in the Matter of L.W. ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00338-CV
IN THE MATTER OF L.W.
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FROM COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY
TRIAL COURT NO. 38856-LR
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant L.W. appeals from a judgment for temporary court-ordered
inpatient mental-health services. The trial court ordered that L.W. be committed
for mental-health services at North Texas State Hospital (NTSH) for a period of
time not to exceed ninety days.2 This appeal followed. L.W. raises two issues:
1
See Tex. R. App. P. 47.4.
2
Approximately one month after the commitment hearing was held, the trial
court held a hearing on an application to authorize psychoactive medication and
one challenging the trial court’s denial of her motion to dismiss the State’s
application for court-ordered inpatient mental-health services and one claiming a
deprivation of her right to a jury trial on the State’s application. Because we
sustain L.W.’s issue concerning her right to trial by jury, we will reverse the trial
court’s judgment and remand the case to the trial court with instructions to
conduct a jury trial within fourteen days of the date of our judgment.
II. MOTION TO DISMISS APPLICATION
In her second issue, L.W. argues that the trial court abused its discretion
by denying her motion to dismiss the application for court-ordered mental-health
services.
A. Prior Application
L.W. was originally admitted to NTSH in Wichita County on August 24,
2014, based on an emergency detention after police in Palo Pinto County made
contact with L.W. after “numerous, dozens upon dozens, consistently over days
and days of calls that aliens and zombies were invading her house.” After L.W.
was examined, an application for court-ordered temporary mental-health services
was filed. L.W. was appointed counsel and requested a jury trial. Due to L.W.’s
request for a jury trial, the case was ordered to be transferred back to the
referring court in Palo Pinto County.
signed an order authorizing the administration of psychoactive medication to
L.W. That order was docketed in a separate appeal, 02-14-00371-CV, and is
therefore not before us in this appeal.
2
On September 23, 2014, Wichita County and NTSH received a letter from
the Palo Pinto County Attorney stating that Palo Pinto County had not yet
received the file from Wichita County and that it would be impossible to empanel
a jury in time to meet the thirty-day deadline for holding a final hearing on the
application for court-ordered temporary mental-health services. The Palo Pinto
County Attorney therefore requested that L.W. be released or not held past the
expiration date. L.W. was not released from NTSH.
On September 24, 2014, a licensed clinical social worker at NTSH filed a
new application for temporary court-ordered mental-health services, Dr. Shero
filed a “Physician’s Certificate Of Medical Examination For Mental Illness,” and
the Wichita County District Attorney filed a “Motion For Order Of Protective
Custody Mental Health.” An order for protective custody was signed by a
magistrate on that same date.
Approximately three weeks later, L.W. filed a motion to dismiss the new
application for temporary court-ordered mental-health services, arguing that the
new application should not have been filed while L.W. “was already being
detained on a previously filed and still pending application.” The trial court held a
hearing on L.W.’s motion to dismiss the application, found that L.W. had failed to
establish that the application for temporary court-ordered mental-health services
was made in bad faith, and denied her motion to dismiss the application.
The trial court subsequently held a hearing on the September 24, 2014
application and signed a final order for court-ordered mental-health services.
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B. Pertinent Law
The process for obtaining court-ordered mental-health services in Texas
may involve three separate orders; first, a warrant for emergency detention;
second, an order of protective custody; and third, an order for temporary court-
ordered mental-health services. See, e.g., Tex. Health & Safety Code Ann.
