Sarah Roland

I. Introduction

There is a certain stigma that permeates sexual assault allegations.  It’s an undefinable icky-ness factor.  This is amongst the few categories of criminal allegations that even some criminal defense lawyers won’t touch.  We all know, though, that not every sexual assault allegation is true and not every accused person is found guilty.  The question, then, is how can we overcome the inherent stigma in sexual assault cases? It starts early.  It starts with framing the issue of the case correctly.  It starts with jury selection.

II. First Things First: The Law

Before any strategic discussion of jury selection particular to a sexual assault case can occur, it is imperative that we be familiar with the law governing jury selection, in general.  Chapter 35 of the Code of Criminal Procedure governs jury selection.   While it is prudent to read the whole chapter, the following articles are the most noteworthy:

A. Excuses – CCP 35.03

Sec. 1.  Except as provided by Sections 2 and 3 of this article, the court shall then hear and determine excuses offered for not serving as a juror, including any claim of an exemption or a lack of qualification, and if the court considers the excuse sufficient, the court shall discharge the prospective juror or postpone the prospective juror’s service to a date specified by the court, as appropriate.

Sec. 2.  Under a plan approved by the commissioners court of the county in the same manner as a plan is approved for jury selection under Section 62.011, Government Code, in a case other than a capital felony case, the court’s designee may hear and determine an excuse offered for not serving as a juror, including any claim of an exemption or a lack of qualification.  The court’s designee may discharge the prospective juror or postpone the prospective juror’s service to a date specified by the court’s designee, as appropriate, if:

(1)  the court’s designee considers the excuse sufficient;  and

(2)  the juror submits to the court’s designee a statement of the ground of the exemption or lack of qualification or other excuse.

Sec. 3. A court or a court’s designee may discharge a juror or postpone the juror’s service on the basis of the juror’s observation of a religious holy day or religious beliefs only if the juror provides an affidavit as required by Article 29.012(c) of this code.

B. Excused by Consent – CCP 35.05

One summoned upon a special venire may by consent of both parties be excused from attendance by the court at any time before he is impaneled.

C. Number of Challenges – CCP 35.15

(a)  In capital cases in which the State seeks the death penalty both the State and defendant shall be entitled to fifteen peremptory challenges.  Where two or more defendants are tried together, the State shall be entitled to eight peremptory challenges for each defendant;  and each defendant shall be entitled to eight peremptory challenges.

(b) In non-capital felony cases and in capital cases in which the State does not seek the death penalty, the State and defendant shall each be entitled to ten peremptory challenges.  If two or more defendants are tried together each defendant shall be entitled to six peremptory challenges and the State to six for each defendant.

(c) The State and the defendant shall each be entitled to five peremptory challenges in a misdemeanor tried in the district court and to three in the county court, or county court at law.  If two or more defendants are tried together, each defendant shall be entitled to three such challenges and the State to three for each defendant in either court.

(d) The State and the defendant shall each be entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be impaneled and two peremptory challenges if three or four alternate jurors are to be impaneled.  The additional peremptory challenges provided by this subsection may be used against an alternate juror only, and the other peremptory challenges allowed by law may not be used against an alternate juror.

D. Reasons for Challenge for Cause – CCP 35.16

(a)  A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury.  A challenge for cause may be made by either the state or the defense for any one of the following reasons:

1. 1. That the juror is not a qualified voter in the state and county under the Constitution and laws of the state; provided, however, the failure to register to vote shall not be a disqualification;
   2. That the juror has been convicted of misdemeanor theft or a felony;
   3. That the juror is under indictment or other legal accusation for misdemeanor theft or a felony;
   4. That the juror is insane;
   5. That the juror has such defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render the juror unfit for jury service, or that the juror is legally blind and the court in its discretion is not satisfied that the juror is fit for jury service in that particular case;
   6. That the juror is a witness in the case;
   7. That the juror served on the grand jury which found the indictment;
   8. That the juror served on a petit jury in a former trial of the same case;
   9. That the juror has a bias or prejudice in favor of or against the defendant;
   10. That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in the juror’s opinion, the conclusion so established will influence the juror’s verdict.  If the juror answers in the affirmative, the juror shall be discharged without further interrogation by either party or the court.  If the juror answers in the negative, the juror shall be further examined as to how the juror’s conclusion was formed, and the extent to which it will affect the juror’s action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that the juror feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that the juror is impartial and will render such verdict, may, in its discretion, admit the juror as competent to serve in such case.  If the court, in its discretion, is not satisfied that the juror is impartial, the juror shall be discharged;
   11. That the juror cannot read or write.

