Texas Dept. of Mental Health and Mental Retardation v. Petty By and Through Kauffman, 3-88-035-CV

• Decision Date: 20 September 1989
• Docket Number: No. 3-88-035-CV,3-88-035-CV
• Citation: 778 S.W.2d 156
• Parties: TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION, et al., Appellants, v. Opal PETTY, By and Through Her Next Friends, Linda KAUFFMAN, et al., Appellees.
• Court: Texas Court of Appeals

Page 156

778 S.W.2d 156

TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION, et al., Appellants, v. Opal PETTY, By and Through Her Next Friends, Linda KAUFFMAN et al., Appellees.

No. 3-88-035-CV.

Court of Appeals of Texas Austin.

Sept. 20, 1989.

Rehearing Denied Nov. 1, 1989.

Jim Mattox, Atty. Gen., Dennis R. Garza, Asst. Atty. Gen., Austin, for appellants.

James C. Harrington, Texas Civ. Liberties Union, Deborah C. Hiser, Advocacy, Inc., Austin, for appellees.

POWERS, Justice.

Opal Petty and Advocacy, Inc. sued the Texas Department of Mental Health and Mental Retardation, and certain of its officials alleging causes of action for money damages and other relief, based upon Petty's involuntary confinement in mental-health institutions operated by the Department. The trial court sustained a motion that Petty and Advocacy be permitted to maintain the actions as representatives of a class of individuals who had been, or would be, similarly confined for an indefinite period following civil-commitment proceedings. Tex.R.Civ.P.Ann. 42 (1979 & Supp.1989). The Department takes this interlocutory appeal from the class-action order. Tex.Civ.Prac. & Rem.Code Ann. § 51.014(3) (Supp.1989). We will affirm the order in part, and reverse and vacate the order in part. ¹

THE CONTROVERSY

In 1977, the Supreme Court of Texas held that civil proceedings to obtain the involuntary commitment of individuals, for mental-health reasons and for an indefinite period, must be determined by a "preponderance of the evidence," rejecting a contention that due process of law required their determination "beyond a reasonable doubt." State v. Turner, 556 S.W.2d 563 (Tex.1977), cert. denied, 435 U.S. 929, 98 S.Ct. 1499, 55 L.Ed.2d 525 (1978). In 1979, however, the Supreme Court of the United States held that due process of law required their determination by "clear and convincing evidence," as opposed to a "preponderance of the evidence." Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). Thereafter, the Legislature amended the applicable part of the Texas Mental Health Code, Tex.Rev.Civ.Stat.Ann. art. 5547-1 et seq. (1958 & Supp.1989). The Code now requires a showing, by "clear and convincing evidence, that the person is mentally ill and meets the criteria for court-ordered mental health services...." Tex.Rev.Civ.Stat. art. 5547-51(a).

Petty contends in her suit that the "clear and convincing evidence" now required by the Code is insufficient under certain provisions of the Constitution of the State of Texas which can only be satisfied by one of the following alternatives: "clear, unequivocal, and convincing" evidence; or evidence "beyond a reasonable doubt." She contends that all future civil-commitment proceedings for indefinite periods must be governed by one or the other of these two alternatives; and that all persons presently confined as a result of earlier proceedings are entitled to a judicial re-determination of their status, under one alternative or the other. She seeks as well to have the court establish certain other substantive and procedural requirements relating to involuntary civil-commitment proceedings and any prolonged periods of confinement that may result.

Following an evidentiary hearing, the trial court sustained Petty's and Advocacy's joint motion, based upon allegations in a first amended original petition, that the actions proceed as a class action under Rule 42. The trial court order designates Petty and Advocacy class representatives, and defines the class as "all persons who are currently or, in the future, will be involuntarily committed to or confined in mental health hospitals or facilities operated by" the Department. In the following language, the trial court determines the class-action "prerequisites" laid down in Rule 42(a):

The Court finds that the composition of the class herein is so numerous that joinder of all members is impractical. The Court also finds that there are questions of law and fact common to the claims of the class members.... The Court finds that the claims of Plaintiff Opal Petty are typical of those of the class.... The Court also finds that [Petty] will adequately and fairly protect the class interests....