§§ 573.021, .022 (West Supp. 2014) (addressing criteria for emergency detention
for preliminary examination), §§ 574.021–.028 (West 2010) (addressing
detention via an order of protective custody pending hearing on application for
court-ordered inpatient mental-health services), §§ 574.031–.037 (West 2010 &
Supp. 2014) (addressing procedures for obtaining order for temporary or
extended mental-health services); Floyd L. Jennings, Current Status of Mental
Health Commitments, The Houston Lawyer, July/August 1997 at 40, 41. The
process typically begins with an application for court-ordered mental-health
services. Tex. Health & Safety Code Ann. § 574.001 (West 2010). The
application must (1) be styled using the proposed patient’s initials; (2) state
whether the application is for temporary or extended mental-health services; and
(3) contain the proposed patient’s name and address, the proposed patient’s
county of residence in this state, a statement that the proposed patient is
mentally ill and meets the criteria in section 574.034 or 574.035 for court-ordered
mental-health services, and whether the proposed patient is charged with a
criminal offense. Id. § 574.002 (West Supp. 2014). A hearing on the application
for court-ordered mental-health services shall be held within fourteen days after
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the date on which the application is filed. Id. § 574.005(a) (West 2010). For
cause, the hearing may be extended for a period not to exceed thirty days from
the date on which the original application is filed. Id. § 574.005(c). If certain
circumstances are met, an order of protective custody may be issued to
authorize the proposed patient’s detention pending the hearing on the application
for court-ordered inpatient mental-health services. Id. § 574.027(a)–(b). But, “[a]
facility administrator shall discharge a person held under a protective custody
order if: . . . a final order for court-ordered mental-health services has not been
entered” by the thirtieth day after the date on which the original application is
filed. Id. § 574.028(c)(2).
C. Analysis
L.W. challenges the trial court’s denial of her motion to dismiss the
application filed on September 24, 2014. She does not challenge the form of the
application. Instead, L.W. argues that upon the filing of the September 24, 2014
application, “two applications were pending over L.W., which is certainly not
contemplated by the Texas Health & Safety Code.” But, according to the terms
of chapter 574, as set forth above, because no final order for court-ordered
mental-health services was entered within thirty days after the date of the first-
filed application, that application became useless. See id. § 574.028(c)(2). The
statutory timeline had been blown for obtaining an order for temporary court-
ordered inpatient mental-health services for L.W. based on that application.
Consequently, the State filed a new application—the September 24, 2014
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application. L.W. cites no authority, and we have not located any, for the
proposition that the State may not file successive applications when the statutory
timeline is blown on the first-filed application. See generally id. §§ 574.001–.002.
Accordingly, we hold that the trial court did not err or abuse its discretion by
denying L.W.’s motion to dismiss the September 24, 2014 application.3 See,
e.g., Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134
S.W.3d 835, 838–39 (Tex. 2004). We overrule L.W.’s second issue.
III. RIGHT TO TRIAL BY JURY
L.W.’s first issue asserts that she was improperly denied her right to trial by
a jury at the hearing on the State’s application for court-ordered temporary
mental-health services. See Tex. Health & Safety Code Ann. § 574.034(a)(1),
(2)(C) (West Supp. 2014).
3
In the final sentence of her argument under her second issue, L.W.
alleges that she was denied due process because she was detained for fifty-
seven days before a hearing was held. A hearing was held on the September
24, 2014 application—the only application that L.W. challenges on appeal—
within the thirty-day time frame provided by the statute. See Tex. Health &
Safety Code Ann. § 574.005(c). To the extent that by this statement L.W. may
be attempting to challenge the trial court’s failure to hold a hearing within thirty
days of the August 25, 2014 application, L.W.’s remedy was to file a petition for
writ of habeas corpus after the thirty-day deadline on the August 25, 2014
application expired on September 23, 2014. See, e.g., In re M.M., 357 S.W.3d
381, 382 (Tex. App.—Waco 2011, no pet.). L.W. is now detained for temporary
court-ordered inpatient mental-health services based on a final order timely
issued less than thirty days from the September 24, 2014 application, and any
complaints regarding her detention on the previously-entered temporary orders
for protective custody are moot. Cf. James v. Hubbard, 21 S.W.3d 558, 560
(Tex. App.—San Antonio 2000, no pet.) (stating general rule that expired
temporary protective orders are considered moot on appellate review).
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A. Pertinent Law
Texas Health and Safety Code section 574.032 sets forth the following
provisions pertaining to the right to a jury trial in mental health commitment
cases:
(a) A hearing for temporary mental health services must be before
the court unless the proposed patient or the proposed patient’s
attorney requests a jury.
(b) A hearing for extended mental health services must be before a
jury unless the proposed patient or the proposed patient’s attorney
waives the right to a jury.
