment.27
Furthermore, the evidence is undisputed that TB, if left untreated can lead to
death of the infected person.28 J.T. incorrectly asserts in his brief that he did not
have observable ill effects from his condition.29 The testimony indicates that J.T.
had a cavitary lesion and chest pain in the spring when he was first diagnosed with
TB;30 regardless, a lack of observable ill effects is not material, since probably half
of the patients who have active TB do not exhibit outward symptoms such as
coughing up blood or night sweats.31
It is axiomatic that a person can be harmed even if they do not die; however,
J.T. reasons in his brief that he would not be harmed because when he began to
feel ill he would “seek appropriate medical attention and would not let his
condition get to the point where he was in danger of dying.”32 In this case, even if
the court does not consider the damaged lung tissue of the cavitary lesion as harm
25 RR V2, 82/4-7. 26 RR V2, 42/9-12. 27 RR V2, 29/11-22. 28 RR V2, 42/4-12, 50/8-10. 29 Appellant’s Brief, p. 17 30 RR V2, 38/5-7. 31 RR V2, 38/7-13. 32 Appellant’s Brief, p. 17, 8 to a person, it is just a matter of time until the infection becomes more serious,
damaging others organs and leading to death.
B. The State Showed by Clear and Convincing Evidence that the Patient Would, If Not Treated, Continue to Endanger Public Health.
J.T. clearly stated in his trial that he did not believe that he had TB. 33 J.T.’s
continual denial of his condition and the seriousness of it results in many potential
problems, such as exposing others to the bacterium, and not completing the
treatment regime, possibly leading to a drug resistant strain of TB.
1. A Majority of J.T.’s Close Contacts Tested Positive for TB.
Eileen Dawley, the Tuberculosis Program Manager for the GCHD and
registered nurse, testified that indicated that out of the seven close contacts J.T.
had, four of them tested positive for the TB infection.34 This clearly shows that
J.T. was capable of spreading his infection, and had in all likelihood done so, to a
majority of his close contacts. Harlan Guidry, M.D., M.P.H., is the County Health
Authority and the Director of GCHD. Dr. Guidry testified “yes” in response to the
direct question, “[i]n your opinion is it possible for [J.T.] to transmit his
tuberculosis to others?”35 The opinion offered by Dr. Guidry, like all in this case,
33 RR V3, 17/23-25. 34 RR V2, 24/19-24. 35 RR V2, 56/12-14. 9 was made with a reasonable degree of medical probability.36 This undermines the
appellant’s contention that the best evidence was that he was “probably”
contagious.
2. J.T.’s Failure to Continue the Prescribed Treatment Could Result in a Drug Resistant Strain of TB.
Compounding the threat J.T. spreading the tuberculosis bacterium, is the
very real threat that J.T. could develop a drug resistant strain of TB. It generally
takes six to nine months to treat TB, sometimes longer.37 When the TB organism
becomes resistant to drugs that are now typically available to treat it, then that
strain is considered drug-resistant.38
Lapses in treatment lead to drug resistance TB.39 For example, treatment for
TB lasts six to nine months of continuous everyday treatment. Any lapse in the
treatment, such as missing medication or not finishing the course of treatment,
allows the organisms in the body to develop a resistance.40 And if a person
develops drug resistant TB, and he spreads that to others, he is spreading his own
drug resistant strain, thereby endangering the public health.
36 RR V2, 43/8-19. 37 RR V2, 44/1-3. 38 RR V2, 43/20-25. 39 RR V2, 44/8-10. 40 RR V2, 44/8-17. 10 J.T. has an established pattern of not completing his treatment. He had
stopped treatment three times before these proceedings were filed.41 These are the
types of actions that this procedure is designed to prevent.
II. The Trial Court Did Not Err in Requiring the Appellant Patient to Participate in the Trial Solely Through Video Teleconferencing. (Issues Two Restated)
The Health& Safety Code sets out provisions relating to a hearing on an
application for a court order for the management of a person with a communicable
disease. §81.169, General Provisions Relating to Hearing (Vernon 2007).
Under these provision the trial may be held at any suitable location and that
it should be a in a physical setting that is not likely to have a harmful effect on the
public or person.42 The Health authority is tasked with advising the court o the
appropriate control measures to prevent transmission of the communicable disease
alleged in the application.43 Subsection (d) entitles the patient to be present at the
hearing, unless that right is waived.44
Notwithstanding Subsection (d), if the health authority advises the court that the person must remain in isolation or quarantine and that exposure to the judge, jurors, or the public would jeopardize the health and safety of those persons and the public health, a judge may order that a person entitled to a hearing may not appear in person and
41 RR V2, 24/25-25/3. 42 §81.169(a), Tex. Health &Safety Code (Vernon 2007). 43 §81.169(c), Tex. Health &Safety Code (Vernon 2007). 44 §81.169(d), Tex. Health &Safety Code (Vernon 2007). 11 may appear only by teleconference or another means that the judge finds appropriate to all the person to speak, to interact with witnesses, and to confer with the person’s attorney.