No juror shall be impaneled when it appears that the juror is subject to the second, third or fourth grounds of challenge for cause set forth above, although both parties may consent.  All other grounds for challenge may be waived by the party or parties in whose favor such grounds of challenge exist.

In this subsection “legally blind” shall mean having not more than 20/200 of visual acuity in the better eye with correcting lenses, or visual acuity greater than 20/200 but with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees.

(b) A challenge for cause may be made by the State for any of the following reasons:

1. 1. That the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty;
   2. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the defendant; and
   3. That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.

(c) A challenge for cause may be made by the defense for any of the following reasons:

1. 1. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the person injured by the commission of the offense, or to any prosecutor in the case; and
   2. That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefore.

Be careful about using a peremptory strike outside of the strike zone, as a defendant who does so may not then complain about the harm of a juror within the strike zone who could have been removed instead.  Comeaux v. State, 445 S.W.3d 745, 752 (Tex. Crim. App. 2014). 

“To preserve error for a trial court’s denial of a valid challenge for cause, it must be demonstrated on the record that [defendant] asserted a clear and specific challenge for cause, that he used a peremptory challenge on that juror, that all his peremptory challenges were exhausted, that his request for additional strikes was denied, and that an objectionable juror sat on the jury.”  Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996); Sells v. State, 121 S.W.3d 748, 758 (Tex. Crim. App. 2003).  The procedure for preserving error on challenges for cause during the selection of an alternate juror should be the same.  See Cooks v. State, 844 S.W. 2d 697, 721 (Tex. Crim. App. 1992).  The erroneous excusing of a venire-member will call for reversal only if the record shows that the error deprived the defendant of an unlawfully constituted jury.  Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998).  To say this is exceedingly difficult to do is a huge understatement.

Before a potential juror may be excused on the basis of bias or prejudice, the law must be explained to them, and they must be asked whether they can follow that law regardless of their own personal views.  See Thomas v. State, 470 S.W.3d 577, 594 (Tex. App. – Houston [1^st Dist.] 2015, aff’d, 505 S.W.3d 916 (Tex. Crim. App. 2016).

E. Absolute Disqualification – CCP 35.19

No juror shall be impaneled when it appears that he is subject to the second, third or fourth cause of challenge in Article 35.16, though both parties may consent.

“The list of enumerated reasons in the statute are not exclusive…and a prospective juror may be successfully challenged if the facts show that the juror is incapable or unfit to serve on the jury.  A juror’s failure to truthfully answer questions put to him by the court may support a challenge for cause.”  Matthews v. State, 960 S.W.2d 750, 753 (Tex. App. – Tyler 1997, no pet.).

III. Starting Early: Getting the Story

You can’t properly pick a jury in a sexual assault case without knowing your client.  While there are some aspects of the law and sexual assault cases that will exist in every case, jury selection in sexual assault cases should be tailored to the particular facts and issues of the case, and to your client.  So, preparing for jury selection in a sexual assault case starts the minute we first meet the client.  As we listen to the client’s story, we need to begin thinking about the questions a juror would have so that we can be fully prepared to answer these questions later in the arena of the courtroom.

The very first thing defense counsel should do is interview the client and get the story.  Find out who the witnesses are.  Begin a timeline.  Find out what (explicit or implicit) admissions or denials the client may have made to law enforcement or anyone else.  Regardless of what admissions your client may have already made to law enforcement or others, we still have a duty to get the full story from the client and should.  Getting the story from your client will also help you develop a list of witnesses.  It is important to get the full story from your client, not just what happened in the minutes preceding the allegation.  Who had been with or seen the client or accuser that day?  In the days before?  In all probability, law enforcement will not have talked to all the important witnesses in the case.  Likewise, law enforcement may not have seen all the communications between the client and the accuser.  Often, there is useful information in reviewing all the messages and/or posts available.  What is the relationship between the client and the accuser? Attention to these questions, at the very least, lets you know and prepare for any traps ahead. Additionally, it might bring possible defenses to light.

The key is this: think early on about topics for jury selection.  While there are topics of discussion that apply in every jury selection, no jury selection should be “canned.”  This is even more true for sexual assault cases.

IV. Practical Considerations

In any discussion about jury selection, it is important to take into account certain practical considerations.  For example:

• How does the judge handle challenges for cause? Does the judge require challenges to be made during voir dire at the time the challenge arises (which is really awkward but can often end up being beneficial) or are all challenges taken up at the end of voir dire outside the presence of the jury? 
• Is the courtroom equipped with technology necessary for your devices? Do you know how to use the technology available in the courtroom?
• Will the judge allow questionnaires and/or do you want to use a questionnaire?
• Does the judge intend on seating an alternate juror?
• Will the judge impose any sort of time limit on jury selection? A note here: Sometimes there is discussion about judges impermissibly restricting jury selection.  While judges cannot impermissibly restrict jury selection, this type of error is reviewed for abuse of discretion.  Unless you are trying the case for appeal and/or you are absolutely certain you can preserve error correctly and get the case reversed for impermissibly restrictive jury selection, prepare to operate at least generally within any time limits imposed by the trial court.   

