      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-07-00700-CV



 David L. Lakey, M.D., in his Official Capacity as Commissioner of the Texas Department
                           of State Health Services, Appellant

                                                  v.

Floyd Taylor, by his next friend, Melissa Shearer; Gabriela Hernandez, by her next friend,
Melissa Shearer; Zachary Ridgeway, by his next friend, Martin J. Cirkiel; Stanley Jackson,
  by his next friend, Martin J. Cirkiel; Eric Hubert, by his next friend, Martin J. Cirkiel;
  Dennis Rainford, by his next friend, Melissa Shearer; Lidia Huerta, by her next friend,
 Martin J. Cirkiel; Calvin Bearden, by his next friend, Martin J. Cirkiel; Rosie King, by
         her next friend, Martin J. Cirkiel, and Advocacy, Incorporated, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
      NO. D-1-GN-07-000837, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                                           OPINION


               Advocacy, Incorporated and the individual appellees, persons with mental illness who

have been found incompetent to stand trial, sought declaratory and injunctive relief against the

Commissioner of the Texas Department of State Health Services, alleging that the Department’s

policy and practice regarding the provision of competency-restoration treatment to persons who have

been found incompetent to stand trial is unconstitutional.1 In this interlocutory appeal, the

Commissioner contends that the trial court erred in denying his plea to the jurisdiction, filed on the




       1
         Except where it is necessary to talk about the individual appellees separately, we will refer
to the appellees collectively as “Advocacy.”
grounds of sovereign immunity and standing. Because we have determined that sovereign immunity

has been waived and that Advocacy and the individual appellees have standing to bring their

underlying claims, we affirm the trial court’s order denying the plea to the jurisdiction.2


                                          BACKGROUND

               The constitutional claim in this case involves the treatment of criminal defendants

who have been found incompetent to stand trial. If such a defendant is found ineligible for bail, the

trial court is required to commit the defendant to a mental health facility or residential care facility

for a period of up to 120 days “for further examination and treatment toward the specific objective of

attaining competence to stand trial.” See Tex. Code Crim. Proc. art. 46B.073(b) (West Supp. 2008).

If the defendant is charged with a violent offense other than simple assault, the defendant must be

committed to the maximum security unit of a mental-health facility. Id. art. 46B.073(c).

               The Department operates the state mental health hospital system for both forensic

commitments—commitments resulting from a criminal defendant being found incompetent to stand

trial—and civil commitments.3 The legislature appropriates funds to the Department to operate a

designated number of state hospital beds, and it is within the Department’s discretion to determine




        2
         The trial court’s order did grant the plea to the jurisdiction as to the Commissioner’s claim
that Advocacy was not entitled to attorney’s fees. Advocacy did not brief the issue of attorney’s fees
on appeal and we express no opinion regarding that particular portion of the trial court’s order.
       3
         While not at issue in the present case, commitments of an individual acquitted of a crime
by reason of insanity are also considered forensic commitments.

                                                   2
how many of the total state hospital beds will be used for forensic commitments and how many will

be used for civil commitments.4

               In 2005, the number of persons requiring forensic commitments increased

dramatically, exceeding the number of state hospital beds that had been designated for forensic

commitments. To address this problem, the Department created a “clearinghouse list,” which

actually consists of two separate waiting lists: the state hospital waiting list for defendants who have

not been charged with a violent crime, and the maximum security hospital waiting list for defendants

charged with violent crimes. The clearinghouse list makes all forensic commitments to state

hospitals contingent on the availability of space. Individuals on the clearinghouse list must remain

in county jail until a state hospital bed is available before they can be transferred to begin

competency-restoration treatment.

               In September 2007, the Department revised its clearinghouse policy to cap the number

of forensic commitment beds based on the State Hospital Allocation Methodology (SHAM). Under

the SHAM, each county mental health authority has a certain amount of allocated funding,

representing a certain number of state hospital beds. If a county overspends its allocated funds, an

administrative hold will prevent the county from committing more criminal defendants until the

county no longer exceeds its allocated funding.