§81.169(i), Tex. Health &Safety Code (Vernon 2007). The appellant incorrectly relies on §574.202(a) of the Health & Safety Code,
which governs the procedures used when a physician or mental health professional
is testifying by closed circuit video teleconferencing in a mental health proceeding.
The appellant also asserts that proper notice was not given and wrongly claims that
full motion video was not used.45
A. The Trial Court Followed the Proper Procedure Under §81.169 Tex. Health &Safety Code.
On January 9, 2015, counsel for J.T. filed a motion with the Court requesting
that the Health Authority to advise the court on appropriate control measures, and
if necessary to have J.T. appear by teleconference. In this motion it was related
that J.T. did not believe he has TB and that if he does have it, he does not believe
he is contagious.46 The motion went further to indicate that J.T. was disruptive
during a prior hearing and trial counsel for J.T. believed that he may be disruptive
in front of a jury.47 The main concern was whether J.T. would keep his mask on if
he became agitated during the trial.48
45 Appellant’s Brief, p19-20. 46 CR V4, p 53. 47 CR V4, p 53. 48 CR V4, p 53. 12 Prior to the beginning of trial and in accordance with the statute, a hearing
was held to determine the necessity of having the patient attend the trial through
video teleconferencing.49 The Galveston County Health Authority, Harlan Guidry,
M.D., M.P.H, testified J.T. must remain in isolation or quarantine and that
exposure to the Judge, jurors or public would jeopardize the safety of those persons
and the public health.50 The Court also took judicial notice of the probable cause
hearing with J.T. in which he threatened to leave the courtroom without permission
of the court.51
Counsel for J.T. did not object to having J.T. attend trial through video
means. The trial court followed the requirements of the proper statute and
correctly ordered J.T. to attend trial through video conferencing.
B. Attending Trial Through Video Conferencing Did Not Violate J.T.’S Due Process Rights.
Appellant challenges the trial court’s actions in requiring him to participate
in the trial by video teleconferencing, asserting that it violated his due process
rights.52 As previously discussed, the trial court followed the state required
procedural requirements for commitment hearings for persons with communicable
diseases. However, since he asserts that his due process rights were violated by the
49 RR V2, 4/2-14, TEX. HEALTH & SAFETY CODE, §81.169(c), (d) and (i). 50 RR V2, 4/23-5/23. 51 RR V2, 5/24-6/11. 52 Appellant’s Brief, 19-20. 13 procedure accorded to him by the statute, he is essentially challenging the
constitutionality of the statute. Whenever a court is confronted with an attack upon
the constitutionality of a statute, it presumes that the statute is valid and that the
Legislature has not acted unreasonably or arbitrarily. Ex parte Granviel, 561
S.W.2d 503, 511 (Tex.Crim.App.1978). The burden rests upon the individual who
challenges the statute to establish its unconstitutionality. Id.
For the constitutional analysis, in Mathews v. Eldridge the United States
Supreme Court identified three factors to consider in determining the procedural
safeguards due a person whose interests are adversely impacted by government
actions:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.
424 U.S. 319, 335 (1976). The Fifth Circuit applied this analysis to an
involuntary commitment in a mental health case in which video conferencing was
utilized. U.S.v. Baker, 45 F.3d 837 (1995). In Baker an inmate serving time in
federal prison for bank robbery was subject to an involuntary commitment for
mental health reasons so he could be treated in a proper facility for his mental
disease or defect. 45 F.3d at 841. The court rejected the patients contentions that 14 his constitutional rights were violated and held that the commitment hearing
conducted using video conferencing did not infringe upon his constitutional or
statutory rights. Id.
The first factor to address is the nature of the interest impacted by the
governmental action. An involuntary commitment of an individual is a substantial
impact on a patient’s liberty. However, while as massive as the impact is, it is not
as great as the impact inherent in criminal imprisonment. 45 F.3d at 844. Since a
civil commitment is not punitive in nature it is not as onerous as a criminal
imprisonment. Baker,45 F.3d at 844, citing, Heller v. Doe by Doe, 509 U.S. 312,
324 (1993). Furthermore, a commitment for the treatment of TB lasts only as long
as is necessary for the treatment.