V. First Impressions

Before stepping into the courtroom to pick a jury in sexual assault case, or any case for that matter, understand and appreciate that everyone makes first impressions, whether calculated or unintentionally, and we at the defense table are being judged and sized up from the start.  It’s hard to shake a first impression but it can be done.

Here’s where it’s worth it to have a female on the team of lawyers.  Often, the accused in sexual assault cases are males and the complainants are females.  From an amateur psychology point of view, this author has observed that if jurors see a female defense lawyer genuinely getting along with the accused and advocating for the accused it makes him more likeable and acceptable, and any defense more palatable.  Regardless of whether there is female lawyer on the team, be acutely aware of your body language and interactions with the accused.  They are being scrutinized throughout and are as important as most evidence in the case.

VI. No One is For It

No one is “for” sexual assault or any criminal offense. It seems such an obvious thing that it shouldn’t even have to be said, but I find it’s worth saying and it’s worth saying in almost every kind of case – especially sexual assault cases.  We are living in the #MeToo Movement.  First thing, let the jury panel know that no one at the defense table – not me, not co-counsel, not our client – no one is supportive of, or okay with, sexual assault.  It’s an obvious thing but the jury must be reminded and explicitly told especially after the State’s voir dire.  Tell the potential jurors that sexual assault allegations should always be taken seriously and investigated thoroughly.  However, when the evidence just isn’t there, or when it’s clear a sexual assault did not occur, the case should stop, and the accused should be cleared.  That’s why we are here.  Because client didn’t sexually assault the complainant.

VII. Embrace the Bad Answers

Prepare to hear bad answers.  And by bad answers, I mean really bad answers—hateful, spontaneous comments.  It’s a sexual assault trial after all.  As much as some of potential jurors’ comments may make us cringe, remember the comment is from a potential juror.  Take the comment or question as a gift.  First, thank the potential juror for being honest.  Second, make sure you question the potential juror (presumably about a bias or prejudice) so that they are properly challengeable for cause pursuant to Article 35.16(a)(10) of the Code of Criminal Procedure.  See supra.  Then, and most importantly, find out if there are other potential jurors who agree with the (outrageous) comment and challenge those jurors for cause, too.  The bad answers are gifts.  Thankfully, in a group of +/-70 there is usually another potential juror who will come to your rescue.  If not, once you have identified and challenged all those unfavorable jurors, be prepared to pivot to another issue.

And importantly, prepare your client before jury selection that there will be bad, hateful comments made during the course of jury selection.  Explain to your client that it is vitally important that you hear these comments and get these potential jurors excluded.  Better they speak up than be sleeping lions on the jury.

VIII. Theme Begins Here

It is imperative that the theme of the case be woven seamlessly throughout the trial beginning in jury selection.  Whether it’s a false allegation, a revenge allegation, or a bad investigation, the theme of your case should be apparent in jury selection through your statements and questions.  This is where we first frame the issue for the jury. 

For instance, the first question to reframe the issue after an hour of the State’s presentation could be “how does an innocent man get accused of sexual assault?”  There may be silence for a few seconds.  Do not be afraid of the silence.  In a room of 70, someone will speak.  Someone will come up with a real answer to that question.  Then, loop that answer until the steam runs out.  After all, our client is the innocent man.  Then, in discussing the Fifth Amendment, perhaps ask “why might an innocent person decide not to testify?”  Consider also asking: “how would an innocent person respond to an allegation of sexual assault?”  Make the theme clear and carry it throughout jury selection.

IX. Answering the “Why” Question

In any sexual assault case—particularly child sexual assault cases—answering the “why” question is always an issue even though it’s a question that will never appear in the court’s charge to the jury.  Why would a complainant make up an allegation of sexual assault against the client?  It must be answered satisfactorily to win in a sexual assault case.  Sometimes that’s an easy question to answer based on the evidence; sometimes it’s not quite so easy.  However, it is always a good idea to ask the jury panel why a complainant—child or adult—would make an allegation of sexual assault that wasn’t true.  Sometimes, the panel will give you something you hadn’t thought of before.  Most often, though, the panel will hit on your theme.  When it’s an idea from another juror rather than the defense lawyer, it’s more readily accepted.  And, if the juror uses wording that’s a little different than what you have prepared in opening or questioning, rephrase to parrot the juror’s words back.  Even if the potential juror doesn’t end up serving on the jury, the other jurors will recall that another of their own had come up with that reason therefore it must be reasonable.  Make sure you ask the panel the “why” question.

