Opinion issued September 27, 2012




                                    In The

                           Court of Appeals
                                For The

                       First District of Texas
                        ————————————
                          NO. 01-10-01077-CV
                        ———————————
 RICHARD STEPHEN CALKINS, INDIVIDUALLY AND AS AGENT IN
   FACT FOR MARY OLIVE CALKINS, AND MICHAEL EASTON,
                       Appellants
                                     V.
                          JANE DOE, Appellee



                 On Appeal from the 127th District Court
                          Harris County, Texas
                    Trial Court Case No. 2010-74071



                       MEMORANDUM OPINION
      Appellants Richard Stephen Calkins and Michael Easton bring this

accelerated interlocutory appeal of (1) the trial court’s temporary injunction

restricting appellants from “disseminating, publishing, filing, serving or otherwise

permitting the distribution of [appellee] Jane Doe’s medical records or referring to

same, or Jane Doe’s real name and describing her as mentally ill,” and (2) the trial

court’s temporary sealing order. We vacate the trial court’s judgment and dismiss

the case for lack of jurisdiction.

                                     BACKGROUND

The probate court proceedings

      On November 1, 2010, appellee was detained under an Order of Emergency

Apprehension/Detention and an Emergency Apprehension/Detention Warrant

signed by the presiding judge of the Harris County Probable Cause Court as the

result of an Application for Emergency Detention signed by her aunt.             The

following day, November 2, 2010, a Harris County Justice of the Peace signed an

Order of Protective Custody and Notice of Hearing, which made specific findings,

including that the application for detention was sufficiently supported by a detailed

physician’s statement. That order also (1) appointed a new physician to examine

appellee, (2) appointed an attorney to represent appellee, (2) set a probable cause




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hearing for November 5, 2010, and (4) set a hearing upon the Application for

Court-Ordered Mental Health Services for November 15, 2010.

      On November 5, 2010, a probable cause hearing was conducted in Probate

Court No. 4. The court made the requisite findings—based upon hospital records

and appellee’s statements—to continue appellee’s confinement and treatment.

The underlying district court proceedings

      On November 9, 2010, appellee filed a Petition for Writ of Habeas Corpus in

the district court seeking immediate release. No records from the probate court

proceedings were provided in this district court filing, and she did not argue that

the grounds for confinement were insufficient. Instead, appellee alleged that she

was entitled to immediate release because more than 72 hours passed between her

original detention on November 1, 2010 and the November 5, 2010 probable cause

hearing.

      That same day, the district court signed a Writ of Habeas Corpus ordering

Methodist Hospital to immediately release appellee and transport her to the

location from which she was detained, i.e., her office. Methodist immediately filed

a Motion for Clarification, pointing out that while appellee argued that she was

detained on November 1, 2010 and did not receive a probable cause hearing until

November 5, 2010, appellee “failed to provide the executed order to th[e] court




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which clearly shows that the Order of Protective Custody was signed November 2,

2010.” Because section 574.25(b) of the Texas Health and Safety Code—the

statute upon which appellee’s Petition for Writ of Habeas Corpus was based—only

requires a probable cause hearing within 72 hours of a protective custody order,

appellee’s hearing was actually timely. TEX. HEALTH & SAFETY CODE ANN. §

574.025(b) (Vernon 2010). Methodist also noted that appellee had not provided

the court with the findings from the probable cause hearing confirming the need for
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confinement for her own protection.              Finally, Methodist argued that because

appellee did not give the county attorney nor the probate court notice of the district

court habeas proceedings, Methodist was now faced with conflicting orders—one

from the probate court requiring confinement and one from the district court

ordering appellee be released at a closed office building in the middle of the night

with no guardian or protections in place.

      Methodist also filed a Plea to the Jurisdiction arguing that the probate court,

and not the district court, has jurisdiction over mental health confinement

proceedings. See TEX. GOV’T CODE § 25.1034(b) (granting Harris County Probate

Courts Numbers 3 and 4 primary and secondary responsibility for mental illness

proceedings); TEX. HEALTH & SAFETY CODE ANN. § 574.008(a) (Vernon Supp.

