We have a proposal by our local MHMR provider to allow the County to pay for a T-1 line to the MHMR offices and then use their equipment for our judge to conduct mental commitment hearings on our patients in the Big Spring State Hospital.

Obviously, this would involve our county judge holding county court in a location that is not the county courtroom or the courthouse, even.

I know that other places do this sort of thing (and this is a legitimate claim of "other counties do it"), but I wonder if there is an open courts issue or if our judge can do this without any problem.

If anyone has studied this issue, I would appreciate input.

I think the real problem may be statutory, rather than constitutional. Health & Safety Code section 574.031(a) authorizes the judge to conduct a hearing on court-ordered mental health services "at any suitable location in the county" (emphasis added). If the proposed patient so elects, subsection (b) requires the hearing to take place in the county courthouse. Further, under subsection (c), the proposed patient is entitled to be present during the hearing, though the proposed patient or his/her attorney may waive that right. Even if the hearing is for extended court-ordered mental health services under section 574.035, section 574.034 is the general hearing provision for proceedings under subchapter C, so it would presumably apply in either event. If the proposed patient (or the proposed patient's lawyer) signs a waiver, you probably don't have any problem. See Greene v. State, 537 S.W.2d 100, 102 (Tex. Civ. App.--Houston [1st Dist.] 1976, no writ). The Greene court also noted that due process concerns require the presence of the proposed patient unless that right is knowingly and intellegently waived by the patient or by adversary counsel acting on her behalf and for good cause shown. Id.

Moreover, section 574.008(c) requires that, if a patient is receiving temporary inpatient mental health services in a county other than the county that initiated the court-ordered mental health services, the county in which the proceedings originated "shall pay the expenses of transporting the patient back to the county for the hearing unless the court that entered the temporary order arranges with the appropriate court in the county in which the patient is receiving services to hold the hearing on court-ordered inpatient mental health services before the original order expires." For a discussion of the costs that may be associated with this latter arrangement, see Op. Tex. Att'y Gen. No. JC-0364 (2001). Thus, the Mental Health Code by its own terms appears to contemplate the physical presence of the proposed patient, either in the county that initiates proceedings or in the county of treatment under the aegis of that county's CA and court of appropriate jurisdiction. Such an arrangement is what we had to use when we were still in the Big Spring catchment area to keep from having to truck patients back to Amarillo for extended services hearings. As courts are prone to avoid constitutional issues if a statutory construction will avoid them, I think that stands as your major roadblock. But I could be wrong.

Note to all lurkers: See. I can actually (albeit occasionally) post something resembling a serious discussion of the law.

I am duly impressed. I will be more impressed, however, next week!

As long as the T-1 is a secure line, I think it's OK.
A commitment hearing is a civil matter, and the state's power is not exercised in a punitive sense, as Addington v. Texas, 99 S. Ct. 1804 (1979) and its progeny make clear. Does "presence" encompass closed circuit television? There's a very nice discussion in United States v. Baker, 45 F.3d 837 (1995), and it's used in immigration and 1983 actions (42 USCS 1997[e]). See also, 55 Md. L. Rev. 1001. Due process is satisfied, I believe. If notice is given that this is how the hearing will be held, and there is no objection, why transport the patient if due process is satisfied?
I think there's a real benefit to the proposed patient in having a judge from the county where he lives and has relatives, rather than the county where his only connection is that he's in the treatment facility there.
Re: extended commitments. You do need a jury trial waiver. We haven't had to face the issue of a refused waiver. There is a case (Edwards v. Logan, 38 F. Supp. 2d 463 [1999]) where the 1983 jury trial was held through closed circuit television. I guess we'll cross that bridge if we come to it!

You're probably right. But I'm not sure I'm entirely comfortable resting on cases that find a litigant has received all the process he's due by a closed-circuit video arrangement. A clever lawyer might seize upon the difference between a closed-circuit video feed and a telephone conference. Where there is video, the patient's attorney would have the opportunity to observe the deameanor and body language of the witness and develop impeaching examination and evidence accordingly. On the other hand, if the patient's counsel was participating where the judge was, there's the issue of separation of the patient from his lawyer inhibiting free discussion between them about the case, its strategies and the effect of how it's playing out without others listening in. Again, though, I think this is more of a statutory issue. When you read sections 574.008 and 574.031 together, the expressly mentioned options you have for making sure the proposed patient is "present" (where the patient is receiving treatment in a county other than the treating county) are to transport him/her back or have the hearing in the county where treatment is being administered. Add to this the fact that the judge is authorized under section 574.031(a) to hold hearings at locations other than the courthouse, including at the hospital. See id. at (d). It seems a bit of a stretch to say that legislative intent to allow the process to proceed by telephone can be inferred, particularly when the legislature could have said so expressly (and cast us back into the murky waters of due process concerns) as it did partially in the Open Meetings Act, for instance.