X. Talking about Particulars

It’s easy to get caught up in the legalese of these kinds of cases.  However, it’s important to remember what happens in real life.  It’s important to reflect on your own experiences and those of your friends and family to have any barometer on what happens in real life.  Understand, whether they speak about them or not, as they evaluate evidence, jurors will recall their own personal experiences. 

For instance, if you know that the now-seventeen-year-old complainant will testify that she has been sexually abused since she was 12 years old and she has never before told anyone, it is important to ask the panel about teenage girls.  Draw on your own observations and personal experience to think of questions.  Do they [young teenage girls] talk to each other?  What do they talk to each other about?  Do they talk about personal things?  Are they exposed to sex at school, on the internet, in song lyrics, and on TV?  Do they talk with other teenagers about sexual experiences? 

Or, in a delayed outcry of sexual assault in young adults, what’s it like to be in love so young?  Is it an all-consuming, jealous kind of relationship?  Has anyone ever had a bad break up or know of anyone who has?  The last part of the question is important because a juror may not want to self-disclose but might want to talk about the experience.  Has anyone ever been ashamed of something they have done or how they have acted when they were a teenager?      

XI. Evidence

Prepare the jury for the insanity of circular reasoning that will inevitably occur when the SANE testifies.  Sexual assault by history means that sexual assault occurred regardless of any physical findings.  Both the presence and absence of medical findings indicate sexual abuse when there is sexual abuse by history.  Ask the jurors why type of physical evidence they would expect to see in a sexual assault case.  The panel will give you answers.  They will expect to see something.  Perhaps someone will say that there may be no physical findings. 

XII. Impact of the Blasey-Ford and Kavanaugh Hearings

Many who watched the questioning of now Supreme Court Justice Brett Kavanaugh were disgusted by what they saw and heard. Regardless, something very good happened for defense lawyers in sexual assault cases as a result of those very public hearings.  Anytime someone is acquitted of sexual assault—in a courtroom or in the media—it reminds the public that false allegations of sexual assault do occur.  It reminds the public—especially in the he-said-she-said cases—why the presumption of innocence is so important.  The accused is not required to prove that he or she did not engage in wrongdoing; in most cases it’s impossible to do.  And, more is required to condemn than just a bare allegation, albeit one that is emotional.  That’s certainly helpful to defense lawyers, and the Kavanaugh confirmation hearings brought that conversation to the forefront in a very public way.

XIII. Understand We Have the Edge, Then Listen and Be Prepared to Respond

We always lament that the State gets to go first and last in closing arguments.  However, we have the distinct advantage in both jury selection and opening statement.  We get to go last; we have the last word.  And we should capitalize on this opportunity.  These are early opportunities that shape the course of the trial.  Confirmation bias is a real phenomenon (?) in psychology and cognitive science.  Confirmation bias is the tendency to search for or interpret information in a way that conforms to, and confirms, one’s preconceptions.  In trials, we often accuse law enforcement of engaging in confirmation bias or tunnel vision.  Let’s not forget that, despite our best efforts, we all engage in confirmation bias.  That means jurors do, too.  The more compelling presentation or story, the more likely jurors are to accept it and thereafter subconsciously interpret evidence that confirms the story, while ignoring or rejecting evidence that casts doubt on it.  That’s why it is vital to make the better jury selection presentation and better opening statement.

Also, while it is imperative that we be focused on our theme and presentation and even remembering the names of the potential jurors, it is even more important to listen when the State gives its presentation.  It’s obvious (but not so easy) that we should listen – really listen – to the answers from potential jurors.  It’s often more difficult to listen to what the State says.  It can be easy to tune them out and focus on and refine our own presentations during that 45 minutes or so.  However, to do so misses a prime opportunity.  We should listen to the State and object when required, of course (i.e., commitment questions, etc.).  But we should also be listening for things the State says that we can use later.  Then, we must respond whether in jury selection, opening, questioning, or closing to what the State has said during voir dire.  For instance, when the State uses the CSI example (trials aren’t like CSI; we don’t have the capabilities they have on CSI) to water down jury expectations, we can directly respond to that in jury selection and throughout trial about a real discussion about what evidence is available or would be available if the accusation were true.

XIV. Conclusion

Sexual assault cases are some of the most challenging and time-consuming cases.  They are also some of the most daunting.  But when you start early and frame the issue correctly, jury selection can set the stage for a successful result.

