Mental Health in South Padre Island eBook

The seminar is sponsored by CDLP, a project of TCDLA, funded by the Texas Court

Criminal Defense Lawyers Project

Mental Health

Table of Contents

speakers topic

Dr. Kristi Compton Insanity

Brian East State Law & ADA Accommodations

Alex Fuller Communicating with Your Client Sarah Roland 702/705 and Mental Health

MENTAL HEALTH SEMINAR

SEMINAR INFORMATION

Beach

Director

Thursday,

Ferguson

Time CLE Topic Speaker

8:00 am Registration/Continental Breakfast

8:30 am Opening Remarks Alyse Ferguson

8:45 am 1.0 Insanity Dr. Kristi Compton

9:45 am Break

10:00 am 1.0 State Law & ADA Accommodations

Brian East

11:00 am Lunch Line Begins 11:30 pm 1.0 Lunch Presentation: Mental Health Mitigation Dr. Jeanine Galusha

12:30 pm Break 12:45 pm 1.0 Communicating with Your Client Alex Fuller Ethics

1:45 pm 1.0 702/705 and Mental Health Sarah Roland

2:45 pm Break

3:00 pm 1.0 CCP 16.22 and Civil Commitments

4:00 pm Adjourn

Hon. Dave Jahn

MENTAL HEALTH SEMINAR

SEMINAR INFORMATION

Criminal Defense Lawyers Project

Mental Health

October 27, 2022 Beach Resort at South Padre Island South Padre Island, TX

Topic:

Insanity Defense, Variations, and Stalkers

Speaker: Dr. Kristi Compton 400 N Saint Paul St., Ste. 1150 Dallas, TX 75201 6869 214.999.0011 phone 877.747.2080 fax forensicpsychoffice@gmail.com email

Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Insanity Defense, Variations, and Stalkers

Presented by Kristi Compton, Ph.D.

Most states and the federal government recognize an insanity defense (18 U.S.C., 2010). Montana, Utah, Kansas, and Idaho are the only states that do not. However, the insanity defense is rarely used and hardly ever successful. This is generally because of the difficulty in proving legal insanity.

Many criminal defendants suffer from mental illness and can produce evidence of this illness such as psychiatric or layperson testimony. Often, mental disturbance is apparent from the defendant’s conduct under the circumstances. However, legal insanity differs from medical diagnoses and is generally much more difficult to establish. The rationale behind creating a different standard for legal insanity is the role of prosecution is to serve justice and protect the community. Criminal prosecution should deter as well as incapacitate. While the purpose of a medical diagnosis is to eventually cure the defendant’s disorder, the purpose of criminal law is to punish the defendant. Thus, the defendant’s conduct is not excused if the defendant or society can benefit from punishment.

The policy supporting the insanity defense is twofold. First, an insane defendant does not have control over his or her conduct. This is similar to a defendant who is hypnotized, or sleepwalking. Second, an insane defendant does not have the ability to form criminal intent. Without the ability to control conduct, or the understanding that conduct is evil or wrong by society’s standards, an insane defendant presumably will commit crimes again and again. Thus, no deterrent effect is served by punishment, and treatment for the mental defect is the appropriate remedy.

Four variations of the insanity defense currently exist: M’Naghten, irresistible impulse (Model Penal Code), substantial capacity, and Durham.

M’Naghten Insanity Defense

The M’Naghten insanity defense, also called the right-wrong test, is the most common insanity defense in the United States. It is the basis for the Texas Insanity Statute. It is also the oldest and was created in England in 1843. The defense is named after Daniel M’Naghten. M’Naghten was under the paranoid delusion that the Prime Minister of England, Sir Robert Peel, was trying to kill him. When he tried to shoot Sir Peel from behind, he inadvertently shot Sir Peel’s Secretary, Edward Drummond, who thereafter died. M’Naghten was put on trial for murder and to the shock of the nation, the jury found him not guilty by reason of insanity (Queen v. M’Naghten, 2010). After a public outcry at this verdict, the British House of Lords developed a test for insanity that remains relatively intact today.

The M’Naghten insanity defense is cognitive and focuses on the defendant’s awareness, rather than the ability to control conduct. The defense requires two elements. First, the defendant must be suffering from a mental defect at the time he or she commits the criminal act. The mental defect can be called a “defect of reason” or a “disease of the mind,” depending on the jurisdiction. Second, the trier of fact (the judge or jury) must find that because of the mental defect, the defendant did not know either the nature and quality of the criminal act or that the act was wrong.

The terms “defect of reason” and “disease of the mind” can be defined in different ways, but in general, the defendant must be cognitively impaired to the level of not knowing the nature and quality of the criminal act, or that the act is wrong. Some common examples of mental defects and diseases are psychosis, schizophrenia, and paranoia.

Jurisdictions vary as to the level of awareness the defendant must possess. Some jurisdictions use the term “know,” or “understand,” (Cal. Penal Code, 2010) while others use the term “appreciate” (Ala. Code, 2010). If know or understand is the standard, the trier of fact must ascertain a basic level of awareness under the attendant circumstances. If appreciate is the standard, the trier of fact must analyze the defendant’s emotional state, and evidence of the defendant’s character or personality may be relevant and admissible.

Example of case inappropriate for the M’Naghten Insanity Defense:

Susan wants to marry a single man, but he does not want the responsibility of caring for her children. Susan decides to kill her children. She drives her two sons, aged three and five, out to the lake. She puts the car in park, gets out, and then puts it in gear, watching as it drives into the water. Both of her sons drown. Later that day, Susan files a police report stating that a stranger kidnapped her children at gunpoint. While searching the area for the kidnapper, the police discover the children’s bodies and evidence indicating that Susan killed them.

Susan recants her kidnapping story and admits she killed her children. However, she claims she is not guilty by reason of insanity. Susan’s claim will probably not be successful if she killed her children in a jurisdiction that recognizes the M’Naghten insanity defense. Susan tried to mislead the police, demonstrating her awareness that she had done something wrong. Thus, although Susan’s behavior appears mentally imbalanced, she clearly knew the difference between right and wrong, and her conduct is not excusable under M’Naghten’s rigid requirements.

Irresistible Impulse

Another variation of the insanity defense is the irresistible impulse defense. This defense has lost popularity over the years and is rejected by most of the states and the federal government (18 U.S.C., 2010). In some cases, the irresistible impulse insanity defense is easier to prove than the M’Naghten insanity defense, resulting in the acquittal of more mentally disturbed defendants.

The irresistible impulse insanity defense generally supplements M’Naghten, so the focus is on the defendant’s awareness (cognitive) and the defendant’s will (ability to control conduct). In jurisdictions that recognize the irresistible impulse insanity defense, the first element is the same as M’Naghten; the defendant must suffer from a mental defect or disease of the mind. However, the second element adds the concept of volition, or free choice. If the defendant cannot control his or her conduct because of the mental defect or disease, the defendant’s conduct is excused even if the defendant understands that the conduct is wrong (State v. White, 2010). This is a softer stance than M’Naghten, which does not exonerate a defendant who is aware conduct is wrong. The challenge for the trier of fact in an irresistible impulse jurisdiction is distinguishing between conduct that can be controlled and conduct that cannot.

The Substantial Capacity Test

The substantial capacity test is the insanity defense created by the Model Penal Code. The Model Penal Code was completed in 1962. By 1980, approximately half of the states and the federal government adopted the substantial capacity test (also called the Model Penal Code or ALI defense) (Rolf, C. A., 2010). However, in 1982, John Hinckley successfully claimed insanity using the substantial capacity test in his federal trial for the attempted murder of then-President Ronald Reagan. Public indignation at this not-guilty verdict caused many states and the federal government to switch from the substantial capacity test to the more inflexible M’Naghten standard (18 U.S.C., 2010). In addition, jurisdictions that switched to M’Naghten also shifted the burden of proving insanity to the defendant (Rolf, C. A., 2010). The defendant’s burden of proof for the insanity defense is discussed shortly.

The substantial capacity test is as follows: “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law” (Model Penal Code § 4.01(1)). The defense has two elements. The first element requires the defendant to have a mental disease or defect, like the M’Naghten and irresistible impulse insanity defenses. The second element combines the cognitive standard with volitional, like the irresistible impulse insanity defense supplementing the M’Naghten insanity defense.

In general, it is easier to establish insanity under the substantial capacity test because both the cognitive and volitional requirements are scaled down to more flexible standards. Unlike the M’Naghten insanity defense, the substantial capacity test relaxes the requirement for complete inability to understand or know the difference between right and wrong. Instead, the defendant must lack substantial, not total, capacity. The “wrong” in the substantial capacity test is “criminality,” which is a legal rather than moral wrong. In addition, unlike the irresistible impulse insanity defense, the defendant must lack substantial, not total, ability to conform conduct to the requirements of the law. Another difference in the substantial capacity test is the use of the word “appreciate” rather than “know.” As stated previously, appreciate incorporates an emotional quality, which means that evidence of the defendant’s character or personality is relevant and most likely admissible to support the defense.

Guilty but Mentally Ill

Some states adopted the guilty but mentally ill verdict. A defendant who is found guilty but mentally ill is not acquitted but punished and treated for mental health simultaneously while in prison.

Disposition of the Legally Insane

The not guilty by reason of insanity verdict means that the defendant is absolved from criminal responsibility and devoid of any criminal record for the offense. However, it does not mean that the defendant is free to return to society.

In several states and federally, a defendant who is found not guilty by reason of insanity is automatically committed to a treatment facility until there is a determination that the person is no longer a danger to society.

Temporary Insanity

Many states also recognize temporary insanity, which does not differ in analysis from permanent insanity except for the duration of the mental illness.

Example of Temporary Insanity:

In Virginia in 1994, Lorena Bobbitt was tried for the crime of slicing off her husband’s penis. Bobbitt pleaded not guilty to malicious wounding by reason of insanity. Bobbitt successfully established the irresistible impulse insanity defense by presenting evidence of years of spousal abuse, a forced abortion, and rape on the night of the incident. After the jury returned the verdict of not guilty by reason of insanity, Bobbitt was evaluated, deemed mentally competent, and released.

Stalkers and the Insanity Defense

Rejected Stalker: Rejected stalking arises in the context of the breakdown of a close relationship. Victims are usually former sexual intimates. However, family members, close friends, or others with a very close relationship to the stalker can also become targets. The initial motivation of a rejected stalker is either attempting to reconcile the relationship, or to exacting revenge for perceived rejection. In many cases rejected stalkers present as ambivalent about the victim and sometimes appear to want the relationship back, while at other times they are clearly angry and want revenge on the victim. In some cases of protracted stalking, the behavior is maintained as it becomes a substitute for the past relationship and thus allows the stalker to continue to feel close to the victim. In other cases, the behavior is maintained because it allows the stalker to salvage their damage selfesteem and feel better about themselves.

This type of stalker would rarely meet criteria for the insanity defense.

Resentful Stalker: Resentful stalking arises when the stalker feels as though they have been mistreated or that they are the victim of some form of injustice or humiliation. Victims are strangers or acquaintances who are seen to have mistreated the stalker. Resentful stalking can arise out of a severe mental illness when the perpetrator develops paranoid beliefs about the victim and uses stalking as a way of ‘getting back’ at the victim. The initial motivation for stalking is the desire for revenge or to ‘even the score’ and the stalking is maintained by the sense of power and control that the stalker derives from inducing fear in the victim. Often Resentful stalkers present themselves as a victim who is justified in using stalking to fight back against an oppressing person or organization.

Resentful stalkers may meet criteria for the insanity defense.

Intimacy Seeking Stalker: Intimacy Seeking stalking arises out of a context of loneliness and a lack of a close confidante. Victims are usually strangers or acquaintances who become the target of the

stalker’s desire for a relationship. Frequently Intimacy Seeking stalkers’ behavior is fueled by a severe mental illness involving delusional beliefs about the victim, such as the belief that they are already in a relationship, even though none exists (erotomanic delusions). The initial motivation is to establish an emotional connection and an intimate relationship. The stalking is maintained by the gratification that comes from the belief that they are closely linked to another person.

This type of stalker may meet criteria for the insanity defense.

Incompetent Suitor Stalker: The Incompetent Suitor stalks in the context of loneliness or lust and targets strangers or acquaintances. Unlike the Intimacy Seeker, however, their initial motivation is not to establish a loving relationship, but to get a date or a short-term sexual relationship. Incompetent Suitors usually stalk for brief periods, but when they do persist their behavior is usually maintained by the fact that they are blind or indifferent to the distress of victim. Sometimes this insensitivity is associated with cognitive limitations or poor social skills consequent to autism spectrum disorders or intellectual disability.

This type of stalker may meet criteria for the insanity defense.

Predatory Stalker: Predatory stalking arises in the context of deviant sexual practices and interests. Perpetrators are usually male, and victims are usually female strangers in whom the stalker develops a sexual interest. The stalking behavior is usually initiated as a way of obtaining sexual gratification (e.g., voyeurism targeting a single victim over time), but can also be used a way of obtaining information about the victim as a precursor to a sexual assault. In this sense the stalking is both instrumental and also gratifying for those stalkers who enjoy the sense of power and control that comes from targeting the usually unsuspecting victim.

High unlikely the predatory stalker would ever meet full criteria for insanity due to the underpinning of psychopathy and the motivation for the stalking.