        4
        In the 2007 legislative session, the legislature appropriated sufficient funds to allow the
Department to operate a total of 2,477 state hospital beds for both forensic and civil commitments.


                                                   3
               Advocacy, a group created to advocate on behalf of individuals with mental illness,5

and a number of individuals who were required to wait in a county jail until a bed was available at

a forensic-commitment facility, brought suit against the Commissioner, seeking declaratory and

injunctive relief. Advocacy asserted that the Department’s “delay in accepting prompt custody and

providing competency restoration treatment” forces persons awaiting forensic commitments to

“spend months improperly incarcerated in jails, without treatment,” and that this delay violates the

due-course-of-law provision of the Texas Constitution. Advocacy requested an injunction requiring

the Department to provide competency restoration treatment within a reasonable period of time, not

to exceed three days, and a declaration that the Department’s current policies, procedures, and

practices regarding the clearinghouse list violate the Texas Constitution.

               The Commissioner filed a plea to the jurisdiction, asserting that neither the individual

appellees6 nor Advocacy had standing to bring their claims and that sovereign immunity barred suit.

The trial court denied the plea to the jurisdiction and this appeal followed.


                                   STANDARD OF REVIEW

               Because this is an appeal from a plea to the jurisdiction, “we will review the face of

appellants’ pleadings to determine whether they show a lack of jurisdiction or whether the pleadings,

       5
          Advocacy is a protection and advocacy organization created under the Protection and
Advocacy for Mentally Ill Individuals (PAMII) Act, 42 U.S.C. §§ 10801-10851 (West 2005), and
authorized to “pursue administrative, legal, and other appropriate remedies to ensure the protection
of individuals with mental illness who are receiving care or treatment in the State.” Id.
§ 10805(a)(1)(B).
       6
          While a number of individual plaintiffs have been substituted, for simplicity we will refer
to the individual plaintiffs at various stages of this litigation, when necessary, as the individual
appellees.

                                                  4
if liberally construed, favored jurisdiction.” Atmos Energy Corp. v. Abbott, 127 S.W.3d 852, 855

(Tex. App.—Austin 2004, no pet.). Whether a trial court has subject-matter jurisdiction is a question

of law we review de novo. Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex. 2007). If the pleadings

do not affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively

demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the

plaintiffs should be afforded the opportunity to amend. Texas Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226-27 (Tex. 2004). If the pleadings affirmatively negate jurisdiction, then a plea

to the jurisdiction may be granted without allowing an opportunity to amend. Id. at 227. Unless

a pled jurisdictional fact is challenged and conclusively negated, it must be taken as true for

purposes of determining subject-matter jurisdiction. City of Austin v. Leggett, 257 S.W.3d 456, 462

(Tex. App.—Austin 2008, pet. denied). In reviewing a plea to the jurisdiction, an appellate court

does not look to the merits of the case but considers only the pleadings and evidence relevant to the

jurisdictional inquiry. Miranda, 133 S.W.3d at 227.


                                          DISCUSSION

Mootness

               As a preliminary matter, the Commissioner argues that this litigation has been

rendered moot by recent policy changes and legislative amendments regarding forensic

commitments. The mootness doctrine limits courts to deciding cases in which an actual controversy

exists. Camarena v. Texas Employment Comm’n, 754 S.W.2d 149, 151 (Tex. 1988). A case

becomes moot if a controversy ceases to exist between the parties at any stage of the legal

proceedings, including the appeal. In re Kellogg Brown & Root, 166 S.W.3d 732, 737 (Tex. 2005).

