Opinion
NO. 14-19-00040-CV NO. 14-19-00041-CV
07-30-2020
IN RE COMMITMENT OF C.H.
On Appeal from Probate Court No. 3 Harris County, Texas
Trial Court Cause Nos. I262707 & I262707-01
DISSENTING OPINION
C.H. was entitled to procedural due process in these hearings. She did not receive it. Her attorney objected in the trial court that C.H. wanted to be present and wanted to testify. The trial court refused to make any accommodations to allow her to view the proceedings remotely or to testify remotely. In doing so, the trial court erred.
A. Procedural Due Process is Required
The majority correctly states that these two proceedings, involuntary commitment and forced medication, are civil and not criminal proceedings. However, that does not end the constitutional inquiry. An involuntary civil commitment implicates a liberty interest that is protected by the due process clause of our state and federal constitutions. See Vitek v. Jones, 445 U.S. 480, 492-93 (1980); In re T.B., 594 S.W.3d 773, 776 (Tex. App.—Waco 2019, no pet.); U.S. Const. amend. XIV; Tex. Const. art. I, § 19.
Generally, procedural due process requires a person to be present with counsel, have an opportunity to be heard, be confronted with witnesses against her, have the right to cross-examine witnesses and to offer evidence of her own. In re T.B., 594 S.W.3d at 777. But the due process right of a party to be present at trial is not absolute. In re M-I L.L.C., 505 S.W.3d 569, 576 (Tex. 2016) (orig. proceeding).
What process is due depends on a consideration of three factors: (1) the private interest that will be affected by the official action; (2) 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 (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. U.S. Gov't v. Marks, 949 S.W.2d 320, 326 (Tex. 1997).
B. C.H. Did Not Receive Procedural Due Process
Involuntary commitment and forced medication affect liberty interests. The Mental Health Code recognizes that a person has the right to counsel and the right to be present at these hearings. See Tex. Health & Safety Code §§ 574.031, 574.105. Counsel for C.H. met with her before trial and told the trial court that C.H. wanted to be present and testify: "I am ready, but I would request that my client be present. . . . I spoke with her about 30 minutes ago. She requested the opportunity to be here." The attorney representing the State of Texas informed the court that the bailiffs would not bring C.H. to court because she recently bit a bailiff on the hand and broke through the skin. The bailiff recounted the situation and then said to the court, "It's up to you." Dr. Samuels reported that "they will not give her a roommate because of the violence." The trial court then said it is not in the best interests of the people in the courtroom to bring her to trial.
The antecedent of "they" is unclear from the record.
Counsel for C.H. responded, "Specifically for purposes of the appeal, she is entitled to confrontation of the witnesses against her. That is a constitutional right under both State and Federal constitutions." Counsel for the State of Texas said "the appellate court didn't feel that way when they just ruled against you," probably referring to the First Court of Appeals opinion of In re K.C., 563 S.W.3d 391, 396 (Tex. App.—Houston [1st Dist.] 2018, no pet.), which had just issued. In re K.C. did not address procedural due process. The trial court proceeded to trial and did not make any accommodations for C.H. to watch the trial remotely. After reviewing affidavit evidence, the trial court signed the judgment of commitment and proceeded to the forced medication hearing.
After the State presented evidence, counsel for C.H. again asked for his client to be brought down to testify. "That would be Article 1, section 10, the right to be heard." The court briefly discussed allowing her to testify by phone.
C.H. was on the third floor of the building where the court held the trial.
The Court: You think she can behave on the phone, or will she -- I mean, will she get violent? I mean, we're here. But if she gets frustrated or I cut her off because she's talking for 20 minutes on the same point, how will she take it? Will she throw the phone at somebody?
Defense: I don't think so.
The Court: Well, geez, you're not up on the unit.
Dr. Samuels, what do you think?
Samuels: She did not respond to any of my redirection this morning.
The Court: Okay.
Samuels: She does not respond to staff redirection. That's part of the reason why she's not allowed to have a roommate.
The Court: [Defense counsel], I'm going to deny it, and it's purely -- I'm not too sure that giving her a hard, plastic telephone receiver, which would be in her control obviously, or putting her near a phone which is on a speaker, I'm not sure that that would be consonant with safety of the people on the unit who are also there who also have rights. If the Court of Appeals wants to overturn it, they can go for it.
Simply put, this court should accept the trial court's invitation and reverse this case. There was simply no evidence presented—other than the trial court's own suppositions—that C.H. could not be trusted to testify by phone in her own trial. Nor was there any attempt made to allow C.H. to view the trial by computer—which we have discovered in 2020—is not difficult or expensive to accomplish.
Zoom was founded in 2011 and has been used by courts all over Texas to hold hearings and trials in 2020.
C.H. had a right to be present and to testify—at least in a remote manner. Because the trial court failed to make any effort to accommodate those rights, the case should be reversed.
C. Preservation of Error
The majority faults C.H. because her counsel did not invoke the due process clause in his objections before the trial court and in his brief on appeal. The majority thus contends that C.H. has waived the issue. However, C.H.'s points of error on appeal are broad enough to encompass the issue as was counsel's objection below on the right to be present. Our own court has reversed a parental termination case because a parent's due process right to appear for a termination hearing was violated. See In re L.N.C., 573 S.W.3d 309, 322 (Tex. App.—Houston [14th Dist.] 2019, pet. denied). I dissented in that case, arguing that error was not preserved. Not once in the trial court did counsel in that case argue that the client had a constitutional right to appear for trial, yet the Supreme Court denied the petition for review. In the present case, however, counsel twice argued that C.H. had a constitutional right to be present and to testify.
C.H.'s two points are: The Trial Court erred in waiving the appearance of Appellant over her objection. The Trial Court erred in refusing to allow Appellant to testify telephonically at her forced medication hearing.
The trial judge knew that C.H. was making a constitutional argument and invited us to reverse him. We should accept that invitation. Because the majority does not, I respectfully dissent.
/s/ Tracy Christopher
Justice Panel consists of Chief Justice Frost and Justices Christopher and Bourliot. (Bourliot, J., majority).