Criminal Defense Lawyers Project

Mental Health

October 27, 2022 Beach Resort at South Padre Island South Padre Island, TX

Topic:

ADA Accommodations

Speaker: Brian East

Senior Attorney Disability Rights Texas 2222 W Braker Lane Austin, TX 78758 512.407.2718 phone beast@drtx.org email www.DRTx.com website

Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

ADA ACCOMMODATIONS

TCDLA Mental Health Seminar South Padre Island, Texas October 27, 2022

Brian East Disability Rights Texas beast@drtx.org

This paper discusses the Americans with Disabilities Act and analogous laws, and their application to private attorneys and to state and local court proceedings. It also discusses the kinds of accommodations the ADA may require of courts, attorneys, probation departments, etc.

1. ADA OVERVIEW

The ADA forbids discrimination against people with disabilities in major areas of public life, including employment (Title I), public services (Title II), and public accommodations (Title III). PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001). The ADA is to be broadly interpreted to accomplish its remedial purposes. Spector, supra, 545 U.S. at 132; id. at 145 (J. Ginsburg, concurring in part); PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001) (“In the ADA, Congress provided that broad mandate. In fact, one of the Act’s ‘most impressive strengths’ has been identified as its ‘comprehensive character,’ and accordingly the Act has been described as ‘a milestone on the path to a more decent, tolerant, progressive society.’”) (citations omitted).

2. ADA TITLE III OBLIGATIONS OF PRIVATE ATTORNEYS

a. General Obligations

Title III of the ADA prohibits discrimination on the basis of disability “in the full an equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a); Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128 (2005); Griffin v. Public Access Community Television, 2010 WL 3815797, at *1 (W.D. Tex. Sept. 27, 2010).

Public accommodations are defined through a list of twelve types of entities. 42 U.S.C. §12181(7); 28 C.F.R. §36.104.1 A lawyer’s office is a place of public accommodation. 42 U.S.C. § 12181(7)(F).

1 The Title III regulations (in 28 C.F.R. Part 36) “are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052, 1060 (5th Cir. 1997).

Title III lists various types of disability discrimination, including but not limited to:

• denial of participation, 42 U.S.C. § 12182(b)(1)(A)(i); 28 C.F.R. § 36.202(a);

• providing unequal benefit, 42 U.S.C. § 12182(b)(1)(A)(ii); 28 C.F.R. § 36.202(b); and

• providing separate benefit. 42 U.S.C. § 12182(b)(1)(A)(iii); 28 C.F.R. § 36.202(c).2

b. Reasonable Modifications

Title III also prohibits the failure to make reasonable modifications in policies, practices and procedures necessary for persons with disabilities. 42 U.S.C. §12182(b)(2)(A)(ii); 28 C.F.R. § 36.302. Most of the case law regarding the reasonable accommodation has focused on the employment context, but “the concept of reasonable accommodation or reasonable modification (as it is termed in other parts of the ADA) is crucial to the statute as a whole.” Alex B. Long, Reasonable Accommodation As Professional Responsibility, Reasonable Accommodation As Professionalism, 47 U.C. Davis L. Rev. 1753, 1800 (2014).

For example, Title III “might require a lawyer to hold client meetings at an accessible location or alter the lawyer’s normal modes of client communication.” Id., at 1801.

Importantly, the accommodations that the ADA might require of a lawyer are also the kinds of things that may already be required of the lawyer as an ethical matter. For example, a lawyer’s ethical duty of effective communication with a client requires a lawyer to explain matters in a manner that permits the client to make informedandintelligentdecisions. Goodlawyersalreadyvarytheircommunication style depending upon the client they are addressing, and even bad lawyers cannot, as a matter of professional responsibility, insist upon a one size fits all approach when it comes to explaining matters to clients. Thus, altering one’s communication style in order to reasonably communicate with a client whether disabled or not is a matter of professional responsibility.

Id. at 1801 02 (footnotes omitted).

There are specific Title III provisions relating to service animals, 28 C.F.R. 36.302(c); Pena v. Bexar County, Texas, 726 F. Supp. 2d 675, 684 (W.D. Tex. 2010). Title III protection is limited to dogs and (with some restrictions) miniature horses. The definition of service animal also includes psychiatric service animals, although it excludes comfort animals. See 28 C.F.R. §§ 36.104 and 36.302(c). Modifying a “no animals” policy to allow full access for a service animal is generally required. Pena v. Bexar County, Texas,726F.Supp.2d 675,684(W.D.Tex. 2010), citing Johnson v. Gambrinus Co./Spoetzl Brewery.

Policies need not be modified if doing so would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. §12182(b)(2)(A)(ii); 28

2 Note that the above three prohibitions cannot be cannot be avoided by means of contract. 42 U.S.C. § 12182(b)(1)(A)(iv); 28 C.F.R. § 36.202(d); PGA Tour, Inc. v. Martin, 532 U.S. 661, 679 (2001).

C.F.R. § 36.302(a). See PGA Tour, Inc. v. Martin, 532 U.S. 661, 682 et seq. (2001) (finding use of golf cart did not fundamentally alter professional golf). Note, too, that Title III generally does not require a business to alter or modify the actual goods or service that it offers for sale. See, e.g., McNeil v. Time Insurance Co., 205 F.3d 179, 188 (5th Cir. 2000); Sapp v. MHI Partnership, Ltd., 199 F. Supp. 2d 578, 585 (N.D. Tex. 2002); Dehoyos v. Allstate Corp., 2002 WL 1491650, at *4 (W.D. Tex. Apr. 5, 2002).

c. Communication Access

Title III requires provision of “auxiliary aids and services” if necessary to ensure that a person with a disability is not excluded, denied services, segregated, or treated differently. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. §36.303(a) Title III also requires that public accommodations furnish appropriate auxiliaryaids andservices ifnecessary to ensure effective communication with individuals with disabilities. 28 C.F.R. 36.303(c); 28 C.F.R. Part 36 App. B, § 36.303; Technical Assistance Manual § III 4.3200.3

“

Auxiliary aids and services” include, but are not limited to qualified interpreters,4 video remote interpreting (VRI),5 notetakers, computer aided transcription services, written materials, telephone handset amplifiers, assistive listening devices or systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, TDDs, videotext displays, qualified readers,6 taped texts, audio recordings, Brailled materials, large print materials, and screen reader software, acquisition or modification of equipment or devices, and other similar services and actions. 42 U.S.C. § 12103(1); 28 C.F.R. §36.303(b), (d), and (e); Betancourt v. Federated Dept. Stores, 732 F. Supp. 2d 693, 711 (W.D. Tex. 2010. See also 28 CF.R. Part 36 App. B, § 36.303.

The individual with a communication disability should be consulted as to the choice of aid or service they prefer.28 C.F.R. Part 36 App.B, § 36.303; Technical Assistance Manual § III 4.3200.

Note too, that private businesses may be required to provide interpreters to communicate with companions, if they are an appropriate person to communicate with 28 C.F.R. §36.303(c). Also, a private business may not require clients or customers to bring their own interpreters, nor may they require that family members interpret. Id

Various commenters have written on the legal, and ethical, obligations when dealing with a deaf client. See, e.g., Alex B. Long, Reasonable Accommodation As Professional Responsibility,

3 DOJ Guidance includes 28 C.F.R. Part 36 App. B (issued with the Title III regulations), and the Technical Assistance Manual and Supplement, which are available online at https://www.ada.gov/taman3.html and https://www.ada.gov/taman3up.html Such guidance is entitled to deference because the Department of Justice was delegated the duty “to render technical assistance explaining the responsibilities of covered individuals and institutions.” Sapp v. MHI Partnership, Ltd., 199 F. Supp. 2d 578, 586 (N.D. Tex. 2002) (relying on Title III Technical AssistanceManual), quoting Bragdon v. Abbott,524 U.S.624,646(1998); No Barriers, Inc. v. BRH Texas GP, L.L.C., 2001 WL 896924, at *3 (N.D. Tex. Aug. 2, 2001) (similar).

4 “Qualified interpreters” are defined in 28 C.F.R. § 36.104.

5 VRI is defined in 28 C.F.R. § 36.104. Note, too, that there are performance and training standards for VRI 28 C.F.R. §36.303(f).

6 “Qualified readers” are defined in 28 C.F.R. § 36.104

Reasonable Accommodation As Professionalism, 47 U.C. Davis L. Rev. 1753, 1800 03 (2014); Elana Nightingale Dawson, Lawyers’ Responsibilities Under Title III of the ADA: Ensuring Communication Access for the Deaf and Hard of Hearing, 45 Val. U. L. Rev. 1143 (2011).

Note that businesses may not pass the costs of interpreters or other auxiliary aids and services on to the client or consumer. 28 C.F.R. § 36.301(c). This may be a “foreign concept for lawyers, who routinely pass along some of the costs of representation (including filing fees, copying costs, etc.) to their clients.” Long, supra, 47 U.C. Davis L. Rev. at 1802. And although there is an undue burden defense (see Part 2.e below), that is unlikely to apply to Texas attorneys because there are fundsavailable fromthe State Bar orreimburse the cost ofsign-language interpreters.TheSBOT’s Language Access Fund is for limited English proficient clients and clients with disabilities, and is only for legal aid or pro bono attorneys.7 The Communication Access Fund is only for clients with disabilities, but is available to all attorneys.8

Finally, researchers have documented that the Deaf community struggles with higher rates of mental health issues, including depression and anxiety, due to congenital, environmental and educational factors, as well as poorer health care and mental health access.9

d. Retaliation

Itisunlawfultoretaliateagainst,orinterferewithorcoerce,apersonopposingadiscriminatory practice or requesting a modification. 42 U.S.C. § 12203(a) and (b); 28 C.F.R. § 36.206.

e. Defenses

Modifications, or auxiliary aids and services, are not required if they would result in a fundamental alteration or an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii) and (iii); 28 C.F.R. §§ 36.302, 36.303(a)

Fundamental alteration is not specifically defined, but undue burden means significant difficulty or expense. 28 C.F.R. §§ 36.104 and 36.303(a); 28 C.F.R. Part 36 App. B, §§ 36.104 and 36.303. See also Todd v. American Multi Cinema, Inc., 2004 WL 1764686, at *3 4 (S.D. Tex. Aug. 5, 2004) (equipment costing tens of millions of dollars, exceeding defendants’ capital, was undue burden). Factors used in assessing undue burden are listed in 28 C.F.R. § 36.104. Accessibility tax advantages should be considered.10 And as mentioned above (in Part 2.c), it is unlikely that Texas attorneys can claim that sign-language interpreters will be an undue burden

7 For more information, see https://blog.texasbar.com/2014/04/articles/pro bono/language access fund enables pro bono representation of non english speakers/

8 For more information, see https://www.texasbar.com/AM/Template.cfm?Section=Legal_Access_Division&Template=/CM/HTMLDisplay.cfm &ContentID=30045, and https://www.texasbar.com/AM/Template.cfm?Section=Content_Folders&ContentID=49086&Template=/CM/Conte ntDisplay.cfm

9 National Association of the Deaf, Position Statement on Preservation of Mental Health Services for Deaf People in an Integrated Health Care, online at https://www.nad.org/about us/position statements/position statement on preservation of mental health services for deaf people in an integrated health care/.

10 See Tax Incentives for Improving Accessibility, https://www.ada.gov/archive/taxpack.pdf

based on expense, because there are funds available from the State Bar or reimburse the cost of sign language interpreters.

Even if a defense is established, the defendant must still provide alternatives that ensure accessibility and equality to the maximum possible extent. 28 C.F.R. § 36.303(f); 28 C.F.R. Part 36 App. B, § 36.303; Technical Assistance Manual § III 4.3600.

Title III does not require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity if the individual poses a direct threat to the health or safety of others. 42 U.S.C. § 12182(b)(3); 28 C.F.R. § 36.208; Bragdon v. Abbott, 524 U.S. 624, 648 49 (1998).

Direct threat means a significant risk that cannot be eliminated by modification or auxiliary aid. 28 C.F.R. § 36.208(b). Because few, if any, activities in life are risk free, the ADA does not ask whether a risk exists, but whether it is significant. Bragdon, supra, at 649. In determining if there is a direct threat, defendant must make an individual assessment, based on several listed factors. 28 C.F.R. § 36.208(c); Technical Assistance Manual § III-3.8000. Direct threat must also be based on “current medical knowledge or on the best available objective evidence.” Id. A good faith belief does not relieve the defendant from liability. Bragdon, supra, at 649.

f. Remedies

The Title III remedies and procedures are the same as those under §204(a) of the 1964 Civil Rights Act (42 U.S.C. §2000a-3(a). 42 U.S.C. § 12188(a)(1). This includes injunctive relief. 42 U.S.C. §12188(a)(2), including an order to remove architectural barriers, or to provide auxiliary aids or services 28 C.F.R. § 36.501(a) and (b); Betancourt v. Federated Dept. Stores, 732 F. Supp. 2d 693, 701 (W.D. Tex. 2010); Benavides v. Laredo Medical Center, 2009 WL 1755004, at *3 (S.D. Tex. June 18, 2009). A preliminary injunction is also available. 28 C.F.R. §36.501(a).

Money damages are only recoverable in an action brought by the Attorney General, 42 U.S.C. § 12188(b)(2)(B), but not in action brought by a private person Betancourt v. Federated Dept. Stores, 732 F. Supp. 2d 693, 701 (W.D. Tex. 2010); Benavides v. Laredo Medical Center, 2009 WL 1755004, at *3 (S.D. Tex. June 18, 2009); Whitaker v. West Village Ltd. Partnership, 2004 WL 2008502, at *4 (N.D. Tex. Sept. 8, 2004); Technical Assistance Manual § III 8.2000. See also Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) (no damages under 42 U.S.C. §2000a-3(a)). Note, however, that Texas law allows recovery of damages for disability discrimination by private businesses, and also makes covered discrimination a misdemeanor. Tex. Hum. Res. Code § 121.004

Attorney’s fees and costs are recoverable 42 U.S.C. § 12205; 28 C.F.R. § 36.505.

