the 272nd District Court Brazos County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Neill
GRAY CHIEF JUSTICE
appeals from the trial court's Order for Extended Mental
Health Services wherein he was directed to receive in-patient
mental health treatment for one year. Because his due process
rights were not violated, the trial court did not abuse its
discretion in limiting voir dire or in refusing a requested
jury instruction, and T.B.'s complaint regarding a
compelled invocation of his Fifth Amendment right was not
preserved, the trial court's Order is affirmed.
was indicted for stalking. See Tex. Penal Code Ann.
§ 42.072. On July 12, 2018, the trial court found T.B.
to be incompetent to stand trial and ordered that he be
committed for restoration to competency. On March 26, 2019,
based on the final report from Austin State Hospital, the
trial court determined that T.B. continued to be incompetent
to stand trial and was not likely to regain competency in the
foreseeable future. With the felony charge still pending, a
civil commitment jury trial was held. Following the trial,
the jury determined that T.B. was a person with mental
illness and met the criteria for court-ordered mental health
services. Based on the jury's findings, the trial court
ordered extended mental health services for T.B.
first issue, T.B. contends he was denied due process of law
when the commitment proceeding was conducted in violation of
his right to be present. Specifically, T.B. contends the 14th
Amendment required his presence at all the judicial
proceedings conducted for commitment purposes, the Mental
Health Code codifies that right, and neither T.B. nor his
counsel waived that right.
mental health commitment proceedings are civil, rather than
criminal, in nature, and all the procedural requirements of a
criminal hearing are not strictly applicable. See
Campbell v. State, 85 S.W.3d 176, 180 (Tex. 2002);
In the Interest of K.C., 563 S.W.3d 391, 397 (Tex.
App.-Houston [1st Dist.] 2018, no pet.); In re G.D.,
10 S.W.3d 419, 422 (Tex. App.-Waco 2000, no pet.); see
also Addington v. Texas, 441 U.S. 418, 428, 99 S.Ct.
1804, 1810, 60 L.Ed.2d 323 (1979). Nevertheless, commitment
proceedings remain subject to the Due Process Clause which,
generally, requires a person be present with counsel, have an
opportunity to be heard, be confronted with witnesses against
him, have the right to cross-examine witnesses, and to offer
evidence of his own. See Specht v. Patterson, 386
U.S. 605, 608, 610, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967).
Claims regarding deprivation of constitutional rights present
questions of law which we review de novo. State
v. Hodges, 92 S.W.3d 489, 494 (Tex. 2002); In the
Interest of K.C., 563 S.W.3d 391, 396 (Tex. App.-Houston
[1st Dist.] 2018, no pet.); Scally v. Tex. State Bd. of
Med. Exam'rs, 351 S.W.3d 434, 446 (Tex. App.-Austin
2011, pet. ref'd).
process is a flexible concept, and the due process right of a
party to be present at a civil trial is not absolute. In
re M-I L.L.C., 505 S.W.3d 569, 576 (Tex. 2016);
United States Gov't v. Marks, 949 S.W.2d 320,
326 (Tex. 1997). Courts have discretion to exclude parties in
limited circumstances when countervailing interests overcome
a presumption in favor of participation. In re M-I
L.L.C., 505 S.W.3d at 575. At a minimum, due process
requires notice and an opportunity to be heard at a
meaningful time and in a meaningful manner. Univ. of Tex.
Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 930 (Tex.
1995). What process is due depends on a consideration of
three factors: (1) the private interest that will be affected
by the official action; (2) the risk of an erroneous
deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute
procedural safeguards; and (3) the government's interest,
including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail. United States
Gov't v. Marks, 949 S.W.2d 320, 326 (Tex. 1997);
Than, 901 S.W.2d at 930.
record reflects that T.B. was disruptive even before his
trial began. At two pretrial hearings, he talked back to the
trial court and interrupted his attorney when his attorney
tried to speak. Before voir dire, at another pretrial
hearing, the trial court warned T.B.:
You're not going to be permitted to disrupt this trial.
And if you start doing it, if you start speaking when
you're not supposed to speak, I'm going to warn you.
And if you keep doing it, I'm going to have to remove you
from the courtroom. You understand that?
when T.B.'s counsel tried to address the court, T.B.
stated, "Do not interrupt." The trial court counted
that response as the first incident and warned T.B. that,
"If you continue to make that statement and talk over
your attorney, I'm going to have to remove you from the
courtroom." Nevertheless, T.B. talked over his attorney
whenever the attorney tried to speak. T.B. was removed from
the courtroom for the remainder of the pretrial
beginning of voir dire, before the panel was brought into the
courtroom, the trial court admonished T.B. that if he
continued to try to disrupt the hearing in front of the jury,
he would be removed again and placed in the conference room.
T.B. then refused to sit down in the courtroom. At the urging
of counsel for both parties, T.B. was allowed to remain in
the courtroom and remain standing until the jury was brought
in. Once the jury panel was seated, T.B. was instructed by
the trial court to not be disruptive. However, T.B. began
addressing the panel. The trial court warned T.B. that he
would be removed from the courtroom if he continued to be
disruptive. T.B. again addressed the panel. T.B. was removed.
At this time, T.B.'s attorney objected to T.B.'s
removal from the courtroom pursuant to "Article 1,
Section 19 of the Texas Constitution; Article 1.05 of the
Texas Code of Criminal Procedure; Article 1, Section 10 and
15 of the Texas Constitution, the Sixth and Fourteenth
Amendments of the United States Constitution ensuring trial
and effective counsel; and the Fifth and Fourteenth
Amendments of the United States Constitution regarding due
process." Counsel was given a running objection to the
by T.B. necessitating his removal occurred throughout voir
dire. T.B. would be brought into the courtroom when his
presence, with or without the jury present in the courtroom,
was believed to be necessary. When T.B. was disruptive, the
trial court would warn about removal. When T.B. continued to
be disruptive, only then was he removed from the courtroom.
The next day, the same procedure occurred. T.B. was brought
into the courtroom when his presence was deemed necessary,
warned, was disruptive, and was removed. The third day, again
the same procedure occurred.
case, there is no question that T.B. had a significant
interest in being present during his involuntary commitment
hearing. His liberty was at stake. However, because T.B.
potentially could be a danger to himself or others if not
committed, the State's interest in proceeding with the
commitment hearing was substantial. Further, the procedures
used by the trial court protected T.B.'s interest as much
as possible given T.B.'s refusal to follow the
court's instructions and the need for an efficient and
orderly hearing. At every stage of the hearing, T.B. was
given an opportunity to follow the court's instructions
and remain in the courtroom. When he did not, T.B. was
removed to an adjacent room where he could see and hear the
proceedings. No other safeguards were suggested which would
protect T.B.'s interest as much as or more than ...