The second factor addresses the risk of erroneous deprivations of such
interest through the procedures used and the probable value, if any, of additional or
substitute safeguards. The risk of erroneous deprivations is low in J.T.’s case. It is
this factor that best illustrates the differences between a civil commitment hearing
of this type and a criminal prosecution. “The goal of a criminal proceeding is to
uncover the truth by examining rigorously the reliability of conflicting evidence
presented and then engaging in extensive fact finding.” Baker, 45 F.3d at 844.
However, in J.T’s case the determination by the court is essentially medical, i.e.,
whether or not an individual has a disease that must be treated in an inpatient
15 setting. While there are some factual issues involved in this case, such as whether
prior treatment plans of the Health Authority were followed, the essential question
remains medical.
As noted by J.T.in his brief, the extensive rights accorded a criminal
defendant by the Sixth Amendment are not required to ensure against erroneous
deprivations of liberty at civil commitment hearings. Id. Nevertheless, J.T.
retained his right to counsel, his ability to confront witnesses, and was able to see
the courtroom through the two way video feed and participate in the trial, even
giving his testimony.53
The third factor addresses the government’s interest in utilizing the
procedures and the impacts if an alternative is used. This factor is statutorily
addressed by the requirement that the Health Authority advise the court on the
risks to the persons at the trial and the general public.54 The trial court followed
the statutory guidelines for conducting the trial without objection from J.T. ‘s
counsel during the trial. The Health Authority testified that J.T. must remain in
isolation or quarantine and that exposure to the Judge, jurors or public would
jeopardize the safety of those persons and the public health.55 This risk was
compounded by J.T.’s non-compliant behavior during his probable cause hearing
53 RR V2, 4/2-7, V3/1-23/7 54 Tex. Health & Safety Code, §81.169(d) 55 RR V2, 4/23-5/23. 16 and his threats to walk out of the courtroom. J.T. could not be trusted to stay in the
courtroom and could not be trusted to keep his mask on56. The trial court evaluated
the risks involved and properly determined that the best solution was to have the
trial in the courtroom and utilize a video conference technology.
J.T. has not shown how the court’s order to conduct the trial by video
conference, with the patient at a remote location, caused him harm. The
Appellant’s brief admits that J.T.’s legal representation was effective, and merely
states it would have been better to communicate with Appellant whenever counsel
desired instead of during court ordered breaks.57 During trial there was only one
break requested for attorney-client communications and there were no times in the
trial when a break for attorney-client communications was requested and refused.58
The Appellant suffered no impingement of his rights by participating in the trial
through video conference.
III. CONCLUSION AND PRAYER FOR RELIEF
The State proved each element necessary to issue an order of commitment
for extended management of a person with a communicable disease and did so by
clear and convincing evidence for each element. The potential for harm to the
56 CR, p.53; RR V2, 4/25-6/9. 57 Appellant’s Brief, p. 21. 58 RR V2, 31/21-32/10. 17 general public caused by a drug resistant strain of TB is immense. J.T. had a
proven history of failing to complete prescribed treatments and was still in denial
that he needed to be treated. The Health Authority gave him ample opportunity to
comply with its orders to no avail. The situation was a recipe for a catastrophe if
the Health Authority did not commit J.T. for involuntary treatment.
Procedurally, J.T. was properly required to participate in his trial by video
conference. He had shown his unwillingness to cooperate during a prior hearing,
and the potential harm which he could have caused by not cooperating was too
great a threat to the health and safety of the other participants at trial and the
general public. J.T’s due process rights were safeguarded and the procedural
statutes were followed.
WHEREFORE, PREMISES CONSIDERED, Appellee prays that this court
affirm the order of the trial court.