Note, too, that the U.S. Department of Justice has the power to enforce Title III of the ADA, and it has sued law offices for violating their Title III responsibilities. See, for example, the LeHouillier Consent Decree, resulting from the exclusions of an individual with a service animal from the deposition site.

https://www.ada.gov/lehouillier.htm

g. Procedural Issues

Federal courts have jurisdiction under 28 U.S.C. §1331 (federal question) and 28 U.S.C. §1343 (civil rights). State courts also have concurrent jurisdiction. Zatarain v. WDSU Television, Inc., 79 F.3d 1143, 1996 WL 97105, at *3 (5th Cir. Feb. 7, 1996) (unpublished) (ADA Title I).

There is no express statute of limitations for ADA Title III claims, so courts normally apply thestate’stwo yearpersonalinjurystatute. Meriwether v. ABC Training/Safety Council Texas Gulf Coast Chapter, No. 3:15-CV-862-N-BH, 2016 WL 8711726, at *2 (N.D. Tex. Oct. 24, 2016), report and recommendation adopted, No. 3:15 CV 862 N BH, 2016 WL 8711279 (N.D. Tex. Nov. 18, 2016).

Exhaustion of administrative remedies is not required. Kirk v. Renal Associates, P.A., 2007 WL 2048833, at *5 (W.D. Tex. July 16, 2007).

h. Other Resources

For additional information, see the U.S. Department of Justice’s guidance document entitled ADA Update: A Primer for Small Business (DOJ Mar. 16, 2022).12

3. ADA TITLE II OBLIGATIONS OF COURTS AND OTHER GOVERNMENT ENTITIES

a. Coverage

Title II applies to any “public entity,” 42 U.S.C. § 12132, which is defined in 42 U.S.C. § 12131(1) to include any State or local government, as well as any department, agency, special purpose district, or other instrumentality of a State or States or local government.13

The statutory language forbids exclusion from or denial of benefits of the services, programs, or activities of a public entity, or being subjected to discrimination by any such entity. 42 U.S.C. § 12132. Section 504 of the Rehabilitation Act of 1973 applies this same requirement to entities that receive federal financial assistance. 29 U.S.C. § 794(a); Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 749 (2017)

The ADA terms “programs, or activities” are broad enough to reach all of the operations of a public entity, and “services” is likewise broadly defined to mean an act, provision, organization, or apparatus done for the benefit of others or to meet a general demand. Frame v. City of Arlington, 657 F.3d 215, 225 26 (5th Cir. 2011) (en banc) (holding that building and altering public sidewalks are services, programs, or activities of a public entity). Cf. Ivy v. Williams, 781 F.3d 250, 255 (5th Cir. 2015) (drivers ed was not a service, program, or activity of the Texas Education Agency because it had no contractual or agency relationship with drivers-ed providers). See also

Available online at https://www.ada.gov/regs2010/smallbusiness/smallbusprimer2010.htm

The term also includes the National Railroad Passenger Corporation and any commuter authority, but those entities are outside the scope of this paper.

Van Velzor v. City of Burleson, 43 F. Supp. 3d 746, 754 (N.D. Tex. 2014) (collecting cases reaching a “similarly all encompassing concepts of what can constitute a service or benefit under the ADA.”).

“The ADA is a ‘broad mandate’ of ‘comprehensive character’ and ‘sweeping purpose’ intended ‘to eliminate discrimination against disabled individuals, and to integrate them into the economic and social mainstream of American life.’” Frame v. City of Arlington, 657 F.3d 215, 223(5thCir.2011)(enbanc)(quoting PGA Tour, Inc. v. Martin,532U.S.661,675(2001)).“[T]he fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrateambiguity.Itdemonstratesbreadth.” Pennsylvania Dept. of Corrs. v. Yeskey,524U.S. 206, 212 (1998) (internal quotes omitted).

Thus, for example, Title II applies to:

• Cities Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011) (en banc) (sidewalks and curb cuts); Salinas v. City of New Braunfels, 557 F. Supp. 2d 777, 782 (W.D. Tex. 2008) (police and 911 services).

• Counties Patterson v. Kerr County, 2007 WL 2086671, at *7 (W.D. Tex. July 18, 2007) (local jails).

• State agencies Pennsylvania Dept. of Corrs. v. Yeskey, 524 U.S. 206 (1998);14 Manemann v. Texas Dep’t of Criminal Justice, 2014 WL 905876 (S.D. Tex. Mar. 7, 2014).

The governmental activities covered by Title II include:

• Access to the courts and judicial services Tennessee v. Lane, 541 U.S. 509 (2004); Luke v. Texas, 46 F.4th 301, 303 04 (5th Cir. 2022) (“Cameron Luke, who is deaf, was arrested for marijuana possession. Throughout his encounter with the criminal justice system during his arrest, court proceedings, and interactions with probation officers he was denied a sign language interpreter. The question is whether denying a deaf defendant an interpreter during his criminal proceedings violates the Americans with Disabilities Act. The answer is yes.”).

• Prisons and jails U.S. v. Georgia, 546 U.S. 151 (2006); Luke v. Texas, 46 F.4th 301 (5th Cir. 2022); Patterson v. Kerr County, 2007 WL 2086671, at *7 (W.D. Tex. July 18, 2007). See also Armstrong v. Schwarzenegger, 622 F.3d 1058, 1068 (9th Cir. 2010); Borum v. Swisher Cnty., 2015 WL 327508, at *7 (N.D. Tex. Jan. 26, 2015) (“providing food and medical care to prisoners is undoubtedly a program or service for which Defendant was responsible”). Note, too, that the 2010 Title II regulations clarified the architectural requirements that apply to correctional facilities. See 28 C.F.R. §§ 35.151(k) and 35.152.

• Law enforcement services after the officers securing of the scene and ensured that there is no threat to human life Wilson v. City of Southlake, 936 F.3d 326, 331 (5th Cir. 2019)

14 Yeskey impliedly overruled contrary precedent like Callaway v. Smith County, 991 F. Supp. 801 (E.D. Tex. 1998).

(no “exigent circumstance” exception where “[t]here was no potentially life threatening situation or threat to human life.”); Windham v. Harris Cty., 875 F.3d 229, 235 n.4 (5th Cir. 2017) (refusing to extend exception to non-exigent arrest); Hainze v. Richards, 207 F.3d 795 (5th Cir. 2000); Rubin v. De La Cruz, No. 4:21 CV 01148, 2022 WL 4450489 (S.D. Tex. Sept. 22, 2022); Van Velzor v. City of Burleson, 43 F. Supp. 3d 746, 756 58 (N.D. Tex. 2014) (traditional discretion to law enforcement agencies does not trump the ADA’s statutory obligations); Salinas v. City of New Braunfels, 557 F. Supp. 2d 771, 775 76 (W.D. Tex. Dec. 18, 2006).

Title II does not apply to the federal government, so federal courts are not “public entities” subject to Title II. Gulla v. Dennehy, C.A. No. 05 11988 RGS, 2007 WL 923527, at *1 (D. Mass. Mar. 27, 2007); Zingher v. Yacavone, 30 F. Supp. 2d 446, 452 (D. Vt. 1997); Melton v. Freeland, No. 1:96CV516, 1997 WL 382054 (M.D.N.C. Feb. 6, 1997). Rather, the ADA public entity definition encompasses only state and local governments. Sheridan v. Michels, 282 B.R. 79, 92 n.15 (B.A.P. 1st Cir. 2002), vacated on other grounds, In re Sheridan, 362 F.3d 96 (1st Cir. 2004). Additionally, “[f]ederal courts are not subject to the Rehabilitation Act since federal courts are not encompassed in the definition of ‘program or activity’ to which the statute applies.” Sheridan, 282 B.R. at 92 n.15 (citing Melton, 1997 WL 382054, at *1).

Title II protects a “qualified individual with a disability.” 42 U.S.C. § 12132. A person is “qualified” if with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services he or she meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C. § 12131(2); 28 C.F.R. § 35.104; Technical Assistance Manual, supra, II 2.8000; Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1136 (9th Cir. 2001) (deaf participant in lawsuit involving public hearings was a qualified individual with a disability); Knowles v. Horn, 2010 WL 517591, at *3 (N.D. Tex. Feb. 10, 2010) (plaintiff “qualified” in context of community integration case). In some cases the “essential eligibility requirements” are minimal. For example, the only eligibility requirement for obtaining publicinformationmay bea request forit.28C.F.R.Part 35App.A,§35.104;Technical Assistance Manual, supra, II 2.8000. In other situations, a visitor, spectator, family member, or associate ofa programparticipantmay alsobe qualifiedindividuals.Technical Assistance Manual, II 2.8000.

b. General Obligations

Title II of the ADA states that “[s]ubject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 See also 28 C.F.R. § 35.130(a). See also Technical Assistance Manual, supra, II 3.0000.

The statute is written very broadly, and the details are left to the Department of Justice’s enforcing regulations, codified at28C.F.R.Part 35. The TitleIIregulations areentitled to Chevron deference, Ivy v. Williams, 781 F.3d 250, 255 n.6 (5th Cir. 2015), and are controlling unless they are arbitrary, capricious, or plainly contrary to the ADA. Frame v. City of Arlington, 657 F.3d 215,

225 n.29 (5th Cir. 2011) (en banc); Patterson v. Kerr County, 2007 WL 2086671, at *7 n.92 (W.D. Tex. July 18, 2007).

Title II’s general definition includes three different types of discrimination: (a) exclusion; (b) denial of benefits; or (c) other kinds of discrimination. Title II does not require proof of a total exclusion in order to prevail. Lee v. Valdez, 2009 WL 1406244, at *12 (N.D. Tex. May 20, 2009). See also Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000) (setting out alternative claims). Denial of meaningful access is as actionable as outright exclusion. See Baughman v. Walt Disney World Co., 685 F.3d 1131, 1134 35 (9th Cir. 2012).

In addition to the general antidiscrimination provisions, the Title II regulations specify a number of prohibited forms of discrimination. Van Velzor v. City of Burleson, 43 F. Supp. 3d 746, 751 (N.D. Tex. 2014).

Note, too, that the plain language of Title II also prohibits discrimination more generally, whether or not it is tied directly to the services, programs, or activities of the public entity. See, e.g., Bircoll v. Miami Dade County, 480 F.3d 1072, 1084 85 (11th Cir. 2007). See also Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37, 44 45 (2d Cir. 1997).

The substantive standards and remedies of Title II are very similar to those applicable to Sec. 504 of the Rehabilitation Act of 1973, but unlike § 504, Title II applies whether or not the public entity receives any federal funding. Pace v. Bogalusa City School Bd., 403 F.3d 272, 276 n.4 (5th Cir. 2005) (en banc).

c. Policy Modifications

Public entities must make reasonable modifications of policies, practices, and procedures if necessary to avoid discrimination. 28 C.F.R. § 35.130(b)(7); Technical Assistance Manual, supra, II-3.6000; Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 749 (2017); Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 213 (1998); Bennett Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 454 n.11 (5th Cir. 2005); Borum v. Swisher Cnty., 2015 WL 327508, at *4 (N.D. Tex. Jan. 26, 2015); Pena v. Bexar County, Texas, 726 F. Supp. 2d 675, 683 (W.D. Tex. 2010); Coker v. Dallas County Jail, 2009 WL 1953038, at *17 (N.D. Tex. Feb. 25, 2009); Patterson v. Kerr County, 2007 WL 2086671,at*7(W.D.Tex.July18,2007); Dees v. Austin Travis County Mental Health and Mental Retardation, 860 F. Supp. 1186, 1190 (W.D. Tex. 1994). See also Tennessee v. Lane, 541 U.S. 509, 536 (2004) (J. Ginsburg, concurring). The same accommodation obligation exists for public entities covered by Section 504. Fry, supra, 137 S. Ct. at 749 50.

Title II’s modification requirement is equivalent the ADA’s accommodation obligation used in other contexts. See Tennessee v. Lane, 541 U.S. 509, 531 32 (2004); Bennett Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005) (describing Title II’s modification requirement as an accommodation obligation); Reickenbacker v. Foster, 274 F.3d 974, 983 (5th Cir. 2001) (similar); Patterson v. Kerr County, 2007 WL 2086671, at *7 (W.D. Tex. July 18, 2007); McCoy v. Texas Dept. of Criminal Justice, 2006 WL 2331055, at *7 (S.D. Tex. Aug. 9, 2006). Many courts therefore track the reasonable accommodation analysis used in employment cases. See, e.g., Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003); Vinson v. Thomas, 288

F.3d 1145, 1154 (9th Cir. 2002) (§ 504 case adopting the case by case nature of the accommodation analysis, as well as the duty to engage in an interactive process).

The plaintiff normally has the burden of requesting an accommodation unless the disability and need for accommodation are known or obvious. Greer v. Richardson Indep. Sch. Dist., 472 F. App’x 287, 296 (5th Cir. 2012); D.B. v. CorrectHealth E. Baton Rouge, LLC, No. CV 19 620 JWD EWD, 2020 WL 4507320, at *19 (M.D. La. Aug. 5, 2020) (sheriff had sufficient knowledge of need by detainee with autism for special housing accommodations); Patterson v. Kerr County, 2007 WL 2086671, at *8 (W.D. Tex. July 18, 2007); McCoy v. Texas Dept. of Criminal Justice, 2006 WL 2331055, at *7 8 (S.D. Tex. Aug. 9, 2006) (finding sufficient evidence that defendant knew of need, and also that sufficient request was made).