(c) A waiver of the right to a jury must be in writing, under oath, and
signed and sworn to by the proposed patient and the proposed
patient’s attorney unless the proposed patient or the attorney orally
waives the right to a jury in the court’s presence.
(d) The court may permit an oral or written waiver of the right to a
jury to be withdrawn for good cause shown. The withdrawal must be
made not later than the eighth day before the date on which the
hearing is scheduled.
Tex. Health & Safety Code Ann. § 574.032(a)–(d) (West 2010). The Texas
Supreme Court has defined waiver as “an intentional relinquishment of a known
right or intentional conduct inconsistent with claiming that right.” Crosstex
Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 391 (Tex. 2014). It has
long been recognized that upon timely assertion of the right and in the absence
of a waiver, an individual is entitled to trial by jury on the issue of commitment for
the purposes of in-patient mental-health treatment. Accord White v. White, 108
Tex. 570, 587, 196 S.W. 508, 515 (1917); accord also Gen. Motors Corp. v.
Gayle, 951 S.W.2d 469, 476 (Tex. 1997) (“The right to jury trial is one of our most
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precious rights . . . . Even where a party does not timely pay the jury fee, courts
have held that a trial court should accord the right to jury trial if it can be done
without interfering with the court’s docket, delaying the trial, or injuring the
opposing party.”).
B. Analysis of L.W.’s Jury Demand
and Lack of Waiver of Right to Jury Trial on Chapter 574 Issues
A hearing for temporary mental-health services must be before the court
unless the proposed patient or the proposed patient’s attorney requests a jury.
Tex. Health & Safety Code Ann. § 574.032(a). L.W. requested a jury trial. The
record contains an “Order Setting Jury Trial” that states that “[o]n this day the
court considered the proposed patient’s request for setting of a jury trial. It is,
therefore, ordered that this case is set for jury trial beginning at 9:00 a.m. on
October 21, 2014, in the County Court at Law Number 2.” [Emphasis added.]
The record also contains a document signed on October 20 by L.W. and by her
attorney. The portion of the document signed by L.W. states:
WAIVER OF TRIAL BY JURY BY PROPOSED PATIENT
I, [L.W.], the subject in the above numbered cause, hereby waive
trial by jury and request that by clear and convincing evidence the
Court determine on the basis of competent medical or psychiatric
testimony whether I am mentally ill or am a person with mental
retardation and meet the criteria for Inpatient Commitment pursuant
to Tex. Code of Crim. Proc. Article 46C.
The portion of the document signed by L.W.’s attorney provides:
WAIVER OF TRIAL & APPEARANCE BY ATTORNEY
I, the Attorney, hereby waive trial by jury and appearance of the
proposed patient and request that by clear and convincing evidence
the Court determine on the basis of competent medical or psychiatric
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testimony whether the patient is mentally ill or is a person with
mental retardation and meet the criteria for Civil Commitment:
Charges Pending under Code of Criminal Procedure, Article 46B,
Subchapter E.
When the trial court called the case for a nonjury trial, the following exchange
occurred:
[THE COURT:] We appeared in court at the Wichita Falls campus of
the State Hospital on approximately -- it was probably about 9
o’clock a.m. on October 8th of 2014, and at that time we received
notice that the proposed patient may have been too ill to appear in
court and that she wanted the case heard by a jury. So the Court set
the hearing -- or set the jury trial for this case at 9 o’clock a.m. on
today’s date, October 21st of 2014; and yesterday the Court
received a filing from the proposed patient [L.W.], that she had
waived her right to a trial by a jury, and so the Court set the case –
THE PROPOSED PATIENT: I would like to have a trial by jury. I did
not waive my right.
No one responded to L.W.’s comment, and the trial court proceeded to hear the
case.
L.W. argues that she timely requested a jury trial and that the document
purporting to waive her right to a jury trial by its own terms waived only her right
to have a jury “determine on the basis of competent medical or psychiatric
testimony whether I am mentally ill or am a person with mental retardation and
meet the criteria for Inpatient Commitment pursuant to Tex. Code of Crim. Proc.
