Ex parte Ullmann

• Decision Date: 18 March 1981
• Docket Number: No. 16611,16611
• Citation: 616 S.W.2d 278
• Parties: Ex parte Beatrice ULLMANN, Bella Angeline Cantu, Darlene Jordan, Josephine Molina, Cristina Porter and Tom Huron.
• Court: Texas Court of Appeals

Page 278

616 S.W.2d 278

Ex parte Beatrice ULLMANN, Bella Angeline Cantu, Darlene

Jordan, Josephine Molina, Cristina Porter and Tom Huron.

No. 16611.

Court of Civil Appeals of Texas, San Antonio.

March 18, 1981.

Rehearing Denied May 6, 1981.

Larry N. Sullivan, Ray Leach, Stephen G. Cochran and Donald S. Bayne, San Antonio, for appellant.

David M. Eisen, Houston, amicus curiae.

Richard Hayes, Bernie Martinez, Bexar County Dist. Atty.'s Office, San Antonio, Martha Allan, Asst. Atty. Gen., Austin, for appellee.

OPINION

KLINGEMAN, Justice.

This is a consolidated habeas corpus case challenging both the constitutionality of the Texas Mental Health Code, Article 5547, section 66, and compliance with that Code by the State of Texas in retaining appellants at the San Antonio State Hospital pursuant to orders for protective custody. Trial was to the court without a jury who found that the Texas Mental Health Code was constitutional on its face and as applied to appellants, and that appellees have complied with the provisions of the Code.

Appellees first contend that this case is moot since all the individuals involved have been released from confinement. Appellants urge that the case is not moot under certain exceptions to the mootness doctrine. ¹

At the time oral arguments were heard in this case, the question of mootness in this type of situation was a very close one and was subject to different holdings by courts of civil appeals. This court in State v. Lodge, 597 S.W.2d 773 (Tex.Civ.App. San Antonio 1980), had held that an appeal from an order of involuntary commitment for temporary hospitalization for a period not to exceed 90 days was not moot although the appellants had been discharged. The Austin court of civil appeals in Jones v. State, 599 S.W.2d 897 (Tex.Civ.App. Austin 1980), reached a different result and held that the case was moot where the patient was discharged. The Supreme Court of Texas granted writs in both cases and in an opinion at 608 S.W.2d 910, affirmed the judgment of this court in Lodge and reversed and remanded the Jones case.

This court in Lodge discussed the two recognized exceptions to the mootness doctrine and in holding that the collateral consequences exception was applicable discussed in some detail the stigma and adverse consequences flowing from a judicial determination of mental illness. Appellees assert that Lodge is distinguishable because it involved commitments for temporary hospitalization for up to 90 days rather than an order of protective custody. ² Appellants further urge that we are here concerned with writs of habeas corpus and therefore they are not final judgments which can affect appellants. We disagree. See the opinions of this court and of the supreme court in Lodge, supra. The collateral consequences flowing from confinement under order of protective custody are no less severe than those flowing from temporary commitment under an application for temporary hospitalization except for the difference in periods of confinement. Furthermore, the Mental Health Code provides for a method of speedy appeal from a determination of mental illness under the order of temporary hospitalization for 90 days. In Lodge, the supreme court noted that this legislative purpose would be frustrated in most cases by the application of a mootness doctrine to orders for temporary commitment. The Mental Health Code does not provide for a method of appeal from orders of protective custody; therefore, habeas corpus is the only remedy available to those seeking relief from such orders. To deny appeal in such cases would be to deny the appellants a remedy of any kind. Other jurisdictions have found appeals from emergency and voluntary committals were not moot under the "capable of repetition by evading review" exception to the mootness doctrine. See Doe v. Gallinot, 486 F.Supp. 983 (C.D.Cal.1979); French v. Blackburn, 428 F.Supp. 1351 (M.D.N.C. 1977), aff'd, 443 U.S. 901, 99 S.Ct. 3091, 61 L.Ed.2d 869 (1979); Coll v. Hyland, 411 F.Supp. 905 (D.N.J.1976); Doe v. Madonna, 295 N.W.2d 356 (Minn.1980).

We hold that this case is not moot.

