Richard Stephen Calkins, Individually and as Attorney-In-Fact for Mary Olive Calkins and Michael Easton v. Jane Doe ( 2012 )

Opinion issued September 27, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-01077-CV
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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.
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Methodist attached the Probate court records to its motion.
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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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