Chapter 81 of the Health and Safety Code is not a common reference in many of our daily practices.  Most of us have never had the occasion to read the Communicable Disease Prevention and Control Act before. However, amid this pandemic, it is worth knowing and reviewing Chapter 81.  Here are a few sections to know:

Sec. 81.002.  RESPONSIBILITY OF STATE AND PUBLIC.  The state has a duty to protect the public health.  Each person shall act responsibly to prevent and control communicable disease.

Sec. 81.003

(1) “Communicable disease” means an illness that occurs through the transmission of an infectious agent or its toxic products from a reservoir to a susceptible host, either directly, as from an infected person or animal, or indirectly through an intermediate plant or animal host, a vector, or the inanimate environment.

(1-a)  “Emergency response employee or volunteer” means an individual acting in the course and scope of employment or service as a volunteer as emergency medical service personnel, a peace officer, a detention officer, a county jailer, or a fire fighter.

(1-b)  “Designated infection control officer” means the person serving as an entity’s designated infection control officer under Section 81.012.

(2)  “Health authority” means:

(A)  a physician appointed as a health authority under Chapter 121 (Local Public Health Reorganization Act) or the health authority’s designee;  or

(B)  a physician appointed as a regional director under Chapter 121 (Local Public Health Reorganization Act) who performs the duties of a health authority or the regional director’s designee.

(7)  “Public health disaster” means:

(A)  a declaration by the governor of a state of disaster;  and

(B)  a determination by the commissioner that there exists an immediate threat from a communicable disease that:

(i)  poses a high risk of death or serious long-term disability to a large number of people;  and

(ii)  creates a substantial risk of public exposure because of the disease’s high level of contagion or the method by which the disease is transmitted.

Sec. 81.021.  PROTECTION OF PUBLIC HEALTH.  The executive commissioner and department shall exercise their powers in matters relating to protecting the public health to prevent the introduction of disease into the state.

Sec. 81.081.  DEPARTMENT’S DUTY.  The department shall impose control measures to prevent the spread of disease in the exercise of its power to protect the public health.

Tex. Health & Safety Code § 81.085.  AREA QUARANTINE;  CRIMINAL PENALTY. 

(a)  If an outbreak of communicable disease occurs in this state, the commissioner or one or more health authorities may impose an area quarantine coextensive with the area affected.  The commissioner may impose an area quarantine, if the commissioner has reasonable cause to believe that individuals or property in the area may be infected or contaminated with a communicable disease, for the period necessary to determine whether an outbreak of communicable disease has occurred.  A health authority may impose the quarantine only within the boundaries of the health authority’s jurisdiction.

(b)  A health authority may not impose an area quarantine until the authority consults with the department.  A health authority that imposes an area quarantine shall give written notice to and shall consult with the governing body of each county and municipality in the health authority’s jurisdiction that has territory in the affected area as soon as practicable.

(c)  The department may impose additional disease control measures in a quarantine area that the department considers necessary and most appropriate to arrest, control, and eradicate the threat to the public health.  Absent preemptive action by the department under this chapter or by the governor under Chapter 418, Government Code (Texas Disaster Act of 1975), a health authority may impose in a quarantine area under the authority’s jurisdiction additional disease control measures that the health authority considers necessary and most appropriate to arrest, control, and eradicate the threat to the public health.

(d)  If an affected area includes territory in an adjacent state, the department may enter into cooperative agreements with the appropriate officials or agencies of that state to:

(1)  exchange morbidity, mortality, and other technical information;

(2)  receive extrajurisdictional inspection reports;

(3)  coordinate disease control measures;

(4)  disseminate instructions to the population of the area, operators of interstate private or common carriers, and private vehicles in transit across state borders;  and

(5)  participate in other public health activities appropriate to arrest, control, and eradicate the threat to the public health.

(e)  The department or health authority may use all reasonable means of communication to inform persons in the quarantine area of the department’s or health authority’s orders and instructions during the period of area quarantine.  The department or health authority shall publish at least once each week during the area quarantine period, in a newspaper of general circulation in the area, a notice of the orders or instructions in force with a brief explanation of their meaning and effect.  Notice by publication is sufficient to inform persons in the area of their rights, duties, and obligations under the orders or instructions.

(f)  The department or, with the department’s consent, a health authority may terminate an area quarantine.

(g)  To provide isolation and quarantine facilities during an area quarantine, the commissioner’s court of a county, the governing body of a municipality, or the governing body of a hospital district may suspend the admission of patients desiring admission for elective care and treatment, except for needy or indigent residents for whom the county, municipality, or district is constitutionally or statutorily required to care.

(h)  A person commits an offense if the person knowingly fails or refuses to obey a rule, order, or instruction of the department or an order or instruction of a health authority issued under a department rule and published during an area quarantine under this section.  An offense under this subsection is a felony of the third degree.