1
      Methodist attached the Probate court records to its motion.




                                             4
2012) (mental health services proceedings must be held in statutory or

constitutional county court that has jurisdiction of a probate court in mental illness

matters).

      On November 10, 2010, the district court signed an Amended Writ of

Habeas Corpus denying Methodist’s plea to the jurisdiction and ordering appellee

to be immediately released to her husband at Methodist Hospital.

      On November 24, 2010, appellee filed an Unopposed Motion for a

Temporary Sealing Order and Unopposed Motion to Seal Court Records, arguing

that her confidential HIPAA-protected medical records that were attached to

Methodist’s filings are being disseminated by third-parties and placing her long-

standing career and reputation as an attorney at risk.

      On December 1, 2010, appellants Richard Stephen Calkins, Individually and

as agent-in-fact for Mary Olive Calkins and Michael Easton, individually, and as

assignee of Richard Stephen Calkins, filed a Plea in Intervention, Motion to Vacate

‘Judgment,’ Notice of Fraud Upon the Court, and Motion to Show Authority.

Appellees sought (1) dismissal of the habeas writ for lack of jurisdiction, (2) denial

of appellee’s request for a sealing order, (3) referral of appellee and her counsel to

the Disciplinary Counsel of the State Bar of Texas for investigation, and (4) an




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order requiring appellee and her lawyer to tender a public apology to a probate

court judge for “mistreatment.”

      On December 1, 2010, appellee faxed an unsigned copy of appellee’s

Motion to Strike Intervention, Restyle Caption, Temporary Restraining Order and

Temporary Injunction to appellants, and gave notice to appellants of a hearing in

front of the ancillary judge on December 2, 2010. A temporary restraining order

was entered December 2, 2010, prohibiting appellants from disseminating

appellee’s “medical records or referring to same” or her “real name or describing

her as mentally ill.” The permanent injunction hearing was set for December 9,

2010. A temporary sealing order was also entered on December 2, 2010, with the

hearing on the Motion to Seal set for December 17, 2010, and later reset to January

21, 2011.

The transfer from district court to probate court

      On December 9, 2010, a hearing was held on appellants’ Motion to Vacate

and Motion for Continuance. The district court acknowledged at that hearing that

it lacked jurisdiction over this proceeding.       The court then entered an order

commanding the clerk to transfer all of the records in this case to Harris County

Probate Court Number 4 and administratively close the case. It also ordered the

parties to file all future related documents in the probate court.




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      Appellants appealed here. In their first issue, they contend the district court

erred by granting a temporary injunction without proper notice to the parties,

without conducting a proper hearing, and without a sworn application from

appellee supporting the injunction. In their second issue, appellants assert that the

district court abused its discretion by sealing the file without the proper posting of

notice and hearing. Appellee has not filed a brief in response.

                                 JURISDICTION

      Although appellants filed a plea to the jurisdiction in the trial court, they do

not challenge the trial court’s denial of that motion here. Nonetheless, “[a]ppellate

courts must determine, even sua sponte, the question of jurisdiction, and the lack

of jurisdiction may not be ignored simply because the parties do not raise the

issue.” See Walker Sand, Inc. v. Baytown Asphalt Materials, Ltd., 95 S.W.3d 511,

514 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (quoting McCauley v. Consol.

Underwriters, 304 S.W.2d 265, 266 (Tex. 1957)).

       “When a trial court learns that it lacks jurisdiction to hear a cause, the court

must dismiss the cause and refrain from rendering a judgment on the merits.”

Freedman v. Univ. of Houston, 110 S.W.3d 504, 507 (Tex. App.—Houston [1st

Dist.] 2003, no pet.). Once the district court in this case determined it lacked

subject-matter jurisdiction because this case involved a mental-illness confinement




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over which the probate court instead had jurisdiction, it erred by reaching the

merits of parties’ claims.

                                 CONCLUSION


We vacate the district court’s orders and dismiss the case. TEX. R. APP. P. 43.2(e).


                                             Sherry Radack
                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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