Luna v. Van Zandt

• Decision Date: 24 November 1982
• Docket Number: Civ. A. No. B-78-13.
• Parties: Santiago LUNA, Plaintiff, v. Edwin R. VAN ZANDT, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

554 F. Supp. 68

Santiago LUNA, Plaintiff, v. Edwin R. VAN ZANDT, et al., Defendants.

Civ. A. No. B-78-13.

United States District Court, S.D. Texas, Brownsville Division.

November 24, 1982.

Gerald A. Garcia, Texas Rural Legal Aid, Harlingen, Tex., for plaintiff.

Martha H. Allan, Asst. Atty. Gen. of Texas, Austin, Tex., for defendants.

MEMORANDUM OPINION

KAZEN, District Judge.

This matter comes before the Court on cross-motions for summary judgment. The case was brought as a class action pursuant to 42 U.S.C. § 1983 to declare unconstitutional and enjoin enforcement of Texas procedures governing the involuntary commitment of persons pursuant to orders of protective custody issued under Tex.Rev.Civ. Stat.Ann. art. 5547-66 (Vernon 1958). Jurisdiction is based on 28 U.S.C. § 1343(3) and (4).

Plaintiff, Santiago Luna, brought this action individually and on behalf of "all persons who are or will be patients of mental health facilities administered by the Texas Department of Mental Health and Mental Retardation who have been, or will be, involuntarily committed to confinement in such facilities pursuant to Orders of Protective Custody issued under Tex.Rev.Civ.Stat. Ann. art. 5547-66 (Vernon 1958)". Stipulation 2; Order, December 31, 1980. The Court certified the case as a class action by Order of December 31, 1980, pursuant to Rule 23(b)(2), Fed.R.Civ.P.

Defendants are the former and current chairman and members of the Texas Board of Mental Health and Mental Retardation (TBMHMR), the former and current commissioner of the Department of Mental Health and Mental Retardation, and the Director of the Rio Grande State Center for Mental Health and Mental Retardation.¹ Plaintiff contends that the Texas scheme for protective custody orders is unconstitutional on its face and as applied, in violation of the due process clause of the Fourteenth Amendment. The parties are in agreement that this case presents issues that can be decided as a matter of law and therefore can be disposed of on motion for summary judgment and the pleadings, briefs, and stipulations of the parties.

Plaintiff Santiago Luna was, at the time of commitment, a thirty-six year old resident of Brownsville, Cameron County, Texas. He was committed on December 30, 1977 to the Rio Grande State Center for Mental Health and Mental Retardation (RGSC) under twenty-four hour emergency commitment orders pursuant to Article 5547-27, V.A.T.S. Three days later, on January 3, 1978, an application for temporary commitment of Luna was filed pursuant to Article 5547-31 and a hearing on the application was set for January 12, 1978 (nine days later). Also on January 3, an order of protective custody was issued by the county court pursuant to Article 5547-66, to confine Luna (who was already in custody under the December 30 emergency commitment order) pending a hearing on the application for temporary commitment. The order of protective custody was issued ex parte after submission of physician certificates pursuant to Article 5547-66. On January 12, Luna, with counsel present, had his hearing before the county court on the application for temporary commitment. The court decided to release Luna; However, for reasons unknown, it was not until January 17 that the county court judge signed the order for release. Luna had been released on January 16, 1978 by the hospital on a two-week pass pending orders from the court. On January 19, 1978, pursuant to the court's order, Luna was discharged from the hospital while still out on furlough.² The January 12 hearing was the first granted to Luna since his initial commitment under emergency orders on December 30, 1977. Since his discharge from RGSC in January, 1978, Luna has been treated as an outpatient on a regular basis by RGSC. Stipulations No. 8-15, 17-18.

The Texas civil commitment scheme provides for three stages of involuntary commitment. The first stage may be termed emergency commitment. Article 5547-27 provides for immediate detention by magistrate's warrant of persons believed to be mentally ill and likely to cause injury to themselves or others if not immediately restrained. Under the statute, emergency admission may not exceed twenty-four hours (or up to ninety-three hours during weekends or legal holidays) unless a written order is obtained ordering further detention. Article 5547-27, V.A.T.S. Plaintiffs make no challenge to the emergency commitment procedures.