(i)  On request of the department during a public health disaster, an individual shall disclose the individual’s immunization information.  If the individual does not have updated or appropriate immunizations, the department may take appropriate action during a quarantine to protect that individual and the public from the communicable disease.

(j)  A peace officer, including a sheriff or constable, may use reasonable force to:

(1)  secure a quarantine area; and

(2)  except as directed by the department or health authority, prevent an individual from entering or leaving the quarantine area.

SUBCHAPTER G. COURT ORDERS FOR MANAGEMENT OF PERSONS WITH COMMUNICABLE DISEASES

Sec. 81.161.  MOTION FOR ORDER OF PROTECTIVE CUSTODY.

(a)  A motion for an order of protective custody may be filed only in the court in which an application for a court order for the management of a person with a communicable disease is pending.

(b)  The motion may be filed by the municipal, county, or district attorney on behalf of the health authority.  The motion shall be filed by the attorney general at the request of the department.

(c)  The motion must state that:

(1)  the department or health authority has reason to believe and does believe that the person meets the criteria authorizing the court to order protective custody;  and

(2)  the belief is derived from:

(A)  the representations of a credible person;

(B)  the conduct of the person who is the subject of the motion;  or

(C)  the circumstances under which the person is found.

(d)  The motion must be accompanied by an affidavit of medical evaluation.

(e)  The judge of the court in which the application is pending may designate a magistrate to issue protective custody orders in the judge’s absence.

Sec. 81.162.  ISSUANCE OF ORDER.

(a)  The judge or designated magistrate may issue a protective custody order if the judge or magistrate determines:

(1)  that the health authority or department has stated its opinion and the detailed basis for its opinion that the person is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to the public health;  and

(2)  that the person fails or refuses to comply with the written orders of the health authority or the department under Section 81.083, if applicable.

(b)  Noncompliance with orders issued under Section 81.083 may be demonstrated by the person’s behavior to the extent that the person cannot remain at liberty.

(c)  The judge or magistrate may consider only the application and affidavit in making a determination that the person meets the criteria prescribed by Subsection (a). If only the application and certificate are considered the judge or magistrate must determine that the conclusions of the health authority or department are adequately supported by the information provided.

(d)  The judge or magistrate may take additional evidence if a fair determination of the matter cannot be made from consideration of the application and affidavit only.

(e)  The judge or magistrate may issue a protective custody order for a person who is charged with a criminal offense if the person meets the requirements of this section and the head of the facility designated to detain the person agrees to the detention.

(f)  Notwithstanding Section 81.161 or Subsection (c), a judge or magistrate may issue a temporary protective custody order before the filing of an application for a court order for the management of a person with a communicable disease under Section 81.151 if:

(1)  the judge or magistrate takes testimony that an application under Section 81.151, together with a motion for protective custody under Section 81.161, will be filed with the court on the next business day; and

(2)  the judge or magistrate determines based on evidence taken under Subsection (d) that there is probable cause to believe that the person presents a substantial risk of serious harm to himself or others to the extent that the person cannot be at liberty pending the filing of the application and motion.

(g)  A temporary protective custody order issued under Subsection (f) may continue only until 4 p.m. on the first business day after the date the order is issued unless the application for a court order for the management of a person with a communicable disease and a motion for protective custody, as described by Subsection (f)(1), are filed at or before that time.  If the application and motion are filed at or before 4 p.m. on the first business day after the date the order is issued, the temporary protective custody order may continue for the period reasonably necessary for the court to rule on the motion for protective custody.

(h)  The judge or magistrate may direct a peace officer, including a sheriff or constable, to prevent a person who is the subject of a protective custody order from leaving the facility designated to detain the person if the court finds that a threat to the public health exists because the person may attempt to leave the facility.

Sec. 81.163.  APPREHENSION UNDER ORDER.

(a)  A protective custody order shall direct a peace officer, including a sheriff or constable, to take the person who is the subject of the order into protective custody and transport the person immediately to an appropriate inpatient health facility that has been designated by the commissioner as a suitable place.

(b)  If an appropriate inpatient health facility is not available, the person shall be transported to a facility considered suitable by the health authority.

(c)  The person shall be detained in the facility until a hearing is held under Section 81.165.

(d)  A facility must comply with this section only to the extent that the commissioner determines that the facility has sufficient resources to perform the necessary services.

(e)  A person may not be detained in a private health facility without the consent of the head of the facility.

(f)  A protective custody order issued under Section 81.162 may direct an emergency medical services provider to provide an ambulance and staff to immediately transport the person who is the subject of the order to an appropriate inpatient health facility designated by the order or other suitable facility.  The provider may seek reimbursement for the costs of the transport from any appropriate source.