Whether an accommodation is reasonable requires a balancing of all the relevant facts, and as such, the reasonableness of an accommodation is generally a question of fact inappropriate for resolution on summary judgment. McCoy v. Texas Dept. of Criminal Justice, 2006 WL 2331055, at *9 (S.D. Tex. Aug. 9, 2006). See also Coker v. Dallas County Jail, 2009 WL 1953038, at *19 (N.D. Tex. Feb. 25, 2009) (fact issue whether failure to return plaintiff’s wheelchair excluded him from participating in, or denied him the benefits of, services, programs or activities at the jail); Patterson v. Kerr County, 2007 WL 2086671, at *8 (W.D. Tex. July 18, 2007) (fact issues whether assigning inmates with epilepsy to lower bunks was a reasonable accommodation, and whether this was necessary to avoid depriving them of safe sleeping facilities); Van Velzor v. City of Burleson, 43 F. Supp. 3d 746, 760 61 (N.D. Tex. 2014) (“Requiring disability related training is generally considered to be reasonable under the ADA.”).

The cases cited below in Part 3.k describe various accommodations that were requested or offered, including continuances, conducting portions of trial without husband present or with him seated outside of wife’s line of sight, shortened trial sessions, breaks between trial days, sign languageinterpreters,proactivenoticeoftheaccommodationprocess,andalternativestoin person attendance. There is support for various kinds of accommodations for individuals with mentalhealth impairment in the Job Accommodation Network’s Accommodation and Compliance: Mental Health Conditions, and the resources linked there 15

Liability for the failure to modify policies does not depend on intent. Bennett Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 455 (5th Cir. 2005) (“[T]he existence of a violation depends on whether … the demanded accommodation is in fact reasonable and therefore required. If the accommodation is required the defendants are liable simply by denying it.”); Pena v. Bexar County, Texas, 726 F. Supp. 2d 675, 685 (W.D. Tex. 2010) (“When a public entity defendant fails to meet its affirmative obligation to make reasonable accommodations, the cause of that failure is irrelevant.”); Coker v. Dallas County Jail, 2009 WL 1953038, at *17 (N.D. Tex. Feb. 25, 2009) (“Because public entities must make modifications that are necessary to avoid discrimination on the basis of disability, liability does not depend on evidence of purposeful discrimination. A plaintiff simply must show that ‘but for’ his disability, he would not have been deprived of the services or benefits he desired.”); Patterson v. Kerr County, 2007 WL 2086671, at *7 (W.D. Tex. July 18, 2007). See also Adelman v. Dunmire, No. CIV.A. 95 4039, 1996 WL 107853, at *3 (E.D. Pa. Mar. 12, 1996) (“Plaintiff, however, is not required to make a showing of discriminatory intent

to sustain a claim for violation of Title II of the ADA.”); Engle v. Gallas, No. CIV. A. 93 3324, 1994 WL 263347, at *3 (E.D. Pa. June 10, 1994) (“[I]t seems that although [municipal court administration] intends to accommodate people with disabilities, it just has not put a program into place to assure that such intentions are carried out in fact. Good intentions, in this regard, are of little help to one who must endure the hardship of a disability.”).

Note, however, that Title II does not require a public entity to provide to individuals with disabilities personal devices (e.g., wheelchairs; individually prescribed devices like prescription eyeglasses or hearing aids, readers for personal use or study, or services of a personal nature including assistance in eating, toileting, or dressing). The exact meaning of “personal devices and services” is somewhat unclear. AP ex rel. Peterson v. Anoka Hennepin Independent School Dist. No. 11,538F.Supp.2d1125,1152(D.Minn.2008)(holdingthatthetermdoesnotincluderequest that school staff be trained and authorized to administer glucagon injection in the event student had a diabetes emergency, and thus school may have obligation to provide that). Also, the obligation to modify policies may “trump” this limitation in the jail or prison context, because inmates may have no way to bring in their own personal devices. Purcell v. Pennsylvania Dept. of Corrections, 1998 WL 10236, at *8 9 (E.D. Pa. Jan. 9, 1998).

d. Service Animals

The Title II regulations specify that policies must be modified to allow service animals. 28 C.F.R. § 35.136(a) and (g). Among other things, the law clarifies that:

• Only dogs can be service animals, 28 C.F.R. § 35.104, although the ADA does provide protections for individuals who use miniature horses. 28 C.F.R. § 35.136(i).

• There are no breed restrictions. 28 C.F.R. Part 35 App. A, § 35.104 (“Service Animal”).

• A service animal is one that has been individually trained to do work or perform tasks for the benefit of an individual with a disability. 28 C.F.R. § 35.104.

• No special certification or documentation is required. 28 C.F.R. § 35.136(f).

•

A public entity may only ask two questions of an individual with a service animal: (1) whether the animal is required because of a disability, and (2) what work or task the animal has been trained to perform. 28 C.F.R. § 35.136(f). Even these inquiries are impermissible “when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability.” Id.

A public entity may ask an individual with a disability to remove a service animal from the premises only if (1) the animal is out of control and the animal’s handler does not take effective action to control it; or (2) the animal is not housebroken. 28 C.F.R. § 35.136(b). Even if an animals is properly excluded, the public entity must still give the individual with a disability the opportunity to participate in the service, program, or activity without having the service animal on the premises. 28 C.F.R. § 35.136(c).

See also Revised ADA Requirements: Service Animals (DOJ Feb. 24, 20202),16 and Frequently Asked Questions about Service Animals and the ADA (DOJ July 20, 2015).17

e. Effective Communications

A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others. 28 C.F.R. § 35.160(a); Technical Assistance Manual, supra, II 7.1000; Salinas v. City of New Braunfels, 557 F. Supp. 2d 777, 782 and n.19 (W.D. Tex. 2008).

The “effective communication” obligation includes a requirement to furnish appropriate auxiliary aids and services if necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity. 28 C.F.R. § 35.160(b)(1); Salinas v. City of New Braunfels, 557 F. Supp. 2d 777, 782 and n.20 (W.D. Tex. 2008). See also Cuevas v. State, No. CV2017555SDWLDW, 2021 WL 2024999, at *4 (D.N.J. May 20, 2021) (requiring reliance on handwritten notes instead of providing timely sign-language interpreters may violate the ADA). Note that the proper inquiry is not whether the lack of auxiliary aids and services effectively excluded the individual, but instead whether they are necessary to give an equal opportunity to benefit from the program, service, or activity. See Argenyi v. Creighton Univ., 703 F.3d 441, 451 (8th Cir. 2013); Liese v. Indian R. Cnty. Hosp. Dist., 701 F.3d 334, 343 (11th Cir. 2012); Saunders v. Mayo Clinic, 2015 WL 774132, at *5 (D. Minn. Feb. 24, 2015).

Auxiliary aids and services include qualified interpreters, notetakers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDDs), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments. 28 C.F.R. § 35.104. See also Salinas v. City of New Braunfels, 557 F. Supp. 2d 777, 782 and n.21 (W.D. Tex. 2008) (holding that the term includes sign language interpreters).

With regard to sign language interpreters, see Technical Assistance Manual, supra, II 7.1200, and note that:

•

A qualified interpreter means one who is able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary. 28 C.F.R. § 35.104.

•

Regardless of skill level, in certain circumstances a family member or friend may not be qualified to render the necessary interpretation because of factors such as emotional or personal involvement, or considerations of confidentiality, that may adversely affect the ability to interpret “effectively, accurately, and impartially.” 28 C.F.R. Part 35 App. A, § 35.104.

• The definition of “qualified interpreter” in this rule does not invalidate or limit standards for interpreting services of any State or local law that are equal to or more stringent than those imposed by this definition. For instance, the definition would not supersede any requirement of State law for use of a certified interpreter in court proceedings. 28 C.F.R. Part 35 App. A, § 35.104.18

• Although in some circumstances written notes may be sufficient to permit effective communication, in many circumstances they may not be. For example, a qualified interpreter may be necessary when the information being communicated is complex, or is exchanged for a lengthy period of time. Factors to consider include the context in which the communication is taking place, the number of people involved, and the importance of the communication. 28 C.F.R. Part 35 App. A, § 35.160.

See also Luke v. Texas, 46 F.4th 301, 303 04 (5th Cir. 2022) (“Cameron Luke, who is deaf, was arrested for marijuana possession. Throughout his encounter with the criminal justice system during his arrest, court proceedings, and interactions with probation officers he was denied a sign language interpreter. The question is whether denying a deaf defendant an interpreter during his criminal proceedings violates the Americans with Disabilities Act. The answer is yes.”).

Other kinds ofauxiliaryaids and services include qualified readers,19 video remote interpreting (VRI),20 taped texts, audio recordings, Brailled materials, large print materials, or other effective methods of making visually delivered materials available to individuals with visual impairments. Auxiliary aids and services may also include reading devices or readers, or screen reader software These aids andservices should be provided whennecessary forequal participationand opportunity to benefit from any governmental service, program, or activity. Such aids may be required, for example, for reviewing public documents,examiningdemonstrative evidence, and filling out voter registration forms or forms needed to receive public benefits. 28 C.F.R. Part 35 App. A, § 35.160.

In determining what type of auxiliary aid and service is necessary, a public entity shall give “primary consideration” to the requests of the individual with disabilities. 28 C.F.R. § 35.160(b)((2); Technical Assistance Manual, supra, II 7.1100. What is “effective” is a fact intensive inquiry. Salinas v. City of New Braunfels, 557 F. Supp. 2d 777, 783 (W.D. Tex. 2008). Quality bilateral communication is often necessary. Id., 557 F. Supp. 2d at 785. See also Duffy v. Riveland, 98 F.3d 447, 456 (9th Cir. 1996) (fact question existed as to the reasonableness of the accommodation because the sign language interpreter who was offered for a prison disciplinary proceeding was not a professional interpreter and had no formal training, and the plaintiff’s experiences with her were problematic).

18

For example, Texas law expressly requires interpreters for parties, witnesses and jurors in civil trial or depositions, Tex. Civ. Prac. & Rem. Code § 21.002(a); for a child, parent/guardian, or witness in juvenile justice proceedings, Tex. Fam. Code § 51.17(e); for parents or guardians of children in certain residential care facilities, Tex. Gov. Code § 531.164(d)(3);andfordefendantsorwitnessesincriminalor competencyproceedings,Tex. CodeCrim.Proc.§38.31. State law also specifies the certification level for interpreters used in criminal and juvenile proceedings. Tex. Fam. Code § 51.17(e); Tex. Code Crim. Proc. § 38.31.

19 “Qualified interpreters” are defined in 28 C.F.R. § 35.104

20 VRI is defined in 28 C.F.R. § 35.104. Note, too, that there are performance and training standards for VRI. 28 C.F.R. § 35.160(d).

With regard to the legal right to accommodations for deaf participants in state and local courts, see also Douglas M. Pravda, Understanding the Rights of Deaf and Hard of Hearing Individuals to Meaningful Participation in Court Proceedings, 45 Val. U. L. Rev. 927, 929 32 (2011).

f. Architectural Barriers

The prohibition against discrimination requires public entities “to take reasonable measures to remove architectural and other barriers to accessibility.” Manemann v. Texas Dep’t of Criminal Justice, 2014 WL 905876, at *6 (S.D. Tex. Mar. 7, 2014), citing Tenn. v. Lane, 541 U.S. 509, 531 (2004). The accessibility rules apply to public “facilities,” meaning all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located. 28 C.F.R. § 35.104.

Under the Title II regulations, “new construction” and “alterations” occurring after the passage of the ADA must be made “readily accessible” to individuals with disabilities. This is because buildinginaccessibilityatthetimeofconstructionoftenresultsinno,orverylow,additionalcosts. Frame v. City of Arlington, 657 F.3d 215, 231 32 (5th Cir. 2011) (en banc). The standard for pre ADA construction is somewhat different, however. Id. at 232, citing Tennessee v. Lane, 541 U.S. 509 (2004).

g. Retaliation

The ADA outlaws retaliating against one who has opposed unlawful practice or made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter. 42 U.S.C. § 12203(a); 28 C.F.R. § 35.134(a); Technical Assistance Manual, supra, II 3.11000.

Itisalsounlawfultocoerce,intimidate,threaten,orinterferewithanyindividualintheexercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the ADA. 42 U.S.C. § 12203(b); 28 C.F.R. § 35.134(b); Technical Assistance Manual, supra, II 3.11000.

The elements of a retaliation claim are: plaintiff engaged in statutorily protected expression; suffered an adverse action; and the adverse action was causally related to the protected activity. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1180 (11th Cir. 2003). Not every unkind act is sufficiently adverse; the inquiry outside the employment context is whether a reasonable person in his position would view the action as adverse. Id. at 1181. Compare Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (holding that in employment context plaintiff must show that reasonable employee would have found the challenged action “well might have dissuaded a reasonable worker from making or supporting” the protected conduct) (internal quotes omitted).

h. Defenses

The public entity can defend by showing that the modification would constitute a fundamental alteration, or undue hardship, 28 C.F.R. § 35.130(b)(7); Tennessee v. Lane, 541 U.S. 509, 532 (2004), but this is an affirmative defense on which the defendant has the burden of proof. Reickenbacker v. Foster, 274 F.3d 974, 983 (5th Cir. 2001); Greer v. Richardson Indep. Sch. Dist., 472 F. App’x 287, 292 (5th Cir. 2012); Patterson v. Kerr County, 2007 WL 2086671, at *7 (W.D. Tex. July 18, 2007); Dees v. Austin Travis County Mental Health and Mental Retardation, 860 F. Supp. 1186 (W.D. Tex. 1994) (finding insufficient evidence to establish such a defense). See also Pena v. Bexar County, Texas, 726 F. Supp. 2d 675, 686 (W.D. Tex. 2010); Although budgetary constraints are relevant, they alone are insufficient to showthat an accommodationis unreasonable or would constitute a fundamental alteration. Patterson v. Kerr County, 2007 WL 2086671, at *8, n.105 (W.D. Tex. July 18, 2007).