                                                 5
               During the 2007 legislative session, the legislature set aside additional funding for

pilot programs aimed at reducing the number of offenses caused by persons with mental illness and

amended article 46B of the code of criminal procedure by, among other things, clarifying situations

in which outpatient services could be used in lieu of a forensic commitment, shortening time frames

regarding competency hearings, and removing the requirement that defendants charged with simple

assaults must be admitted to maximum-security hospitals. See Act of May 17, 2007, 80th Leg., R.S.,

ch. 1307, 2007 Tex. Gen. Laws 4385, 4385-95. Also in 2007, the Department revised its policies

so that it no longer limited the number of available state hospital beds that could be used for forensic

commitments, as opposed to civil commitments.

               The Commissioner claims that as a result of these legislative and administrative

changes, the waiting period for criminal defendants slated for forensic commitment has dropped

significantly, and that therefore this appeal is now moot. We disagree. While the Commissioner

asserts that the number of criminal defendants on the clearinghouse list has been reduced, he does

not contend that it has been eliminated. At the hearing on the plea to the jurisdiction, Kenny Dudley,

director of the state hospital system, testified that after the 2007 legislative amendments, the

clearinghouse list contained “approximately 200” criminal defendants and was “pretty stable.”

Dudley further testified that at that time, the average wait for criminal defendants waiting to get into

a maximum-security hospital was approximately six months, and that the average wait for the

remaining state hospitals was “a little less, but probably pretty close to six months.”

               Furthermore, the Department may not moot this appeal by voluntarily abandoning the

policy at issue “without any binding admission or extrajudicial action that would prevent a



                                                   6
recurrence of the challenged action.” Texas Health Care Info. Council v. Seton Health Plan, Inc.,

94 S.W.3d 841, 849 (Tex. App.—Austin 2002, pet. denied); see also Bexar Metro. Water

Dist. v. City of Bulverde, 234 S.W.3d 126, 131 (Tex. App.—Austin 2007, no pet.). Where a policy

is challenged as unconstitutional, voluntary cessation of such policy, without an admission or judicial

determination regarding its constitutionality, is not sufficient to render the constitutional challenge

moot. Del Valle Indep. Sch. Dist. v. Lopez, 863 S.W.2d 507, 511 (Tex. App.—Austin 1993,

writ denied). As a result, we hold that neither the 2007 legislative amendments nor the Department’s

policy changes have rendered this appeal moot.

               Having resolved the mootness issue in Advocacy’s favor, we now turn to the

Commissioner’s contention that the trial court should have granted its plea to the jurisdiction on the

issues of standing and sovereign immunity.


Individual Standing

               The Commissioner argues that because the individual appellees are no longer on the

clearinghouse list and have been transferred to state hospitals for competency-restoration treatment,

their claims are moot and they do not have standing to bring this appeal. While the individual

appellees admit that they are no longer on the Department’s clearinghouse list, they claim to fall

within an exception to the mootness doctrine for claims that are capable of repetition, yet evading

review. See Blum v. Lanier, 997 S.W.2d 259, 264 (Tex. 1999). This exception applies to claims

where (1) the challenged act is of such short duration that the appellant cannot obtain review before

the issue becomes moot and (2) there is a reasonable expectation that the same action will occur

again if the issue is not considered. Id.

                                                  7
               The Commissioner concedes that the challenged act in this case evades review,

stating, “Without doubt, the individual plaintiffs’ claims meet the first prong of this test.” The

Commissioner argues, however, that the individual appellees cannot meet the capable-of-repetition

requirement because the possibility that an individual appellee may be charged with another crime

and again be confined to await a forensic commitment is too speculative to confer standing. See

Williams v. Lara, 52 S.W.3d 171, 184-85 (Tex. 2001) (holding that former inmates did not have

standing to bring constitutional challenge regarding prison policies because court could not assume

that plaintiffs would commit another crime that would lead to incarceration).

               We assume that an average criminal defendant will prevent their own recidivism, as

they are required by law to do. See O’Shea v. Littleton, 414 U.S. 488, 497 (1974) (“We assume that

respondents will conduct their activities within the law and so avoid prosecution and conviction as

well as exposure to the challenged course of conduct said to be followed by petitioners.”); Williams,

52 S.W.3d at 185 (refusing to “assume that [plaintiffs] will commit another crime”). However,

unlike the plaintiffs in Williams or O’Shea, the individual appellees are not ordinary criminal

defendants, but individuals suffering from mental illness who have been found incompetent to stand

trial, and who, in the case of two of the individual appellees, have been arrested, found incompetent,

and ordered to a state hospital for competency-restoration treatment multiple times in the past.