Sec. 81.164.  APPOINTMENT OF ATTORNEY.

(a)  The judge or designated magistrate shall appoint an attorney to represent a person who is the subject of a protective custody order who does not have an attorney when the order is signed.

(b)  Within a reasonable time before a hearing is held under Section 81.165, the court that ordered the protective custody shall provide the person and the person’s attorney with a written notice that states:

(1)  that the person has been placed under a protective custody order;

(2)  the grounds for the order;  and

(3)  the time and place of the hearing to determine probable cause.

Sec. 81.165.  PROBABLE CAUSE HEARING.

(a)  A hearing must be held to determine if:

(1)  there is probable cause to believe that a person under a protective custody order presents a substantial risk of serious harm to himself or others to the extent that the person cannot be at liberty pending the hearing on a court order for the management of a person with a communicable disease;  and

(2)  the health authority or department has stated its opinion and the detailed basis for its opinion that the person is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to public health.

(b)  The hearing must be held not later than 72 hours after the time that the person was detained under the protective custody order.  If the period ends on a Saturday, Sunday, or legal holiday, the hearing must be held on the next day that is not a Saturday, Sunday, or legal holiday.  The judge or magistrate may postpone the hearing for an additional 24 hours if the judge or magistrate declares that an extreme emergency exists because of extremely hazardous weather conditions that threaten the safety of the person or another essential party to the hearing.  If the area in which the person is found, or the area where the hearing will be held, is under a public health disaster, the judge or magistrate may postpone the hearing until the period of disaster is ended.

(c)  A magistrate or a master appointed by the presiding judge shall conduct the hearing.  The master is entitled to reasonable compensation.

(d)  The person and his attorney shall have an opportunity at the hearing to appear and present evidence to challenge the allegation that the person presents a substantial risk of serious harm to himself or others.  If the health authority advises the court that the person must remain in isolation or quarantine and that exposure to the judge, jurors, or the public would jeopardize the health and safety of those persons and the public health, a magistrate or a master may order that a person entitled to a hearing for a protective custody order may not appear in person and may appear only by teleconference or another means the magistrate or master finds appropriate to allow the person to speak, to interact with witnesses, and to confer with the person’s attorney.

(e)  The magistrate or master may consider evidence that may not be admissible or sufficient in a subsequent commitment hearing, including letters, affidavits, and other material.

(f)  The state may prove its case on the health authority’s or department’s affidavit of medical evaluation filed in support of the initial motion.

Sec. 81.166. ORDER FOR CONTINUED DETENTION.

(a)  The magistrate or master shall order that a person remain in protective custody if the magistrate or master determines after the hearing that an adequate factual basis exists for probable cause to believe that the person presents a substantial risk of serious harm to himself or others to the extent that the person cannot remain at liberty pending the hearing on the application.

(b)  The magistrate or master shall arrange for the person to be returned to the health facility or other suitable place, along with copies of the affidavits and other material submitted as evidence in the hearing and the notification prepared as prescribed by Subsection (d).

(c)  A copy of the notification of probable cause hearing and the supporting evidence shall be filed with the district court that entered the original order of protective custody.

(d)  The notification of probable cause hearing shall read as follows:

(Style of Case)

NOTIFICATION OF PROBABLE CAUSE HEARING

On this the _____ day of _________________, 20__, the undersigned hearing officer heard evidence concerning the need for protective custody of ___________ (hereinafter referred to as proposed patient).  The proposed patient was given the opportunity to challenge the allegations that the proposed patient presents a substantial risk of serious harm to self or others.

The proposed patient and the proposed patient’s attorney _________________________ have been given written notice that the proposed patient was placed under an order of protective custody and the reasons for such order on ___________ (date of notice).

I have examined the affidavit of medical evaluation and ________________ (other evidence considered).  Based on this evidence, I find that there is probable cause to believe that the proposed patient presents a substantial risk of serious harm to self (yes ____ or no ____) or others (yes ____ or no ____) such that the proposed patient cannot be at liberty pending final hearing because the proposed patient is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to the public health and the proposed patient has failed or refused to comply with the orders of the health authority or the Department of State Health Services delivered on __________ (date of service) ____________.

Sec. 81.167.  DETENTION IN PROTECTIVE CUSTODY.

(a)  The head of a facility or the facility head’s designee shall detain a person under a protective custody order in the facility pending a court order for the management of a person with a communicable disease or until the person is released or discharged under Section 81.168.

(b)  A person under a protective custody order shall be detained in an appropriate inpatient health facility that has been designated by the commissioner or by a health authority and selected by the health authority under Section 81.159.