The second stage of detention is termed temporary hospitalization and begins with the filing of an application. The statute requires that the county judge hold a hearing within fourteen days thereafter to determine the need for hospitalization. The patient is served with written notice of the time and place of the hearing, the application for temporary hospitalization, and an order, if any, to submit to an examination for mental illness. When the application is filed the county judge must simultaneously appoint an attorney ad litem to represent the patient if he is not already represented by an attorney.³ The patient's attorney is to be furnished all necessary records and papers in the cause, including relevant hospital and doctors' records. Pending the hearing on the application, the proposed patient may remain at liberty unless he is already a patient in a mental hospital or is placed under protective custody. At the conclusion of the hearing, if need for hospitalization is found, the patient is committed for a maximum of 90 days. Articles 5547-31 through 5547-39, V.A.T.S.

The third stage of commitment is indefinite commitment. These procedures are similar to those provided for temporary hospitalization, but there are different time frames and more stringent standards. Articles 5547-40 through 5547-57, V.A.T.S.

Neither the procedure for temporary hospitalization nor for indefinite commitment is at issue here. Instead, the Plaintiffs attack only the statutory provision for orders of protective custody. Such orders may be issued by the county judge, ex parte, to detain persons pending the hearing on the merits when applications for temporary or indefinite commitment have been filed. Article 5547-66, V.A.T.S. Before a judge may issue an order for protective custody, a Certificate of Medical Examination for Mental Illness must be filed "showing that the proposed patient has been examined within 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". Article 5547-66. The statute provides for no notice to the patient of why he is being taken into protective custody. Likewise, there is no statutory provision for any probable cause hearing to justify this form of precommitment custody. Thus, the patient can be held without a hearing for up to fourteen days if he is the subject of a petition for temporary hospitalization (Section 33) and up to thirty days if he is the subject of a petition for indefinite commitment (Section 43). The total period of prehearing custody could be increased by three days if emergency admission preceded protective custody. Articles 5547-66, 5547-67(d), and 5547-27, V.A.T.S.

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. Ex parte Ullmann, 616 S.W.2d 278, 280 (Tex.Civ.App. —1981, writ dism'd w.o.j.). While section 66 does not prescribe a hearing prior to detention, it also does not preclude one. Instead, the section has been held to give "ample discretion" to the committing court to hold such a hearing either on its own motion or upon request of the proposed patient's counsel. Id. at 283. Additionally, under the Mental Health Code and the rules and regulations promulgated by TDMHMR, a state hospital superintendent "should" request the recision of an order of protective custody where the admission criteria are not met. See 25 Tex.Admin.Code § 405.485 (1981).

The Rio Grande State Center (RGSC), to which Luna was committed, is a facility in South Texas operated by Defendants and receives detainees under orders of protective custody from twelve counties.⁴ During the fiscal year beginning September 1, 1979 and ending August 31, 1980, RGSC received approximately 219 persons under orders of protective custody. Of these 219 persons, approximately 86 were confined for the full fourteen days allowed by statute before being given a hearing required by statute. Approximately 37% or 81 of these persons were discharged by the court or released by the hospital on or before the expiration of fourteen days; of these 81 persons, 71 were released without hearings and ten were released by the court at their temporary commitment hearings. Stipulations 24-27.

The actual procedures used for issuing orders of protective custody, for setting temporary commitment hearing dates, and for providing for notice and appointment of counsel in temporary commitment cases vary greatly among the different counties in Texas.⁵ In each of the calendar years 1976, 1977 and 1978, at least 1,000 persons were confined in TDMHMR facilities under orders of protective custody pursuant to Section 66 and at least 500 a year, or half of these individuals, were confined for the full fourteen days allowed (counting any partial days of confinement) prior to having their hearing on the application for temporary commitment. Some of these individuals have been committed to TDMHMR facilities under orders of protective custody more than once. Often persons confined under orders of protective custody are confined in locked wards. Stipulations 19-23.

Eighty percent (175) of all persons committed to RGSC under orders of protective custody during 1980 were sent from the courts of three counties: Cameron (84); Hidalgo (51), and Webb (40). The number...