With the first orders list of February, the Texas Supreme Court issued one opinion. It also chose to grant rehearing in two (consolidated) petitions it had previously denied, instead setting them for oral argument later this month.

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This claim was brought by the family of someone who had been evaluated for possible involuntary hospitalization for psychiatric care as a suicide risk. The physician determined that she did not meet the test for involuntary commitment. Three days after her release, she committed suicide. The trial court entered judgment that the doctor had been negligent, awarding $200,000 in damages.

The appeal involved some issues of immunity (arguing that a physician making this kind of evaluation is performing a state function), but the Supreme Court did not speak to those questions. Instead, it focused on the issue of proximate cause, which it had discussed in a previous case involving suicide (the Dowell case described here):

A physician’s failure to hospitalize a person who later commits suicide is a proximate cause of the suicide only if the suicide probably would not have occurred if the decedent had been hospitalized.

Here, the evidence of causation talked about the unlikelihood that the patient would have killed herself during the (perhaps brief) period of involuntary commitment. The testimony included descriptions of how it would have been difficult to find the same means (a gun) while hospitalized.

But the Court held that this was not enough to make the lack of hospitalization a proximate cause. Instead, in this situation, the proof would need to address the suicide risk after an eventual release. Here, it found “no evidence that hospitalization would have prevented Goss’s suicide except for whatever time period she was hospitalized.”

Rehearing granted; cases set for oral argument

The Court has granted rehearing in the following two (consolidated) petitions, setting them for oral argument on February 28, 2013:

The cases involve the TCEQ’s conduct of water-quality hearings and focus on which outsiders to a case have the right to intervene as “affected persons.”

In these cases, TCEQ decided that the parties seeking to intervene were not affected in ways different enough from the general public to warrant their individual appearance at these hearings. The court of appeals reversed, holding that they could not be excluded because the particular facts about whether they were “affected” were entangled with the merits facts before the commission. (The briefing discusses this as a Miranda-type test, a concept from the Texas Tort Claims Act that, if there is some evidence supporting a statutory waiver, the otherwise threshold question of sovereign immunity can be deferred until after the fact finder has resolved the merits facts in the case.)

TCEQ objected to having to follow this two-step procedure and requests broader discretion to determine which persons are “affected” before the hearings begin. After originally denying TCEQ’s petition, the Texas Supreme Court now has granted rehearing and has set the case for argument.