                                                                                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