Respectfully Submitted,
/s/ Barry C. Willey Barry C. Willey State Bar No. 00788670 Galveston County Legal Department Galveston County Courthouse 722 Moody, Fifth Floor Galveston, TX 77550 Tel: (409) 770-5562 Fax: (409) 770-5560
18 Certificate Of Service
This is to certify the on May 6, 2015, a true and correct copy of the above and foregoing document was served on the counsel as follows:
Mark Aronowitz P.O.Box 1201 Texas City, Texas 77592 email: markaronowitz@hotmail.com
/s/ Barry C. Willey
Certificate of Compliance
I certify that the foregoing document contains 3929 words. The text is in Times New Roman 14 point font and the footnotes are in Times new Roman 12 point font. /s/ Barry C. Willey
19 APPENDIX
1. §81.169 TEX. HEALTH & SAFETY CODE
2. §81.173 TEX. HEALTH & SAFETY CODE
20 § 81.169. General Provisions Relating to Hearing, TX HEALTH & S § 81.169
Vernon's Texas Statutes and Codes Annotated Health and Safety Code (Refs & Annos) Title 2. Health Subtitle D. Prevention, Control, and Reports of Diseases Chapter 81. Communicable Diseases Subchapter G. Court Orders for Management of Persons with Communicable Diseases
V.T.C.A., Health & Safety Code § 81.169
§ 81.169. General Provisions Relating to Hearing
Effective: September 1, 2007 Currentness
(a) Except as provided by Subsection (b), the judge may hold a hearing on an application for a court order for the management of a person with a communicable disease at any suitable location in the county. The hearing should be held in a physical setting that is not likely to have a harmful effect on the public or the person.
(b) On the request of the person or the person's attorney, the hearing on the application shall be held in the county courthouse.
(c) The health authority shall advise the court on appropriate control measures to prevent the transmission of the communicable disease alleged in the application.
(d) The person is entitled to be present at the hearing. The person or the person's attorney may waive this right.
(e) The hearing must be open to the public unless the person or the person's attorney requests that the hearing be closed and the judge determines that there is good cause to close the hearing.
(f) The Texas Rules of Evidence apply to the hearing unless the rules are inconsistent with this chapter.
(g) The court may consider the testimony of a nonphysician health professional in addition to medical testimony.
(h) The hearing is on the record, and the state must prove each element of the application criteria by clear and convincing evidence.
(i) Notwithstanding Subsection (d), if the health authority advises the court that the person must remain in isolation or quarantine and that exposure to the judge, jurors, or the public would jeopardize the health and safety of those persons and the public health, a judge may order that a person entitled to a hearing may not appear in person and may appear only by teleconference or another means that the judge finds appropriate to allow the person to speak, to interact with witnesses, and to confer with the person's attorney.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 81.169. General Provisions Relating to Hearing, TX HEALTH & S § 81.169
Credits Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 2001, 77th Leg., ch. 1420, § 10.0001, eff. Sept. 1, 2001; Acts 2007, 80th Leg., ch. 258, § 14.12, eff. Sept. 1, 2007.
Editors' Notes
REVISOR'S NOTE
2010 Main Volume
The source law refers to the “rules of evidence applicable in civil litigation.” The revised law omits this provision and substitutes a reference to the Texas Rules of Civil Evidence because those rules are the rules applicable to civil litigation.
V. T. C. A., Health & Safety Code § 81.169, TX HEALTH & S § 81.169 Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 § 81.173. Order for Extended Management, TX HEALTH & S § 81.173
Vernon's Texas Statutes and Codes Annotated Health and Safety Code (Refs & Annos) Title 2. Health Subtitle D. Prevention, Control, and Reports of Diseases Chapter 81. Communicable Diseases Subchapter G. Court Orders for Management of Persons with Communicable Diseases
V.T.C.A., Health & Safety Code § 81.173
§ 81.173. Order for Extended Management
Currentness
(a) The jury, or the judge if the right to a jury is waived, may determine that a proposed patient requires court-ordered examination, observation, isolation, or treatment only if the jury or judge finds, from clear and convincing evidence, that:
(1) the person is infected with a communicable disease that presents a threat to the public health and, if the application is for inpatient treatment, has failed to follow the orders of the health authority or department;
(2) as a result of that communicable disease the person:
(A) is likely to cause serious harm to himself; or
(B) will, if not examined, observed, isolated, or treated, continue to endanger public health; and
(3) the person's condition is expected to continue for more than 90 days.
(b) The jury or judge must specify each criterion listed in Subsection (a)(2) that forms the basis for the decision.
(c) The court may not make findings solely from the affidavit of medical evaluation, but shall hear testimony. The court may not enter an order for extended management unless appropriate findings are made and are supported by testimony taken at the hearing. The testimony must include competent medical testimony.
(d) An order for extended management shall state that examination, treatment, and surveillance are authorized for not longer than 12 months.
(e) The department, with the cooperation of the head of the facility, shall submit to the court a general program of treatment to be provided. The program must be submitted not later than the 14th day after the date the order is issued and must be incorporated into the court order.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 81.173. Order for Extended Management, TX HEALTH & S § 81.173
Credits Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 242, § 12, eff. May 23, 1997.
V. T. C. A., Health & Safety Code § 81.173, TX HEALTH & S § 81.173 Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2