Concerning the two grounds for the maintenance of a class action, as these are set out in Rule 42(b), the trial-court order declares:

The Court ... finds that there are questions of law and fact common to the claims of the class members which predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of this controversy[;] ... [t]he Court also finds ... that [the Department] actions or refusals to act, if any, are on the grounds generally applicable to the class, thereby making whatever final injunctive and corresponding declaratory relief granted, if any, herein appropriate with respect to the class.

In its appeal to this Court, the Department contends the order issued from an abuse of trial-court discretion.

SCOPE OF REVIEW

None of the conclusions of law recited in the trial-court order are supported or explained by findings of fact. The trial judge was not obliged to file findings of fact in support of the interlocutory order, but he might have done so within thirty days after it was signed December 23, 1987. Tex.R.App.P.Ann. 42(a)(1) (Pamp.1989) (trial judge need not, but may within thirty days after the "judgment" is signed, file findings of fact and conclusions of law in connection with interlocutory orders). The Department requested under Rule 296 that the trial judge file findings of fact and conclusions of law; however, the appellate record does not reveal that the judge failed to prepare them or that the Department called the omission to his attention within the time required by Rule 297. The Department does not complain on appeal that it was denied findings of fact and conclusions of law, or that the trial court abused its discretion in failing to file them.

The filing of findings of fact and conclusions of law, in connection with appealable interlocutory orders, is of course the better practice. See Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 553 (1953) (where findings of fact underlying appealable interlocutory orders are desired, they "may" be requested under Tex.R.Civ.P. 296 and the predecessor of Tex.R.App.P. 42(a)); cf. Price v. Lucky Stores, Inc., 501 F.2d 1177, 1179 (9th Cir.1974) ("Implicit ... in Fed.R.Civ.P. 23 itself is the requirement that a trial court, in determining whether or not the case should proceed as a class suit, should make certain findings as to the Rule's provisions and their application to the case at bar."); 7B Wright, Miller & Kane, Federal Practice and Procedure § 1785, at 119 (2d ed. 1986) ("[T]he better practice is to make findings in order to aid the appellate court in reviewing the class certification decision.").

The Department bears the burden of providing an appellate record sufficient to demonstrate that the trial-court order rests upon reversible error, as opposed to the contrary presumption which the order carries on appeal to this court. That burden includes a duty to obtain findings of fact if these are necessary to demonstrate reversible error in the order, or to complain in that regard if the trial court improperly denied the Department such findings. The Department did neither. Consequently, we are left to review the Department's "abuse of discretion" contention without the benefit of trial-court findings of fact, in light of the pleadings and the evidence adduced in the evidentiary hearing, as the latter is shown in the statement of facts and the documents introduced in evidence.

In the present state of the appellate record, we are bound to presume the trial court found every issuable factual proposition necessary to sustain the class-action order, provided: (1) the proposition is one raised by the pleadings and supported by the evidence; and (2) the order can be sustained on any reasonable theory that is consistent with the evidence and the applicable law, considering only the evidence favorable to the order. Franklin v. Donoho, 774 S.W.2d 308 (Tex.App.--Austin, 1989). To prevail on appeal in these circumstances, the Department must show that the undisputed evidence negatives one or more of the elements essential to the trial-court order; or the Department may show that Petty's pleadings omit one or more of the essential elements, and that the issues were confined to those raised by the pleadings. Id. These obviously are burdens not easily carried, but they are burdens easily avoided when a litigant understands the importance of a trial court's findings of fact and protects his position accordingly.

The Department does not complain of any defects in its opponents' pleadings, but contends in substance that the undisputed evidence adduced at the hearing negatives certain of the district court's conclusions of law which paraphrase the prerequisites to a class action established in Rule 42(a).

PETTY'S COMPETENCY TO REPRESENT THE CLASS

The Department contends the evidence negatives the prerequisites to a class action found in Rule 42(a)(3) & (4):

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if ... (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

These pertain to the representative's competency to represent the class. Wente v. Georgia-Pacific Corp., 712 S.W.2d 253, 255 (Tex.App.1986, no writ). The two prerequisites overlap, and satisfaction of the "typical-claim" requirement is an integral element of the "fair and adequate protection" requirement, which is to say the latter includes the former...