By Dan Hinde, Partner

As Texas Lawyer litigation reporter Angela Morris recently reported, the state has appointed judges for emergency hearings to deal with coronavirus patients who refuse to self-quarantine.

Involuntary quarantine cases have been extremely rare.  During my 10 years as a Harris County District Judge, I handled just one, and it may have been the only one filed in Harris County during that time.  So I had to become very familiar with Texas law on the subject, particularly Chapter 81 of the Texas Health and Safety Code. Fortunately, the Harris County District Courts had updated their local rules to address quarantine cases several years ago. I was involved in writing them.

I discovered during the case that quarantine cases present a number of unique legal and logistical challenges. Texas law requires that a final hearing occur within 30 days at most, so these questions have to be answered quickly.

For example, because a quarantine order restricts a person’s liberty, the respondent ultimately has the right to a jury trial. So, we had to find a way to balance that right (and the person’s right to a fair trial) with public health concerns and jurors’ and courthouse staff members’ rights to a safe work environment.

Logistically, they also present challenges. For instance, how do you hold hearings–live or by teleconference? Does the Sixth Amendment right to confrontation apply to the person, which might require live testimony by the government’s witnesses?

Where does the court hold hearings? I don’t know about other counties, but Harris County has a designated “courtroom” in Ben Taub Hospital available to handle the preliminary hearings if necessary. But if the matter gets to the jury trial stage, where does the court hold trial?

If the person must be allowed to appear live, must the jury be in the same room? How might this affect the right to a fair trial and the government’s burden of proof?

If the person is brought to the courthouse, where does he/she enter? What halls, elevators, and rooms can he/she enter? What protocols should be enacted for limiting potential exposure to others visiting the courthouse without prejudicing the person’s right to a fair trial?

Judges even need to think about where in the courtroom staff members and witnesses will sit. For example, court reporters usually sit right next to the witness stand. This is down wind of witnesses. What about his/her right under state and federal law to a safe work environment?

The challenges these cases present are, of course, augmented by their rarity. Few courts have any experience at all with them. Fortunately, the Regional Administrative Judges are appointing two district judges per region to serve on call for any emergency quarantine hearings. This is a good first step, but there is a lot of work to do.

Dan Hinde joined Houston-based Schiffer Hicks Johnson in 2019 after 10 years as judge of the 269th District Court of Harris County, Texas. He can be reached at dhinde@shjlawfirm.com or 713-357-5155.