Article 46C.” L.W. points out that Texas Code of Criminal Procedure article 46C
relates to a criminal insanity defense and contains different commitment criteria
than Texas Health and Safety Code section 574. Because commitment pursuant
to a criminal insanity defense is not at issue here, L.W. asserts that she did not
9
waive her right to have a jury trial on the State’s application for temporary court-
ordered inpatient mental-health services. Concerning the portion of the
document signed by her trial attorney, L.W. points out that section 46B of the
Texas Code of Criminal Procedure deals with incompetency to stand trial and
involves a different set of criteria for commitment than Texas Health and Safety
Code section 574. Accordingly, L.W. argues that a waiver of the right to have a
jury “determine on the basis of competent medical or psychiatric testimony
whether the patient is mentally ill or is a person with mental retardation and meet
the criteria for Civil Commitment: Charges Pending under Code of Criminal
Procedure, Article 46B, Subchapter E” is not a waiver of her right to have a jury
trial on the State’s application for temporary court-ordered inpatient mental-health
services. We agree with L.W.’s contentions; the rights L.W. intentionally
relinquished in the purported waivers were rights other than to have a jury trial on
the State’s application for temporary court-ordered inpatient mental-health
services under chapter 574 of the health and safety code. See Crosstex Energy
Servs., L.P., 430 S.W.3d at 391.
The State asserts that “there is no support in the record that there was a
jury demand made, other than the mere fact that it was set for a jury trial.” As set
forth above, the record reflects that L.W. demanded a jury trial three times: once
in Palo Pinto, once in Wichita Falls, and again when the case was called for trial.
L.W.’s intentional conduct was thus never inconsistent with claiming her right to a
jury trial. See id.
10
The State concedes that the language in the above quoted waivers is
erroneous but nonetheless contends that the waivers were effective to waive
L.W.’s right to a jury trial on the State’s application for temporary court-ordered
inpatient mental-health services under chapter 574 of the health and safety code.
The State asserts that this court should simply disregard the erroneous language
in the purported waivers. This we cannot do; we have found no authority, and
the State has cited none, for the proposition that the waiver of a specifically
identified right may be disregarded and construed as a knowing and intentional
waiver of something different. Cf. id.
We hold that L.W. timely asserted her right to a trial by a jury on the State’s
application for temporary court-ordered inpatient mental-health services under
chapter 574 of the health and safety code, that the document signed by L.W. and
by her attorney did not waive her right to trial by jury on the State’s application for
temporary court-ordered inpatient mental-health services under chapter 574 of
the health and safety code, and that the trial court therefore erred by failing to
conduct a jury trial. Cf. M.A.V. v. Webb Cnty. Court at Law, 842 S.W.2d 739,
742–44 (Tex. App.—San Antonio 1992, writ denied) (holding that juvenile court
erred by denying appellant a jury hearing on issue of whether he should be
hospitalized temporarily because appellant did not waive his right to a jury); cf.
also Dill v. State, No. B14-93-00677-CR, 1993 WL 487496, at *1 (Tex. App.—
Houston [14th Dist.] Nov. 24, 1993, no pet.) (not designated for publication)
(holding that because appellant did not waive his right to a jury trial in proceeding
11
for extended mental-health services, trial court erred by committing appellant to
state hospital for period of one year). We sustain L.W.’s first issue.
IV. CONCLUSION
Having overruled L.W.’s second issue claiming that the trial court should
have dismissed the September 24, 2014 application and having sustained L.W.’s
first issue asserting that she was entitled to a jury trial on the chapter 574 issues,
we reverse the trial court’s judgment for temporary court-ordered inpatient
mental-health services and remand this case to the trial court for a new trial to a
jury to be conducted within fourteen days of the date of our judgment. Accord
Tex. Fam. Code Ann. § 574.005(a) (requiring trial court to set a date for hearing
within fourteen days after the date on which the application is filed); Dill, 1993 WL
487496, at *2 (remanding for new trial). If such action is not taken within that
time, appellant shall be discharged. Accord Dill, 1993 WL 487496, at *2.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, J.; LIVINGSTON, C.J.; and GABRIEL, J.
GABRIEL, J., filed a dissenting opinion.
DELIVERED: January 9, 2015
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