Furthermore, criminal defendants waiting on the Department’s clearinghouse list have not yet been

convicted of a crime. Thus, even if we were to assume that the individual appellees had the ability

to prevent their own recidivism, it does not necessarily follow that they would never again find

themselves charged with a crime and in need of competency-restoration treatment. In light of these



                                                  8
circumstances, we hold that the individual appellees have shown that there is a reasonable

expectation and demonstrated probability that they will again be arrested, found incompetent to stand

trial, and placed on the Department’s clearinghouse list. As a result, the individual appellees have

standing to bring their claim under the capable-of-repetition-yet-evading-review exception to the

mootness doctrine.


Associational Standing

               The Commissioner further contends that Advocacy lacks standing to bring this appeal,

while Advocacy claims that it has both organizational and associational standing.7 In order to

establish standing to bring suit on behalf of its constituents, an association must show that “(a) its

members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect

are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested

requires the participation of individual members in the lawsuit.” Hunt v. Washington State Apple

Adver. Comm’n, 432 U.S. 333, 343 (1977); see also Texas Ass’n of Bus. v. Texas Air Control Bd.,

852 S.W.2d 440, 447 (Tex. 1993) (adopting Hunt test for associational standing).

               Advocacy is a protection and advocacy organization created by federal law under the

Protection and Advocacy for Mentally Ill Individuals (PAMII) Act, 42 U.S.C. §§ 10801-10851

(West 2005), and authorized to “pursue administrative, legal, and other appropriate remedies to

ensure the protection of individuals with mental illness who are receiving care or treatment” in

Texas. Id. § 10805(a)(1)(B). For purposes of the Hunt associational-standing test, constituents of


       7
         In light of our holding that Advocacy has associational standing, we express no opinion
regarding whether Advocacy has organizational standing to bring this appeal.

                                                  9
an organization created under the PAMII Act have been considered by federal courts to be

the functional equivalent of members. See Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1110

(9th Cir. 2003); Doe v. Stincer, 175 F.3d 879, 886 (11th Cir. 1999). The individual appellees fall

within Advocacy’s constituency by virtue of having been examined by a qualified mental health

professional and found to be unable to communicate with defense counsel or understand the criminal

proceedings against them. See 42 U.S.C. § 10802(4) (defining “individual with a mental illness” to

include individuals with “a significant mental illness or emotional impairment, as determined by a

mental health professional”); Tex. Code Crim. Proc. Ann. arts. 46B.022, .024 (West 2006). Because

we have already determined that the individual appellees, members of Advocacy’s constituency,

have standing to sue in their own right, it necessarily follows that the first prong of the associational-

standing test is satisfied.

                To satisfy the second prong of the test, Advocacy must show that the interests it seeks

to protect in bringing this suit are germane to its associational purpose. The purpose of Advocacy’s

enabling statute is “to ensure that the rights of individuals with mental illness are protected” and to

establish organizations, like Advocacy, that will, among other things, “protect and advocate the

rights of such individuals through activities to ensure the enforcement of the Constitution and

Federal and State statutes.” 42 U.S.C. § 10801(b). Under federal law, Advocacy is authorized to

“pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals

with mental illness who are receiving care or treatment in the State.” Id. § 10805(a)(1)(B).

                According to the Commissioner, the interests of the individual appellees and other

criminal defendants awaiting forensic commitment while confined in county jails are not germane



                                                   10
to Advocacy’s purpose because these individuals are not “receiving care or treatment in the State.”