Also, a person is not “qualified” if he or she poses a “direct threat” to others that cannot be eliminated by reasonable modifications to the public entity’s policies, practices, or procedures. 28 C.F.R. § 35.139. A “direct threat” is a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services. 28 C.F.R. § 35.104. Assessment of direct threat may not be based on generalizations or stereotypes about the effects of a particular disability. Instead, the public entity must make an individualized assessment, based on reasonable judgment that relies on current medical evidence or on the best available objective evidence, to determine: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk. 28 C.F.R. § 35.139(b).

Note that in contrast the EEOC regulations in the employment context, the Title II regulations do not include “danger to self” in the definition of direct threat, as the Court noted in Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 82 (2002). Some courts have held that this difference means that “danger to self” is not a defense. Compare Celano v. Marriott Intern., Inc., 2008 WL 239306, at *17 18 (N.D. Cal. Jan. 28, 2008) (decided under Title III).

A public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities. However, the public entity must ensure that its safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities. 28 C.F.R. § 35.130(h).

Note that the Rooker Feldman doctrine prevents an ADA claim in federal court that essentially seeks review of a state court decision brought by state court loser. Salahuddin v. Riverdale Ave. Properties, LLC, No. 18 CV 6730 (MKB), 2020 WL 249015, at *2 3 (E.D.N.Y. Jan. 16, 2020) (appeal pending). But the doctrine does not apply to parallel state and federal litigation, and has no application to lawsuits against administrative officials. Marks v. Tennessee, 554 F.3d 619 (6th Cir. 2009) (Rooker Feldman not applicable to ADA lawsuit against state Administrative Office of the Courts for mishandling accommodation requests by attorney with disabilities).

Notwithstanding the above, it is not a defense that a “criminal case turned out okay.” Such a “no harm no foul theory is inconsistent with the ADA. And for good reason: Lack of meaningful access is itself the harm under Title II, regardless of whether any additional injury follows.” Luke v. Texas, 46 F.4th 301, 306 (5th Cir. 2022)

i. Procedural Issues

Generally, Title II does not require filing a complaint with a federal agency, or receipt of any permission before filing suit. See, e.g., 28 C.F.R. § 35.172(d); 28 C.F.R. Part 35 App. A, Subpart F (citing legislative history); Zimmerman v. Oregon Dept. of Justice, 170 F.3d 1169, 1177 78 (9th Cir. 1999); Bledsoe v. Palm Beach County Soil and Water Conservation Dist., 133 F.3d 816, 824 (11th Cir. 1998); Mitchell v. Massachusetts Dept. of Correction, 190 F. Supp. 2d 204, 209 10 and n.4 (D. Mass. 2002) (collecting authorities). See also Camenisch v. University of Texas, 616 F.2d 127, 134 35 (5th Cir. 1980), vacated on other grounds, 451 U.S. 390 (1981) (no exhaustion required in claims under § 504). Bur other federal statutes may require exhaustion in certain types of Title II cases. For example, the Prison Litigation Reform Act requires administrative exhaustion of certain claims against prisons. See, e.g., O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1061 62 (9th Cir. 2007); Miller v. Wayback House, 2006 WL 297769, at *5 (N.D. Tex. Feb. 1, 2006).

There is a private right of action to sue for Title II violations. U.S. v. Georgia, 546 U.S. 151, 154 (2006); Barnes v. Gorman, 536 U.S. 181, 184 85 (2002); Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (en banc). Similarly, there Title II regulations are also privately enforceable. Frame, supra, 657 F.3d at 224.

TitleIIhas no expressstatute oflimitations, socourts generallyapply the most analogousstate law limitations period, which in Texas is the two year statute of limitations for personal injury claims. Frame v. City of Arlington, 657 F.3d 215, 237 (5th Cir. 2011) (en banc).

Note that the U.S. Department of Justice has filed suit against Title II entities, including courts, for violating their ADA obligations. See, e.g., United States v. The Unified Judicial System of Pennsylvania, No. 2:22 cv 00709 MSG (E.D. Pa.) (challenging probation requirement that excludes people receiving medication assisted treatment for opioid use disorder)

j. Immunity

Counties, cities, and other local government entities do not have immunity from ADA claims. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 369 (2001); Luke v. Texas, 46 F.4th 301, 305 (5th Cir. 2022).

In claims against a state agency or other “arm of the state,” the state has no immunity from claims in cases implicating “fundamental rights,” e.g., the right of access to the courts. Tennessee v. Lane, 541 U.S. 509 (2004). The state also has no immunity from Title II claims based conduct that is also unconstitutional. U.S. v. Georgia, 546 U.S. 151, 158 59 (2006). But the state may have immunity from some other types of Title II claims.

Courts are generally considered arms of the state entitled to 11th Amendment immunity. See, e.g., Malipurathu v. Jones, No. CIV 11 646 W, 2012 WL 3835401, at *1 (W.D. Okla. Sept. 4, 2012). But even if the state is immune, state officials may still be sued for prospective relief under the Ex parte Young theory. See, e.g., Guttman v. Khalsa, 669 F.3d 1101, 1126 27 (10th Cir. 2012); McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 14 (5th Cir. 2004); Espinoza v. Texas Dept. of Public Safety, 2007 WL 1393751, at *6 (N.D. Tex. May 11, 2007); Simmang v. Texas Bd. of Law Examiners, 346 F. Supp. 2d 874, 885 89 (W.D. Tex. 2004). Also, the state also has no immunity from claims under § 504. Pace v. Bogalusa City School Bd., 403 F.3d 272 (5th Cir. 2005) (en banc).

Note that judges and prosecutors are normally entitled to absolute immunity from suit for money damages Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001); Malipurathu v. Jones, No. CIV 11 646 W, 2012 WL 3835401, at *1 (W.D. Okla. Sept. 4, 2012). However, absolute judicial immunity does not apply to non judicial acts, i.e. the administrative, legislative, and executive functions that judges may on occasion be assigned to perform. Duvall, supra, 260 F.3d at 1133 (holding that judge’s denial of videotext display was a judicial act covered by immunity). See also Berrian v. Unified Ct. Sys., No. 18-CV-7787 (CM), 2019 WL 2866059, at *3 (S.D.N.Y. July 3, 2019). But the court administrator or ADA coordinator may not have such immunity. Duvall, supra, at 1133 35

k. Other Practical Considerations

Lawyers may be required to seek reasonable modifications from the court in order to protect their clients’ rights, and to effectively represent them. Various practical lessons appear from a review of the relevant case law. They include the need to:

1)Documenttheindividual’sdisability,withevidenceshowingthatatthetimeoftherequested accommodation, he or she had a disability as defined by the ADA, i.e., a physical or mental impairment that substantially limits at least one major life activity.21 See, e.g., Foster v. Foster, No. 1141 21 2, 2022 WL 2202988, at *14 (Va. Ct. App. June 21, 2022) (“trial court had doubts about the extent of wife’s claimed physical, mental, and emotional issues”); In re Marriage of Maynard, No. H044039, 2021 WL 6013730, at *68 (Cal. Ct. App. Dec. 20, 2021) (unpublished) (party failed to submit his own declaration or any information from a medical professional familiar with his condition at the time of the accommodation request, and instead only offered dated medical reports); Steele v. Steele, No. 351272, 2021 WL 137770, at *17 (Mich. Ct. App. Jan. 14, 2021) (party refused to provide medical records, supporting inference that she was exaggerating her PTSD). See also Matter of Marriage of McCann, 4 Wash. App. 2d 896, 909, 424 P.3d 234, 242 (2018) (decided under state law adopting ADA’s definition of disability, and finding insufficient evidence of PTSD).

2) Document the request for accommodation or modification. Iceberg v. Washington Ct. of Appeals Div. One,No.C21 493RSM, 2021 WL1536169,at *4(W.D. Wash. Apr.19,2021) (party never actually requested an accommodation, and instead just spoke of requests he might make in the future). Giving substantial advance notice of the need may help avoid a dispute about whether the accommodation was possible. See Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1136 37 (9th Cir.

The ADA’s definition of an “actual” disability is in the statute at 42 U.S.C. § 12102

2001) (although request for videotext device wasn’t made until the eve of trial, there was sufficient evidence that it could have been provided, and the ADA imposes on a public entity an obligation to investigate). It may also help to use the Court’s own form if there is one.22

3) Create a clear record of the need for modifications, and the impact the lack of accommodations had, or will have. See, e.g., Linton v. State, 275 S.W.3d 493 (Tex. Crim. App. 2009) (record showed that interpretive services provided for deaf DWI defendant were sufficient to ensure due process); Orr v. McGinty, No. 117CV1280GLSTWD, 2022 WL 3444957 (N.D.N.Y. Aug. 17, 2022) (litigant did not show how being denied audio recordings, as opposed to written transcripts, impinged on her meaningful access to the proceedings, or were necessary to her meaningful participation).

In Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1137 38 (9th Cir. 2001), the deaf individual presented sufficient evidence, including that he tried the court’s assistive audio system before trial but it did not work for him. The record also reflected that assignment to the courtroom with better acoustics, or allowing him to move around the courtroom, still did not allow him to participate equally. And the judge’s observation that the individual could communicate effectively when asked a direct question was “not inconsistent with Duvall’s testimony that although he is able to communicate effectively in one on one conversation with the aid of visual cues and lipreading, he has much more difficulty following a conversation in which he is not a participant because he is unable to focus on a single speaker or to control the pace of the conversation.”

See also Marks v. Tennessee, 562 F. App’x 341, 345 (6th Cir. 2014) (attorney with disabilities was granted multiple accommodations, and he effectively litigated the case all the way through a substantially successful appeal); Memmer v. Marin Cnty. Cts., 169 F.3d 630, 633 (9th Cir. 1999) (“Memmer sought assistance with activities such as examining trial exhibits and reading documents. None of the pre trial hearings involved activities with which Memmer needed assistance. Because Memmer was not disadvantaged in any way by her disability, it logically follows that no accommodations during the pre-trial stage were required.”). And compare Duffy v. Riveland, 98 F.3d 447, 456 (9th Cir. 1996) (fact question existed as to accommodation’s reasonableness because the sign language interpreter who was offered for prison disciplinary proceeding was not a professional interpreter and had no formal training), with Memmer, supra, 169 F.3d at 634 (court appointed reader for blind litigant did not need special skills to read documents).

4) Ensure that the record reflects that requested accommodations that were denied. Foster v. Foster, No. 1141 21 2, 2022 WL 2202988, at *14 (Va. Ct. App. June 21, 2022) (“That the trial court clearly took steps to accommodate wife’s claimed disability is underscored by the fact that neither her counsel at trial nor her counsel on appeal points to any request for a reasonable accommodation during trial that wife was denied.”); In re Marriage of Maynard, No. H044039, 2021 WL 6013730, at *70 (Cal. Ct. App. Dec. 20, 2021) (unpublished) (no record evidence that after first providing reporter’s transcripts and allowing recording, the court later denied those things and it often took weeks to get most transcripts if they were even provided); Gallagher v.

For example, Travis County criminal courts have a form for requesting auxiliary aids and services for people with communication disabilities. See https://www.traviscountytx.gov/images/courts/Docs/ADA_AccomodationsApplication_Criminal.pdf

Penobscot Cmty. Healthcare, 209 A.3d 106, 109 (Maine 2019) (continuances were the only accommodations requested, and those were granted).

Conversely, a record reflecting that the court reasonably attempted accommodation is a good defense to a failure to accommodate claim or argument. Foster, supra, 2022 WL 2202988, at *14 (court granted numerous continuances,conductedportions ofthe trial without the husband present, or with him seated in a location where the individual could not see him, or where the line of sight was blocked by a courtroom deputy); Maynard, supra, 2021 WL 6013730, at *68 70 (although formal request for accommodation was denied, court in fact granted the requested continuance; court also accommodated by providing shortened trial sessions with more than one week between trial days); Wright v. Nuvola, LLC, No. A18 0298, 2019 WL 3890202, at *7 (Minn. Ct. App. Aug. 19, 2019)(unpublished)(courtgrantedcontinuances andextensions) See also Marks v. Tennessee, 562 F. App’x 341, 345 (6th Cir. 2014) (attorney with disabilities was granted multiple continuances and the court limited the merits hearings to three hours, demonstrating that he was substantially accommodated); Larson v. Iboshi, 441 F. App’x 511, 514 (9th Cir. 2011) (although official refused to waive the worker’s compensation hearing, he offered to allow participation remotely, and there was no showing that this would be unreasonable).

5) Preserve for appeal the failure to accommodate. See, e.g., Foster v. Foster, No. 1141 21 2, 2022 WL 2202988, at *13 14 (Va. Ct. App. June 21, 2022) (issue not preserved and trial court committed no plain error)

6) Review online guides for the courts on the obligation to accommodate individuals with disabilities, e.g., Ensuring Equal Access for People with Disabilities: A Guide for Washington Courts (Washington State Access to Justice Board Impediments Committee Aug. 2006);23 Ensuring People with Disabilities Full and Equal Access to the Courts; A Guide for Judges and Court Personnel (New York State Unified Court System);24 Access to the Courts: A Resource GuidetoProvidingReasonableAccommodationsforPeoplewithDisabilitiesforJudicialOfficers, Probation and Court Staff (Colorado Judicial Department June 18, 2004);25 ADA Accessibility (Maine Judicial Branch 2020);26 Best Practices for Courts in Zoom Hearings Involving Self Represented Litigants, Appendix A: Accommodations for Persons with Disabilities (Texas Access to Justice Commission).27 Also review guidance from the U.S. Department of Justice on Title II obligations, e.g., Examples and Resources to Support Criminal Justice Entities in Compliance with Title II of the Americans with Disabilities Act (Jan. 2017).28

Available online at https://www.courts.wa.gov/content/publicUpload/ADA%20Access%20and%20Accommodation%20Program/WAco urtaccess.pdf

Available online at https://ww2.nycourts.gov/sites/default/files/document/files/2018 11/17_ADA Judge_Training.pdf.