(c)  A person under a protective custody order may be detained in a nonmedical facility used to detain persons who are charged with or convicted of a crime only with the consent of the medical director of the facility and only if the facility has respiratory isolation capability for airborne communicable diseases.  The person may not be detained in a nonmedical facility under this subsection for longer than 72 hours, excluding Saturdays, Sundays, legal holidays, the period prescribed by Section 81.165(b) for an extreme weather emergency, and the duration of a public health disaster.  The person must be isolated from any person who is charged with or convicted of a crime.

(d)  The health authority shall ensure that proper isolation methods are used and medical care is made available to a person who is detained in a nonmedical facility under Subsection (c).

Sec. 81.168.  RELEASE FROM DETENTION.

(a)  The magistrate or master shall order the release of a person under a protective custody order if the magistrate or master determines after the hearing under Section 81.165 that no probable cause exists to believe that the person presents a substantial risk of serious harm to himself or others.

Sec. 81.169.  GENERAL PROVISIONS RELATING TO HEARING.

(a)  Except as provided by Subsection (b), the judge may hold a hearing on an application for a court order for the management of a person with a communicable disease at any suitable location in the county.  The hearing should be held in a physical setting that is not likely to have a harmful effect on the public or the person.

(b)  On the request of the person or the person’s attorney, the hearing on the application shall be held in the county courthouse.

(c)  The health authority shall advise the court on appropriate control measures to prevent the transmission of the communicable disease alleged in the application.

(d)  The person is entitled to be present at the hearing.  The person or the person’s attorney may waive this right.

(e)  The hearing must be open to the public unless the person or the person’s attorney requests that the hearing be closed and the judge determines that there is good cause to close the hearing.

(f)  The Texas Rules of Evidence apply to the hearing unless the rules are inconsistent with this chapter.

(g)  The court may consider the testimony of a nonphysician health professional in addition to medical testimony.

(h)  The hearing is on the record, and the state must prove each element of the application criteria by clear and convincing evidence.

(i)  Notwithstanding Subsection (d), if the health authority advises the court that the person must remain in isolation or quarantine and that exposure to the judge, jurors, or the public would jeopardize the health and safety of those persons and the public health, a judge may order that a person entitled to a hearing may not appear in person and may appear only by teleconference or another means that the judge finds appropriate to allow the person to speak, to interact with witnesses, and to confer with the person’s attorney.

Sec. 81.170.  RIGHT TO JURY.

(a)  A hearing for temporary management must be before the court unless the person or the person’s attorney requests a jury.

(b)  A hearing for extended management must be before a jury unless the person or the person’s attorney waives the right to a jury.

(c)  A waiver of the right to a jury must be in writing, under oath, and signed by the person and the person’s attorney.

(d)  The court may permit a waiver of the right to a jury to be withdrawn for good cause shown.  The withdrawal must be made at least seven days before the date on which the hearing is scheduled.

(e)  A court may not require a jury fee.

(f)  The jury shall determine if the person is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health and, if the application is for inpatient treatment, has refused or failed to follow the orders of the health authority.  The jury may not make a finding about the type of services to be provided to the person.

Sec. 81.171.  RELEASE AFTER HEARING.

(a)  The court shall enter an order denying an application for a court order for temporary or extended management if after a hearing the judge or jury fails to find, from clear and convincing evidence, that the person:

(1)  is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health;

(2)  has refused or failed to follow the orders of the health authority if the application is for inpatient treatment;  and

(3)  meets the applicable criteria for orders for the management of a person with a communicable disease.

(b)  If the court denies the application, the court shall order the immediate release of a person who is not at liberty.

Sec. 81.172.  ORDER FOR TEMPORARY MANAGEMENT.

(a)  The judge or jury may determine that a person requires court-ordered examination, observation, isolation, or treatment only if the judge or jury finds, from clear and convincing evidence, that:

(1)  the person is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health and, if the application is for inpatient treatment, has failed or refused to follow the orders of the health authority or department;  and

(2)  as a result of the communicable disease the person:

(A)  is likely to cause serious harm to himself;  or

(B)  will, if not examined, observed, isolated, or treated, continue to endanger public health.

(b)  The judge or jury must specify each criterion listed in Subsection (a)(2) that forms the basis for the decision.

(c)  The person or the person’s attorney, by a written document filed with the court, may waive the right to cross-examine witnesses, and the court may admit, as evidence, the affidavit of medical evaluation.  The affidavit admitted under this subsection constitutes competent medical testimony, and the court may make its findings solely from the affidavit.

(d)  An order for temporary management shall state that examinations, treatment, and surveillance are authorized for a period not longer than 90 days.

(e)  The department, with the cooperation of the head of the facility, shall submit to the court a general program of treatment to be provided.  The program must be submitted not later than the 14th day after the date the order is issued and must be incorporated into the court order.