Appellants' first point of error asserts that section 66 of Article 5547 is unconstitutional on its face because the statute fails to provide minimal due process for individuals confined in state mental institutions under order of protective custody. In support of such point of error appellants urge that the statute is constitutionally infirm because (a) it fails to provide a notice of opportunity to be heard at the earliest possible time following an individual's detention at a state mental institution, and (b) the Mental Health Code fails to provide notice to the individual to contest an order for protective custody.

Section 66 provides as follows If in the county court in which an Application for Temporary Hospitalization or a Petition for Indefinite Commitment is pending, a Certificate of Medical Examination for Mental Illness is filed showing that the proposed patient has been examined with five (5) days of the filing of the Certificate and stating the opinion of the examining physician that the proposed patient is mentally ill and because of his mental illness is likely to cause injury to himself or others if not immediately restrained, the judge may order any health or peace officer to take the proposed patient into protective custody and immediately transport him to a designated mental hospital or other suitable place and detain him pending order of the court.

In reaching our decision that the statute is not unconstitutional on its face, we have considered a number of factors. It is well settled that legislative enactments will not be held unconstitutional and invalid unless it is absolutely necessary to so hold. Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945); Finch v. Mississippi State Medical Association, Inc., 585 F.2d 765 (5th Cir. 1978); Texas State Board of Barber Examiners v. Beaumont Barber College, 454 S.W.2d 729 (Tex.1970); Smith v. Patterson, 111 Tex. 535, 242 S.W. 749 (1922); State v. Brownson, 94 Tex. 436, 61 S.W. 114 (1901); Southern National Bank v. City of Austin, 582 S.W.2d 229 (Tex.Civ.App. Tyler 1979, writ ref'd n.r.e.).

In passing on the constitutionality of section 66, we have also looked at other provisions of the Mental Health Code, and there are other provisions of the Code which provide additional due process protection for persons under protective custody.

Article 5547, section 33, provides:

When an Application for Temporary Hospitalization is filed, the county judge shall set a date for a hearing to be held within fourteen (14) days of the filing of the Application. The proposed patient shall be personally served with a copy of the Application and written notice of the time and place of hearing thereon and of the order, if any, to submit to an examination for mental illness. A copy of the Application and notice shall be sent by registered mail to the guardian or a responsible relative of the proposed patient. When such application is filed, the county judge shall simultaneously appoint an attorney ad litem, if there is no attorney representing the proposed patient. Such attorney shall be furnished with all records and papers in said cause together with access to all the hospital and doctors' records in said cause.

As will be noted from a reading of section 33, it contains a number of provisions as to notice when an application for temporary hospitalization is filed: (a) the patient is to be personally served with a copy of the application and written notice of the time and place of hearing thereon; (b) a copy of the application is required to be sent by registered mail to the guardian or a responsible relative of the proposed patient; (c) the county judge is required to simultaneously appoint an attorney ad litem for the patient if there is no attorney representing the proposed patient; and (d) the attorney is to be furnished with all records and papers in said cause together with access to all the hospital and doctors' records in said cause.

In view of the fact that the application for temporary hospitalization is required to be filed prior to the order of protective custody being entered and in view of the stringent requirements of section 33, as set forth above, it is evident that if the Texas Mental Health Code provisions are correctly and constitutionally applied, the patient will have received adequate notice prior to the entry of the order of protective custody.

In Logan v. Arafeh, 346 F.Supp. 1265 (D.Conn.1972), aff'd sub nom., Briggs v. Arafeh, 411 U.S. 911, 93 S.Ct. 1556, 36 L.Ed.2d 304 (1973), the court said:

The emergency commitment to a hospital for mental illness on a temporary basis of a person on the finding of a physician that he is a danger to himself or others without prior notice and hearing does not offend the due process clause provided there is available to him an adequate means of testing the validity of his confinement within a reasonable period of time. (emphasis added)

346 F.Supp. 1265 at 1268.

It should be noted that while Logan would not appear to require any notice or service on the individual, under the Texas statutory scheme discussed above, the patient would have had an attorney appointed for him and would have received notice of the application for temporary hospitalization order for examination, as well as a notice of the time and place of the hearing on a temporary commitment. If the statute is constitutionally applied, the patient would thus have received more due process under the Texas statute than is required under Logan.

The primary thrust of appellants' complaint as to the unconstitutionality of the statute is directed at the 14-day detention period provided in the statute. Appellants argue that this period is unnecessarily long and cite statutes in various states which provide for shorter periods. The American Civil...