Available online at http://www.thearc.org/wp content/uploads/forchapters/ADAresourceguide.pdf

Available online at https://www.courts.maine.gov/ada/index.html.

Available online at https://www.txcourts.gov/media/1449639/1 best practices for courts in zoom hearingsplusaccessibilitypluslanguage access final.pdf.

Available online at https://www.ada.gov/cjta.html

Criminal Defense Lawyers Project

Mental Health

October 27, 2022 Beach Resort at South Padre Island South Padre Island, TX

Topic:

Client Communication in the Digital Age

Speaker: H. Alex Fuller

The Law Office of H. Alex Fuller, PLLC 2150 S. Central Expressway, Ste. 200 McKinney, TX 75070 972.905.0572 phone 214.556.6312 fax afuller@afullerlaw.com email https://www.afullerlaw.com/ website

Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Introduction

We are professionals, and our profession is communicating. We went to school and trained in how to present our ideas clearly and persuasively. So, as one of my old bosses loved to say, “We are the communicators, so any miscommunication with the client is your fault!” That always seemed suspect to me, he was right that the person responsible for communications isn’t the client, it’s us:

“A lawyer should maintain communication with a client concerning the representation.” Tex. Rules Disciplinary P. Preamble § 3.

To avoid miscommunications, we must remember at all times who our audience is, what we have to communicate, when to do it, and how to effectively get our point across. The keys to successful client communication are (1) communicating with the right person, (2) building rapport with the client, (3) prompt and clear communication of important information, and (4) remembering why we are communicating in the first place.

Who am I communicating with?

First, the client. You must communicate with the client! “A lawyer shall keep a client reasonably informed about the status of a matter

and promptly comply with reasonable requests for information.” Tex. Rules Disciplinary P. R. 1.03(a) (emphasis added).

As always in the legal field, the word “reasonable” does a lot of heavy lifting. Obviously, you should update a client as soon as possible about major events in their cases, such as plea offers or new discovery or Brady notices that change your litigation strategy or that could change their objectives.

For most cases when not much is happening for weeks or months at a time, a good rule of thumb for most clients is to update them about their case monthly. For many clients, that is easy – we see them in docket and can give them an update then. But if you’re retained soon after an arrest, or if your courts don’t require the clients to appear at every setting, many clients will get antsy if they don’t hear from you every month. For them, a monthly email can help calm their nerves. Scheduling those emails also lets you follow up to make sure they are pursuing their mitigation strategies, not smoking the devil’s lettuce, or otherwise complying with their bond conditions. I like setting aside the last Friday afternoon of the month for client updates.

Of course, there are always those clients who are incredibly,

unbelievably anxious and need a lot of hand holding. For these clients, setting expectations early and then maintaining those expectations are key to a good relationship. Your engagement agreement can and should tell them how and how often they can contact you.

Second, the prosecutor. You must communicate with the prosecutor! You can’t keep your client fully informed about his case unless you have the latest discovery, Brady disclosures, and CW contact notes from the State. And, if the client chooses to take a plea, failing to inform the State is ineffective assistance of counsel see “Plea Bargains”, below.

Third, non-clients! Well, if you want to stay in business, that is. Unless you’re the rare, lucky lawyer whose business is all word-of-mouth, you will be constantly communicating to the public in the form of advertising. And you have some responsibilities here, too. Section IIV of the Disciplinary Rules governs communications about your services, advertisements, and solicitations.

You are prohibited from making “false or misleading

1 https://www.texasbar.com/Content/NavigationMenu/ForLawyers/GrievanceandEthics/AdvertisingReview/default.htm

communication[s] about the qualifications or services of a lawyer or law firm. Information about legal services must be truthful and nondeceptive.” Tex. Rules Disciplinary P. R. 7.01(a). Note that your communications and advertisements may be truthful but still misleading if they create unjustified expectations. For example, if you tell a prospective client that you win 75% of your cases, but don’t tell them you’ve only tried four cases in four years because those were the only ones with facts you could win, you may be misleading them.

The Disciplinary Rules apply to all communications with prospective clients, including advertising. The advertising rules are complex, too much so to go into here other than to note that the best way to avoid grievances and disciplinary action related to advertisements is to presubmit your advertisements to the State BarAdvertising Review Committee.1 The review costs $100 per advertisement, but a finding that your ad is in compliance with the Rules is binding in a later disciplinary proceeding.

How do I communicate with them?

“How” we communicate with clients includes both the mechanical processes we use to communicate and the human interaction between us. The mechanical bit is the easy part.

The means and methods of communicating

Mechanically, the best method I have found for dealing with clients is staff. Good staff provide an important buffer between the attorney and frequent-caller clients. But staff aren’t always available or affordable. Technology can help cut down on unnecessary client interaction and improve the quality of the necessary communications.

In my experience, clients overwhelmingly prefer texting for routine communications, and telephone calls when they need immediate reassurance. The problem with that from our end is that an attorney who answers every text and every call from needy clients will quickly become overwhelmed, burned out, and unable to perform actual legal work.

One way to satisfy the clients’ urge to text is to use a desktop-based texting system. I have used Google Voice. Google Voice is tied to my Google business account. It serves as my main office number that I can

redirect to any other phone, and clients can text it! The texts are sent to my email inbox, and my responses are sent to the clients as texts.

More recently I have been using a client portal as part of my case management software. I require clients to use the portal for routine communication. They would prefer texting, but I have had surprisingly little push-back on the portal. The portal allows me to keep all of our communications and document exchanges in one place. If a client needs a phone conference, I ask them to request one through the portal. When clients call, text, or email instead of using the portal, a gentle reminder usually gets them back on track.

Finally, for difficult clients never underestimate the power of a CYAletter. If a client insists on pursuing a foolhardy objective, or refuses to accept a very favorable plea deal, make sure to put it in writing and send it to the client via mail, email, or client portal just make sure they get it! If they still persist on making their terrible decision, you can ask them on the record whether or not they got your advice and understood it, all without divulging the contents of your communications.

As for the human side this is something we all struggle with. There are some people we just “click” with, and some we do not, and there are some we just can’t reach. But there are techniques for reaching across a communication chasm. I intentionally try to make use of validation, code-switching/mirroring, and finding common ground.

Validation is a technique especially helpful in building a relationship with a difficult or non-trusting client.2 In short, validation involves actively listening to the client, accurately repeating their concerns back to them, actually understanding their point of view in light of their circumstances, and giving the client permission to feel the way they do. A client who feels heard is a client who can then rationally deal with their situation.

Example: I was appointed to a “problem client”. The client was on five years deferred adjudication for a first-degree felony, and was revoked for picking up multiple new charges. The State offered to continue the client on deferred with no new conditions and no extension of time in exchange for a plea to a

2 https://www.psychologytoday.com/us/blog/pieces mind/201204/understanding validation way communicate acceptance

technical violation. The client refused, said he wasn’t guilty in the first place, and wanted to “take the case to the Supreme Court.” My first two sessions with the client went nowhere. On the third session, I sat with the client in a conference room and asked him how he felt about his original plea deal. The client spent thirty minutes complaining about his trial attorney and how unjust the process was. I “validated” his anger by listening to him and telling him that I would be angry in his position too. It was only after he was able to get his anger off of his chest that he was able to hear my advice that taking the State’s offer was the right thing to do.

Mirroring is a technique that, to a degree, allows you to form a rapport by subtly mimicking the client’s speech patterns or behavior.3 Is the client formal? Informal? Do they want to engage in small talk or get down to business? Does the client want to focus on how to solve their problems, or does the client want to discuss how their case makes them feel?

Code-switching is a related technique that for our purposes can be

3 https://www.psychologytoday.com/us/blog/how do life/202110/the power mirroring

defined as shifting or manipulating your language or behavior to appeal to different audiences. We do this constantly, often without even realizing it. For example, when I am talking in my office with the rector of the local church, I will use formal, mannered language. When talking with a gang member in the local jail, I might throw in a cuss word or two and speak informally When talking to a good-ol’-boy, I might let my country accent come out a bit. It is vitally important that you use these techniques subtly, and that you do not talk down to the client. Not much is more toxic to building client trust than inauthenticity. Not much irritates clients more than being treated like they are stupid.

The best method I have found for establishing a good attorney client rapport is establishing common ground, or a human connection with the client. No matter their color, gender, race, or ethnic background, every client is concerned about their case and wants you to show that you are concerned about it too. Every client has a story, a parent, a child, a hope, a fear, something in common with you, if you can just tease it out.

Example: I was referred a juvenile case for a young African-American boy. At the initial meeting his parents told me about son’s incredible achievements at a very young age,

all, they thought, now in peril because of a first degree felony case. At one point during the meeting, his mother turned to me and asked, “Do you know what it’s like, being the mother of a young black man today? Do you know how I feel about this situation.” The only answer, I thought was the truth: “No,” I said. “I don’t. I don’t know anything about being black, or a mother, or being a black mother today. But I do have children, and I do know what it is like to desperately love them. And I know what it is like to see their wide-open universe of opportunity shrink, and I know how much that hurts. So I think I do know what you’re feeling right now. And I will do everything I can to help your son move past that and get back on track to keep achieving those things we know he is capable of.” What I said was sincere, and that sincerity landed the client.

Do’s for building client confidence:

Validate their feelings

Mirror their language patterns

Relate to them on a human level

Don’t:

Talk up/down to the client

Try on an accent you didn’t grow up with

3. Be inauthentic

What do we have to talk about?

We must give our clients enough information to to allow them to decide how to resolve their cases.

“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”4

The client gets to choose the objective, and also has the right to “consult” with the lawyer about the means to achieve them.5 The lawyer, however, is ultimately responsible for the means to achieve them, and has “very broad discretion to determine technical and legal tactics” to achieve the client’s goals.At the end of the day, in criminal cases our clients alone get to make four decisions: (1) whether to plead guilty or not guilty, (2) whether to waive a jury or not, (3) whether to testify, and (4) whether to admit guilt or not.6 Everything else is our responsibility but a smart lawyer will involve the client

4 Tex. Rules Disciplinary P. R 1.03(b).

5 Tex. Rules Disciplinary P. R. 1.02 Cmt. 1.

6 Tex. Rules Disciplinary P. R. 1.02: “(a)

Subject to paragraphs (b), (c), (d), (e), and (f), a lawyer shall abide by a client's decisions…(3) In a criminal case, after consultation with the lawyer, as to a plea

in tactical decision making, both to keep the client happy and because the clients often know their case better than we do after all, they lived it. Especially in assault cases, having the client deeply involved in trial tactics and strategic planning can open up doors to witnesses and information a lawyer can’t glean from state-sponsored discovery.

So what do we need to tell the clients? The Comments to Disciplinary Rule 1.03 help us. Comment 1 says that we must give the client “sufficient information to participate intelligently in decisions” about their objectives and the means to achieve them, IF the client is willing and able to do so.7 Comment 2 clarifies that while in litigation the client should be kept informed of general strategy, the lawyer generally isn’t required to describe trial or negotiation strategy in detail.8 The lawyer should provide information appropriate for a comprehending and reasonable adult, but if the client is a child or suffers from diminished capacity, the lawyer should try to maintain “reasonable

to be entered, whether to waive jury trial, and whether the client will testify.”

See also McCoy v. Louisiana, 138 S. Ct. 1500 (2018).

7 Tex. Rules Disciplinary P. R 1.03, Cmt. 1. 8 Id. at Cmt. 2.

communication” and provide the information appropriate for their ability.9

But what if your client isn’t ready to hear what you have to say? What if they are psychologically unstable and a bad update may push them over the edge? Rule 1.03 has you covered. If you reasonably believe that your client would “imprudently react” to an immediate communication, you are justified in withholding that information.10 You are also justified in withholding information if you’re prohibited by law or court order from doing so a common occurrence under the Art. 39.14 discovery regime.11

Plea Bargains

If there is one thing you absolutely must communicate to a client, it’s a plea offer and the deadline to accept or reject it. “Failure of defense counsel to inform a criminal defendant of plea offers made by the State is an omission that falls below an objective standard of reasonableness.”12 . This includes an

Id., Cmts. 3, 5.

Id., Cmt. 4.

Id.

Turner v. State, 49 S.W.3d 461, 464 (Tex. App. Fort Worth 2001), citing Ex parte Lemke, 13 S.W.3d 791, 795 (Tex. Crim. App. 2000); Randle v. State, 847 S.W.2d 576, 580 (Tex. Crim. App. 1993)

obligation to fully advise the client of the terms and desirability of the plea offer, as well as any deadline.

As previously noted, you must also communicate a client’s acceptance of a deal to the State, and not doing it promptly renders you ineffective. “Just as a defense attorney has an obligation to fully advise his client of the terms and desirability of a plea bargain extended by the State, we hold that he also has a concomitant obligation to communicate the acceptance of such plea bargain to the State.” Flores v. State, 784 S.W.2d 579, 581 (Tex. App.—Fort Worth 1990)13 .