Id. However, the federal regulations related to the PAMII Act define “care or treatment” as:


       services provided to prevent, identify, reduce or stabilize mental illness or emotional
       impairment such as mental health screening, evaluation, counseling, biomedical,
       behavioral and psychotherapies, supportive or other adjunctive therapies, medication
       supervision, special education and rehabilitation, even if only “as needed” or under
       a contractual arrangement.


42 C.F.R. § 51.2. Under this broad definition, a criminal defendant who has been provided with a

mental health screening or evaluation is considered to be receiving care or treatment in the State.

Texas county jails are required to conduct a mental health screening on each detainee upon

admission. See 37 Tex. Admin. Code § 273.5(b) (requiring mental health screening to be

“completed immediately on all inmates admitted”); see also id. § 273.1 (requiring owner or operator

of county jail to “provide medical, mental, and dental services” in accordance with an approved

health services plan) (emphasis added). While county jails do not provide the type of competence-

restoration treatment that individuals awaiting forensic commitment require, they do provide a

minimal level of “care or treatment” that is sufficient to give Advocacy authority to sue on behalf

of individuals confined therein after being found incompetent to stand trial. As a result, Advocacy

meets the second prong of the associational-standing test.

               In order to meet the third and final prong of the associational-standing test, Advocacy

must show that neither the claim asserted nor the relief requested requires the participation of

individual members in the lawsuit. See Hunt, 432 U.S. at 343. “If in a proper case the association

seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be



                                                 11
supposed that the remedy, if granted, will inure to the benefit of those members of the association

actually injured.” Id. Where an association “seeks only prospective relief, raises only issues of law,

and need not prove the individual circumstances of its members to obtain that relief,” it satisfies the

third prong of the associational-standing test. Texas Ass’n of Bus., 852 S.W.2d at 448.

                In the present case, Advocacy seeks only declaratory and injunctive relief to eliminate

the delay between an incompetency finding and the initiation of competency-restoration treatment.8

This remedy, if granted, will inure to the benefit of individuals who, as previously discussed, are

members of Advocacy’s constituency by virtue of having been found incompetent to stand trial and

forced to remain confined in county jails. Advocacy does not seek damages on behalf of its

individual members, but only prospective relief. Furthermore, Advocacy, in alleging that an

incompetent criminal defendant’s constitutional rights are violated any time they are confined in

county jail for over three days before receiving competency-restoration treatment, brings a facial

constitutional challenge that does not require proof of any individual appellee’s circumstances. As

a result, we hold that Advocacy meets the third prong of the test, and therefore has associational

standing to bring this suit.


Sovereign Immunity

                The Commissioner argues that even if Advocacy and the individual appellees have

standing, their suit is barred by sovereign immunity. Absent an express waiver of sovereign

immunity, the State, its agencies, and its officials are generally immune from suit. State v. Holland,


        8
         As previously noted, Advocacy’s request for attorney’s fees was dismissed and Advocacy
has not appealed that dismissal.

                                                  12
221 S.W.3d 639, 643 (Tex. 2007). However, sovereign immunity does not shield a governmental

entity from a suit for equitable relief for a violation of constitutional rights.         See City of

Beaumont v. Bouillion, 896 S.W.2d 143, 148-49 (Tex. 1995) (“[S]uits for equitable remedies for

violation of constitutional rights are not prohibited.”); see also Tex. Const. art. 1, § 29 (“[W]e

declare that everything in this ‘Bill of Rights’ is excepted out of the general powers of government,

and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall

be void.”). The Commissioner contends that sovereign immunity bars the present case because

Advocacy has failed to make allegations that would, if true, constitute the violation of any

recognized constitutional right.

               Sovereign immunity from suit is properly asserted in a plea to the jurisdiction.

Miranda, 133 S.W.3d at 225-26. In reviewing a plea to the jurisdiction on the grounds of sovereign

immunity, a court may not weigh the merits of the claim, County of Cameron v. Brown, 80 S.W.3d

549, 555 (Tex. 2002), but may consider the plaintiffs’ pleadings and the evidence pertinent to the

jurisdictional inquiry in order to determine whether the particular facts of the case come within the

scope of the alleged waiver. State Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001)

(holding that “mere reference to the Tort Claims Act” without evidence that claims actually implicate

Tort Claims Act is insufficient to establish jurisdiction).