I think maybe I need to clarify. These hearings would be conducted via closed-circuit video over the Internet, via the T-1 line. Thus, everyone involved could see everyone else.

The attorney would be a Big Spring attorney who would be present with the patient on that end of the system.

It is my understanding that Taylor County uses this sort of set up to conduct hearings on their patients in the Big Spring State Hospital.

The original concern posed to me was whether the county court can hold these proceedings at a location (the MHMR office in our case) other than the County Court courtroom. I think that concern is answered in the Mental Health Code's provision allowing the Judge to hold the hearings elsewhere.

All this being said, do you think that the patient can be "present" at the hearing if he is present with his attorney via video feed? Obviously, I do not want a system that works one way for patients who waive being present in Hale County (allowing us to utilize the T-1 setup) and another for patients who want to be physically present at the court proceedings (causing us to either have to transport them back or beg Howard County to do the hearing for us).

One would hope the legislature would soon correct this omission. These are fragile people, who shouldn't have to undergo a long trip to appear before their county judge.

Yes, we also use ad litems from Big Springs, so counsel is with the patient during the hearings.

Because this is not a criminal hearing, the cases seem to support this as being "present", though there is nothing exactly on point for civil proceedings in this circuit, at least not that I have found.

We don't have them sign waivers. Rather, we send notice that the hearings are being held in this manner. There has never been any objection made by any of the patients or ad litems to proceeding this way.

The patients seem very comfortable with television, and testify freely.

Both Jim and Etta, whom I know and know to be excellent lawyers, are right. I think their arguments are sound, and I agree with Etta that any arrangement that can temper the cold nature of judicial proceedings for mental patients is salutary. Perhaps I got a bit too fervent playing devil's advocate (in addition to showing my utter lack of command over technological terminology -- I wouldn't know a T-1 line from a chorus line). I join with Etta in hopes that the legislature would consider this dilemma and expressly authorize in plain terms the video arrangement discussed above. But, on a positive note, this discussion illustrates why I absolutely love this forum. Good lawyers can talk about, and disagree on, important legal issues facing our counties. And look what comes from it. All are better educated in the end, and sometimes even an old dog like me picks up a pointer or two for use in helping my own county. This is so cool!

Has anyone considered HSC � 574.202? It only allows witnesses (Docs, etc.) to testify via TV.
I talked with MHMR legal awhile back and they didn't think the entire hearing could be via TV: i.e., patient and atty at hosp., everyone else at courhouse. I know some counties are doing this (Sorry RR), but I don't think its legal.

Do you mean you talked to the legal staff for MHMR in Austin? Our community center that administrates the local MHMR program is the driving force behind the proposal here. I would be interested to know if MHMR, the state agency, is taking a view different from their local representatives.

I wonder if Section 574.202 is aimed at preventing Confrontation Clause problems. It seems to envision a hearing in which the witness is not in the same place as the patient. In the scenario proposed here, the witness would presumably be in Big Spring with the patient and patient's lawyer.

Frankly, I am not sure that having these video hearings is going to be as easy as everyone thinks.

I was on vacation - jeeping in Colorado -- last week and just got back.

I am impressed and delighted at the sophistication of the discussion of the issues in this thread, as mental health law is a relatively arcane area of law and there are few of us in the state that expend a great deal of time thinking about these matters. In addition to those mentioned, this particular issue resulted in more than 25 hits on Versuslaw and is nicely discussed -- with regard to criminal cases only -- in Romero v. State, 136 S.W.3d 680 (Tex.App.--Texarkana 2004), and Gonzalez v. State, 818 S.W.2d 756 (Tex. Crim. App. 1991.

The discussion of the patient's waiver seemed particularly on-point and I would be inclined to grant some deference to a patient's desire to be physically present when other witnesses testify, as well as be physically in the presence of the judge. Absent such objections, however, I cannot contemplate but that use of closed-circuit television provides a more expeditious way of conducting hearings. That is, while the patient may desire to be physically present that may well require setting of the hearing beyond the normal 14 day period in order to accomodate the logistics of transportation.

It is important, however, that these hearings be more than pro forma, that the expert be required to disclose the basis of his/her opinion else - as one court stated, "there would be no necessity for a hearing whatsoever..", and that evidence of the necessity for commitment be supported by a recent overt act or continuing pattern of behavior.

Those of us who are heavily invested in seeing that due process is afforded in these cases thank all of your for your thoughtful commentary and diligence.

This subsection allows the patient and his attorney to communicate without being heard or recorded, and so would seem to contemplate that the patient might also be involved in the recording under this section. I agree that this was probably written to avoid the Confrontation Clause problem if the MH professional witness isn't at the patient's location during the hearing. (In our system, they are in the same location.)

We've been doing our hearings this way since January, 2005, and haven't had any trouble.

I agree with Dr. Jennings that these certainly must not be pro forma.

[This message was edited by Etta Warman on 09-14-06 at .]

[This message was edited by Etta Warman on 09-15-06 at .]