Is there an exception? What if the client already told you they are innocent and not willing to accept any deal? Yes! “Except where prior communications have made it clear that a particular proposal would be unacceptable to the client, a lawyer is obligated to communicate any [plea bargain] to the client…”.14 But honestly, do you want to take that chance?

13 citing Ex parte Wilson, 724 S.W. 2d 72 (Tex.Crim.App. 1987); Pennington v. State, 768 S.W.2d 740 (Tex. App.--Tyler 1988, no writ); STATE BAR OF TEXAS, ETHICAL CONSIDERATIONS ON CODE OF PROFESSIONAL RESPONSIBILITY EC 7 7, EC 7 8 (1988) 14 Tex. Rules Disciplinary P. R. 1.02, Cmt 2.

Example 1: Client, a repeat felon, is pulled over on the way to his girlfriend’s house to settle a domestic dispute between her and her husband. In the car he has a Glock with a 50-round drum magazine, a ski mask, and 2 grams of meth. He is charged with Unlawful Possession Firearm by Felon and PCS Pg 1 14g, both enhanced to 2nd degree felonies. Client say he will do 5 years and won’t accept anything more. The State offers 18. You set the case for trial and before the pretrial the State offers 10 years. You would be justified under the Rules in not tendering the offer. But you do, and the Client ends up taking it. It is always best practice to communicate the offer, in writing if necessary.

In summary, at a minimum you need to talk to the client about their objectives and how to achieve them, and then provide them enough information to make informed decisions about what plea to enter, whether to go to trial or take a deal, whether they should testify, and whether or not to admit guilt at trial.

When do I have to communicate with them?

You are required to keep the client “reasonably informed” of their

15 Tex. Rules Disciplinary P. R. 1.03(a)

matter’s status and “promptly comply” with “reasonable” requests for information.15 This is all very case specific. As an example, in an appellate case my incarcerated client requested an update on his matter months after I filed his brief along with a copy of the appellate record. I sent the client a letter along with a copy of the brief, apologized for the delay in sending it, and told him I would send him the paper copy of the record as soon as I was finished with the reply brief. Furious that I had not made his requested futile and frivolous appellate arguments, the client filed a grievance claiming I did not adequately communicate with him, listen to his desires, or send him the brief and record in a timely manner. The grievance was dismissed as an inquiry.

What about when the case is over? You still have obligations. Ethics Opinions 570 and 657 are clear that your files belong to your clients, and everything in those files must be turned over to them upon request, with certain exceptions. This includes your notes and correspondence! None of it is yours, all of it is the client’s. Well, almost all. You are, for example, forbidden from turning over discovery received from the State under Article 39.14. You are further prohibited from turning over information that is

otherwise confidential or protected, such as information protected by court order (i.e. CPS records) and information about jurors. Finally, as noted above, you are permitted to withhold information from a client if you believe it may harm them or cause them to act imprudently.

Ok, but how do you have to produce the file and, most importantly, who pays for it? Ethics Opinion 657 gives us the answer. You may produce it in the format you keep it, and you can make it available at your office for pick-up. If you have a paper file and want to keep a copy, you have to pay for that copy. However, the client must pay for you to deliver it to them. While you may produce the file in the format you kept it, if any portion of the file is kept in a software format that is not “reasonably accessible” to the client, you must pay to have it transformed into a format the client can open.

Why do I have to communicate with them at all? After all, the practice of law would be great if it wasn’t for the clients.

Yes, yes, that’s partly true. It’s certainly been true for me on one or two dark days. And if you’re having

16 https://www.voiceforthedefenseonline.com/ethics-and-the-law-apeek behind the curtain the tx attorney

one of those days, try to communicate with your clients out of self preservation.16 The most frequently sanctioned misconduct is lack of communication with the client. Don’t be one of the lawyers in the back of the Texas Bar Journal. Talk to your clients.

But the real reason we got into this business in the first place, and the real reason we exist as a profession, is to help people through the minefield of the law, to protect their God-given and Constitutional rights, and, every so often, to be a guardian of justice for the wrongfully accused. Our clients, guilty or not, are scared, confused, anxious, and worried about what might be the most important thing that will ever happen to them. Don’t make their situation worse help them through it by keeping your lines of communication open and honest.

grievance process in a nutshell/, accessed on August 14, 2022.

PRACTICE TIPS

1. Listen to clients and validate their feelings.

2. Subtly use psychological techniques (such as mirroring) to build rapport.

3. Make sure to be authentic and sincere, especially when mirroring or code-switching.

4. Use your engagement agreement to set expectations and manage goals.

5. Use technology to moderate client communications.

6. Inform clients of major updates in their case that could change their objectives.

7. Always promptly communicate plea offers and their deadlines.

8. If in doubt, put it in writing!

Speaker:

Criminal Defense Lawyers Project

Mental Health

October 27, 2022 Beach Resort at South Padre Island South Padre Island, TX

Topic:

702/705 and Mental Health

Sarah Roland

Sarah Roland Defense Lawyer 903 North Elm Street Denton, TX 76201 940.323.9305 phone 940.312.6830 fax sarah@sarahroland.com email https://sarahroland.com/ website

Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Don’t be Complicit

Roland

Texas

“We are all implicated when we allow other people to be mistreated. An absence of compassion can corrupt the decency of a community, a state, a nation.”

Stevenson

The All Too Familiar Stories

The phone rings. It’s a mother. She is tired and frantic. The night before her young adult son was arrested for aggravated assault with a deadly weapon. She was the one who called 911 for help (988 was not available at the time or the mother didn’t know about that resource). Her husband was struggling with their son to take away a knife so that he couldn’t self harm this time. The police arrive and instead of taking the son to the local mental health facility, they take him to jail for the second degree felony. Thus, the frantic call to you for help.

An order of appointment comes in. It’s a murder case. You visit the accused. There are no family members or collaterals listed on anything you’ve been able to find. And it’s clear from the moment you see him that something is off. Your suspicions are quickly confirmed when he is responding to nonexistent external stimuli during your initial meeting with him. He is aggressively reacting to that which is not there. It is those abrupt, aggressive reactions that have destined him to a single cell for 23 hours a day while he is confined in the county jail. You quickly identify insanity as the defense in the case. But you also correctly have the accused evaluated for competency, and no surprise, he is determined to be incompetent. Because of the charge, the accused must be taken to the maximum security unit of the State Hospital system. It will be a long wait. A very, very long wait during which time your client remains unmedicated, confined in solitary cell, and will most certainly further decompensate and deteriorate. Meanwhile, the prosecutors often just put that file away in a drawer to collect dust.

These are real, familiar situations that we encounter regularly. The intersection of the criminal justice system and persons with mental illness is real, is present, and is persistent. The numbers don’t lie. According to the National Alliance on Mental Illness

• About 2 million times each year, people with serious mental illness are booked into jails.

• About 2 in 5 people who are incarcerated have a history of mental illness (37% in state and federal prisons and 44% held in local jails).

• 66% of women in prison reported having a history of mental illness, almost twice the percentage of men in prison.

• Nearly one in four people shot and killed by police officers between 2015 and 2020 had a mental health condition.

• Suicide is the leading cause of death for people held in local jails.

Don’t be Complicit Sarah Roland

• An estimated 4,000 people with serious mental illness are held in solitary confinement inside U.S. prisons.

• About 3 in 5 people (63%) with a history of mental illness do not receive mental health treatment while incarcerated in state and federal prisons.

• Less than half of people (45%) with a history of mental illness receive mental health treatment while held in local jails.

• People who have healthcare coverage upon release from incarceration are more likely to engage in services that reduce recidivism.

https://www.nami.org/mhstats (last visited 9/29/22). The question then is what can we, as criminal defense lawyers, do for our clients with mental illness. The problem is real, is undeniable, and abiding by the status quo just because “that’s the way it is” is not an acceptable answer. There is no quick or easy fix, and the problem is far more expansive than the criminal defense sector. But we cannot be complicit. As criminal defense lawyers we can be knowledgeable of the law to put it to use to best protect our most vulnerable clients and exploit a system in dire need of repair.

Important Statutes

Believe it or not, for several years our law specifically encourages the diversion from jails of persons suffering mental health crisis or substance abuse issues. Article 16.23 of the Texas Code of Criminal Procedure provides mandates the following:

(a) Each law enforcement agency shall make a good faith effort to divert a person suffering a mental health crisis or suffering from the effects of substance abuse to a proper treatment center in the agency's jurisdiction if:

(1) there is an available and appropriate treatment center in the agency's jurisdiction to which the agency may divert the person;

(2) it is reasonable to divert the person;

(3) the offense that the person is accused of is a misdemeanor, other than a misdemeanor involving violence; and

Don’t be Complicit

Sarah Roland

(4) the mental health crisis or substance abuse issue is suspected to be the reason the person committed the alleged offense.

(b) Subsection (a) does not apply to a person who is accused of an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, Penal Code.

Added by Acts 2017, 85th Leg., R.S., Ch. 950 (S.B. 1849), Sec. 2.02, eff. September 1, 2017.

Importantly, the offense must be a misdemeanor and must not allege violence or intoxication. Where allegations of potential violence are concerned, the law still allows police the ability to intervene and handle some mental health crisis situations without making criminal arrests. It is contained within Title 7 of the Health and Safety Code, and it’s not brand new.

Sec. 573.001. APPREHENSION BY PEACE OFFICER WITHOUT WARRANT.

(a) A peace officer, without a warrant, may take a person into custody, regardless of the age of the person, if the officer:

(1) has reason to believe and does believe that:

(A) the person is a person with mental illness; and

(B) because of that mental illness there is a substantial risk of serious harm to the person or to others unless the person is immediately restrained; and

(2) believes that there is not sufficient time to obtain a warrant before taking the person into custody.

(b) A substantial risk of serious harm to the person or others under Subsection (a)(1)(B) may be demonstrated by:

(1) the person's behavior; or

Don’t be Complicit Sarah Roland

(2) evidence of severe emotional distress and deterioration in the person's mental condition to the extent that the person cannot remain at liberty.

(c) The peace officer may form the belief that the person meets the criteria for apprehension:

(1) from a representation of a credible person; or

(2) on the basis of the conduct of the apprehended person or the circumstances under which the apprehended person is found.

(d) A peace officer who takes a person into custody under Subsection (a) shall immediately:

(1) transport the apprehended person to:

(A) the nearest appropriate inpatient mental health facility; or

(B) a mental health facility deemed suitable by the local mental health authority, if an appropriate inpatient mental health facility is not available; or

(2) transfer the apprehended person to emergency medical services personnel of an emergency medical services provider in accordance with a memorandum of understanding executed under Section 573.005 for transport to a facility described by Subdivision (1)(A) or (B).

(e) A jail or similar detention facility may not be deemed suitable except in an extreme emergency.

(f) A person detained in a jail or a nonmedical facility shall be kept separate from any person who is charged with or convicted of a crime.

(g) A peace officer who takes a person into custody under Subsection (a) shall immediately inform the person orally in simple, nontechnical terms:

(1) of the reason for the detention; and

Don’t be Complicit

Sarah Roland

(2) that a staff member of the facility will inform the person of the person's rights within 24 hours after the time the person is admitted to a facility, as provided by Section 573.025(b).

(h) A peace officer who takes a person into custody under Subsection (a) may immediately seize any firearm found in possession of the person. After seizing a firearm under this subsection, the peace officer shall comply with the requirements of Article 18.191, Code of Criminal Procedure.

Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1, 1991. Amended by Acts 2001, 77th Leg., ch. 367, Sec. 5, eff. Sept. 1, 2001.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 318 (H.B. 1738), Sec. 1, eff. September 1, 2013.

Acts 2013, 83rd Leg., R.S., Ch. 776 (S.B. 1189), Sec. 1, eff. September 1, 2013.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1366, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 1236 (S.B. 1296), Sec. 21.001(33), eff. September 1, 2015.

Acts 2017, 85th Leg., R.S., Ch. 541 (S.B. 344), Sec. 2, eff. June 9, 2017.

Acts 2019, 86th Leg., R.S., Ch. 988 (S.B. 1238), Sec. 4, eff. September 1, 2019.

When employed by law enforcement, criminal defense lawyers likely never know because the above provision allows law enforcement to divert a person with mental illness from the criminal justice system from the outset. That is ideal for all involved, and some police departments use this provision. When that is not done, however, and it is obvious that law enforcement should have recognized the situation as a mental health crisis and should have taken the person to a mental health facility but didn’t, that should be exploited in discussions with prosecutors. Police officers and prosecutors should be made aware of this provision [if they aren’t already] and should be encouraged to use it [and encourage its use] in proper circumstances.

Don’t be Complicit Sarah Roland

And, of course the goal of Article 16.22 of the Code of Criminal Procedure is for the jail to identify persons with mental illness or intellectual disability very early in the process if they have not been diverted to another facility. The law is mandatory and provides, in relevant part:

(a)(1) Not later than 12 hours after the sheriff or municipal jailer having custody of a defendant for an offense punishable as a Class B misdemeanor or any higher category of offense receives credible information that may establish reasonable cause to believe that the defendant has a mental illness or is a person with an intellectual disability, the sheriff or municipal jailer shall provide written or electronic notice to the magistrate. The notice must include any information related to the sheriff's or municipal jailer's determination, such as information regarding the defendant's behavior immediately before, during, and after the defendant's arrest and, if applicable, the results of any previous assessment of the defendant.

This law is very helpful. By its own verbiage all that is required for such a report to be made to the magistrate is “credible information that may establish reasonable cause to believe that the defendant has a mental illness or is a person with an intellectual disability.” The information is not limited to observations by officers. The information can come from family members, friends, and/or lawyers. Once the information is received, and on a determination that there is reasonable cause to believe the person has a mental illness or intellectual disability, mental health interventions must begin. See Tex. Code Crim. Proc. art. 16.22. This is all documented and is discovery that we should be demanding in every request for discovery we make. After all, this information could yield helpful evidence to a potential insanity defense. Additionally, consider requesting to attend any and all interviews with your client in order to protect their constitutional rights as well as gain information previously unknown.