               In attempting to show that Advocacy’s claim does not fall within the scope of a

constitutional violation, the Commissioner argues that the due-course-of-law provision of the Texas

Constitution does not give a forensic detainee the right to be transferred from county jail to

competency-restoration treatment within three days. To decide this issue would require us to venture



                                                  13
too far into the merits of the underlying case, and we decline to do so. See Bland Indep. Sch.

Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (holding that plea to jurisdiction does not “authorize

an inquiry so far into the substance of the claims presented that plaintiffs are required to put on their

case simply to establish jurisdiction”). We will instead look to the substance of the pleadings,

construed liberally in favor of the plaintiffs, see Miranda, 133 S.W.3d at 226, to determine whether

Advocacy has alleged a constitutional claim.

                In support of its due-course-of-law claim, Advocacy asserts that persons who have

been found incompetent to stand trial, but who have not been convicted of any crime, have a liberty

interest in their freedom from incarceration and in timely receiving restorative treatment, citing Mink,

322 F.3d at 1121-22 (holding that refusal to admit incapacitated criminal defendants into

competency-restoration treatment in timely manner violates substantive due process) and

Jackson v. Indiana, 406 U.S. 715, 738 (1972) (holding that, to avoid violating due process, criminal

defendant confined after being found incompetent to stand trial “cannot be held more than the

reasonable period of time necessary” to determine whether he can regain competency). The

Department, while arguing that Mink has been superceded, agrees in its reply brief that under

Jackson, forensic detainees have a liberty interest in not being placed in forensic detention

indefinitely. As Advocacy points out in its brief, the director of the state hospital system testified

at the plea to the jurisdiction that under the Department’s SHAM policy, persons from counties that

have been placed on an administrative hold could wait in jail indefinitely for a forensic commitment.

In light of the authorities cited by Advocacy, as well as forensic detainees’ recognized liberty interest




                                                   14
in not being incarcerated indefinitely, we cannot say that Advocacy’s claims are so far afield of any

recognizable constitutional right as to fall outside the scope of a waiver of sovereign immunity.

               Without determining whether Advocacy’s claims will ultimately succeed, we hold

that the allegations are sufficient to invoke the waiver of sovereign immunity for constitutional

claims. See Bouillon, 896 S.W.2d at 148-49. Accordingly, the trial court did not err in denying the

Commissioner’s plea to the jurisdiction on the basis of sovereign immunity.9


                                          CONCLUSION

               Because we have determined that the trial court has subject-matter jurisdiction over

this suit, we affirm the trial court’s order denying the Commissioner’s plea to the jurisdiction.



                                               __________________________________________

                                               Diane M. Henson, Justice

Before Justices Patterson, Waldrop and Henson

Affirmed

Filed: November 6, 2008


       9
           The Commissioner also argues that even if Advocacy had raised a constitutional claim,
injunctive relief would be improper in this case because it would interfere with the imposition of
criminal penalties, citing State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994) (holding that equity
court could not declare criminal statute unconstitutional and enjoin its enforcement). However,
unlike the plaintiffs in Morales, Advocacy does not seek to enjoin the enforcement of any penal
statute, but rather the Department’s policy and practice regarding the transportation and treatment
of criminal defendants who have been found incompetent to stand trial. The fact that Advocacy’s
claims relate to the constitutional rights of criminal defendants does not place them outside a civil
court’s equity jurisdiction. See id. at 945-46; Passel v. Fort Worth Indep. Sch. Dist., 440 S.W.2d 61,
64 (Tex. 1969) (injunctive relief was within equity jurisdiction where plaintiffs did not seek to
prevent enforcement of criminal statute, but rather enforcement of agency regulation implementing
that statute).

                                                 15