In 2003, the United States Supreme Court addressed the issue of whether the Constitution permits the Government to administer antipsychotic drugs involuntarily to a mentally ill criminal defendant in order to render that defendant competent to stand trial for serious, but nonviolent, crimes. Sell v. U.S., 539 U.S. 166, 169 (2003). The following law was enacted shortly after the USSC’s decision in Sell:

Art. 46B.086. COURT ORDERED MEDICATIONS. (a) This article applies only to a defendant:

Don’t be Complicit Sarah Roland

(1) who is determined under this chapter to be incompetent to stand trial;

(2) who either:

(A) remains confined in a correctional facility, as defined by Section 1.07, Penal Code, for a period exceeding 72 hours while awaiting transfer to an inpatient mental health facility, a residential care facility, or an outpatient competency restoration program;

(B) is committed to an inpatient mental health facility, a residential care facility, or a jail based competency restoration program for the purpose of competency restoration;

(C) is confined in a correctional facility while awaiting further criminal proceedings following competency restoration; or

(D) is subject to Article 46B.072, if the court has made the determinations required by Subsection (a 1) of that article;

(3) for whom a correctional facility or jail based competency restoration program that employs or contracts with a licensed psychiatrist, an inpatient mental health facility, a residential care facility, or an outpatient competency restoration program provider has prepared a continuity of care plan that requires the defendant to take psychoactive medications; and

(4) who, after a hearing held under Section 574.106 or 592.156, Health and Safety Code, if applicable, has been found to not meet the criteria prescribed by Sections 574.106(a) and (a 1) or 592.156(a) and (b), Health and Safety Code, for court ordered administration of psychoactive medications.

(b) If a defendant described by Subsection (a) refuses to take psychoactive medications as required by the defendant's continuity of care plan, the director of the facility or the program provider, as applicable, shall notify the court in which the criminal proceedings are pending of that fact not later than the end of the next business day following the refusal. The court shall

Don’t be Complicit

Sarah Roland

promptly notify the attorney representing the state and the attorney representing the defendant of the defendant's refusal. The attorney representing the state may file a written motion to compel medication. The motion to compel medication must be filed not later than the 15th day after the date a judge issues an order stating that the defendant does not meet the criteria for court ordered administration of psychoactive medications under Section 574.106 or 592.156, Health and Safety Code, except that, for a defendant in an outpatient competency restoration program, the motion may be filed at any time.

(c) The court, after notice and after a hearing held not later than the 10th day after the motion to compel medication is filed, may authorize the director of the facility or the program provider, as applicable, to have the medication administered to the defendant, by reasonable force if necessary. A hearing under this subsection may be conducted using an electronic broadcast system as provided by Article 46B.013.

(d) The court may issue an order under this article only if the order is supported by the testimony of two physicians, one of whom is the physician at or with the applicable facility or program who is prescribing the medication as a component of the defendant's continuity of care plan and another who is not otherwise involved in proceedings against the defendant. The court may require either or both physicians to examine the defendant and report on the examination to the court.

(e) The court may issue an order under this article if the court finds by clear and convincing evidence that:

(1) the prescribed medication is medically appropriate, is in the best medical interest of the defendant, and does not present side effects that cause harm to the defendant that is greater than the medical benefit to the defendant;

(2) the state has a clear and compelling interest in the defendant obtaining and maintaining competency to stand trial;

(3) no other less invasive means of obtaining and maintaining the defendant's competency exists; and

Don’t be Complicit

Sarah Roland

(4) the prescribed medication will not unduly prejudice the defendant's rights or use of defensive theories at trial.

(f) A statement made by a defendant to a physician during an examination under Subsection (d) may not be admitted against the defendant in any criminal proceeding, other than at:

(1) a hearing on the defendant's incompetency; or

(2) any proceeding at which the defendant first introduces into evidence the contents of the statement.

(g) For a defendant described by Subsection (a)(2)(A), an order issued under this article:

(1) authorizes the initiation of any appropriate mental health treatment for the defendant awaiting transfer; and

(2) does not constitute authorization to retain the defendant in a correctional facility for competency restoration treatment.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch. 717 (S.B. 465), Sec. 8, eff. June 17, 2005.

Acts 2007, 80th Leg., R.S., Ch. 1307 (S.B. 867), Sec. 9, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch. 624 (H.B. 1233), Sec. 4, eff. June 19, 2009.

Acts 2011, 82nd Leg., R.S., Ch. 822 (H.B. 2725), Sec. 17, eff. September 1, 2011.

Acts 2013, 83rd Leg., R.S., Ch. 504 (S.B. 34), Sec. 4, eff. September 1, 2013.

Don’t be Complicit

Sarah Roland

Acts 2017, 85th Leg., R.S., Ch. 748 (S.B. 1326), Sec. 28, eff. September 1, 2017.

Mental Health Treatment Courts

Mental health awareness and advocacy is slowly trickling into the criminal justice system. Texas Government Code Chapter 125 outlines the statutorily required characteristics for Mental Health Court Programs. There are only 14 recognized mental health courts in Texas. See http://texasjcmh.gov/technical assistance/mental health courts/ (last visited 10/4/22). These are relatively new diversionary court programs designed to route people out of the traditional criminal justice system through a holistic approach to treatment which often includes counseling, medication, help with attaining employment and housing. The incentive, aside from the aforementioned, is a dismissal of the criminal charge. Know if your county has a [recognized] mental health treatment court, be familiar with the program, and always be proactive in getting your client routed into the program. If your county does not have such a program be an advocate for a mental health court diversionary program.

Need to Know Cases

Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997)

Lagrone was indicted for and convicted of three counts of capital murder. Defense counsel filed a motion requesting expert witnesses in psychiatry and psychology since counsel anticipated that Lagrone mental health would be a significant factor at the punishment phase of trial. The State filed a subsequent motion requesting and independent mental examination of Lagrone for rebuttal. The State’s motion also requested the court to exclude the testimony of Lagrone’s mental health expert if Lagrone failed to cooperate with the State’s expert. The trial court granted the State’s motion and ordered Lagrone to submit to a psychiatric examination with the following restrictions:

1. State shall notify the defendant's counsel, in advance of the time and place of the examination. Defendant's counsel may not be present during the examination. The defendant may recess the interview and consult with counsel.

Don’t be Complicit

Sarah Roland

2. Dr. Coons shall not relate by any manner or means his conversations, findings, conclusions and opinions with any State prosecutors or agents. Dr. Coons shall reduce his findings, conclusions and opinions to writing and deliver the same to the Court for in camera inspection.

3. The Court, after examination of Dr. Coons' report, will decide whether to release the ultimate conclusions only. If the Court determines the report to contain Brady material, it shall release that [material] to the attorneys.

Id. at 610. Lagrone refused to cooperate with the State’s expert. At trial, the court allowed the State to introduce evidence that Lagrone had failed to cooperate and also allowed the State’s expert to answer hypothetical questions. Based on those hypothetical questions, the State’s expert opined that the hypothetical defendant would constitute a continuing threat to society. Id. The Court of Criminal of Appeals held that trial courts can order “criminal defendants to submit to a state sponsored psychiatric exam on future dangerousness when the defense introduces, or plans to introduce, its own future dangerousness expert testimony.” Id. at 611. Important to the Court’s analysis is that “[o]ur sense of justice will not tolerate allowing criminal defendants to testify through the defense expert and then use the Fifth Amendment privilege against self incrimination to shield themselves from cross examination on the issues which they have put in dispute.” Id.

Then, unsurprisingly, in Lizcano v. State, No. AP 75,879, 2010 WL 1817772 (Tex. Crim. App. 2010) (not designated for publication), the Court of Criminal Appeals extended the ruling to “psychological examinations to determine mental retardation.” 2010 WL at *8. “When the defense demonstrates the intent to introduce evidence of the defendant’s mental retardation through psychological examinations conducted by defense experts, the trial court may order the defendant to submit to an independent, state sponsored psychological examination on the issue of mental retardation.” Id.

The following are the lessons from Lagrone and Lizcano:

• Always file motions for experts ex parte and sealed;

• Do not designate any experts until required to do so;

Don’t be Complicit Sarah Roland

• If the State requests its own examination, request the court to put restrictions on the examination;

• Request for your expert to be present and/or have the examination videoed when the State’s expert is conducting their examination; and

• Request that the State expert’s examination be strictly limited to that which the defense expert performed.

Ruffin v. State, 270 S.W.3d 586 (Tex. Crim. App. 2008)

Ruffin suffered from mental health issues including delusions. One evening police responded to Ruffin’s house to investigate reports of shots fired. Police were informed about Ruffin’s condition. When police arrived Ruffin fired several shots in their direction. Witnesses testified that Ruffin didn’t things like this and that he appeared “startled” when he realized that he had been shooting at police officers. Ruffin was subsequently charged with multiple counts of aggravated assault against a public servant. Several lay witnesses testified about Ruffin’s mental status around the time of the offense. Ruffin also testified about his delusions leading up to and during the offense. Ruffin believed he was shooting at a trespasser and also testified that he believed “Muslims was hunting me so I was out there hiding in the bushes.” Id. at 590. Ruffin also proffered the testimony of a psychologist who said that Ruffin was not legally insane but had a diminished capacity to make rational judgments because he was hearing and seeing things that did not exist. Id. The trial court excluded the psychologist from testifying before the jury because the court believed the testimony was more akin to an insanity defense. However, the Court of Criminal Appeals held that evidence of Ruffin’s mental status could be relevant to whether Ruffin intended to shoot at a police officer (his mens rea).

The following are the big take aways from Ruffin:

• Testimony from lay witnesses about an accused’s mental status can be relevant and admissible; and

• Although there is no “diminished capacity” defense in Texas other than insanity, evidence that an accused was not able to form the requisite mens rea is always relevant.

General Considerations in Handling Expert Witnesses

In dealing with any expert witnesses, there are additional, different considerations than of the average police officer or civilian witness. These considerations must be dealt with

Don’t be Complicit

Sarah Roland

in advance of trial in order to have the optimal result at trial and to keep out, when possible and necessary, bad forensic science. What follows is not an exhaustive discussion of every potential issue, but rather a discussion of the recurring areas that need to be addressed in every case with forensic experts.

At the outset, it is important to learn as much as possible about the particular issues of the case. While lawyers are not experts, it does not mean that lawyers should leave all the explaining to the experts. Lawyers must be able to explain the science in a way that makes sense to the jurors which means that the lawyer must have a basic understanding of the science at issue. Additionally, without a basic, working knowledge of the forensic science at issue in the case, it will be impossible to effectively cross examine the state’s forensic expert. There are books of every variety (from easy to understand to exceedingly complex) about every scientific/psychologic discipline. It is good practice to get copies, if possible, of any publications authored by the state’s expert.

Experts generally like to talk and educate others. Be sure not to allow the expert to use words that you and/or the jury does not understand. Jurors can mistake big scientific words for intellect and answers when in fact an expert may just be using those words to dodge the question being asked. So, be sure to make the expert answer the question asked. This can be difficult depending on the expert. One way to accomplish this is by asking simple, direct questions. Of course, sometimes it can be advantageous if the jury does not understand anything from the state’s expert if the defense has its own expert. In that situation, it is imperative that the defense expert explain things in a way that is understandable to the regular, non expert person.

In preparing for trial, it is important to acknowledge that jurors will have preconceived notions about experts. Jurors generally come in believing that experts are advocates for the science, know more than anyone else about their subject matter, and that an expert would not lie or stretch the science to fit a particular result. Also, it is important to understand that when any kind of scientific discipline is part of a case it is usually the part of the case that the jurors will rely on the most. Science doesn’t lie after all. But, as we know, it’s not as simple as that. If psychology is reliable, then the results of any testing are only as reliable and trustworthy as the psychologist employing them. This must be addressed in jury selection. Perhaps get the conversation started in jury selection by asking jurors if they have gotten a second (or third) opinion from a doctor. Be sure to explain, particularly if the defense expert is more qualified and/or experienced, that there are good doctors and bad doctors, good teacher and bad teachers, good lawyers and bad lawyers, etc. There are some people in their professions that are just better than others. Explain or start the conversation as to why that is true.

Some experts continue to research, practice, attend continuing education, etc. If set up

Don’t be Complicit Sarah Roland

properly in jury selection, then it is easy to point out these disparities in cross examination.

Ahead of trial, it important to learn as much about the state’s expert as possible. Collect curriculum vitae, do a general Google search for the expert, and find any publications the expert may have authored. It is typically advisable to meet the state’s expert, too. Just be aware of Comment 3 to Rule 4.02(b) of The Texas Disciplinary Rules of Professional Conduct which provides

that unless authorized by law, experts employed or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large.

Remember that nothing is on the record at this meeting and there is no jury watching. This purpose of this meeting is purely information gathering. Have the state’s expert educate you on their opinion of the issue. Make observations about the expert particularly if you are invited to their office. If the expert will not meet with you, then this can be good fodder for cross examination.

Perhaps most important, always have qualification hearings pursuant to Article VII of the Rules of Evidence in every case every time an expert is involved. Even if the underlying scientific theory is valid, have the hearing to find out what the expert reviewed prior to forming the opinion, how the methodology may have been applied in a particular case, and what opinion the expert intends to offer. If nothing else, setting these parameters preliminarily will help the expert confined to certain areas of testimony.

Conclusion

It is up to us to challenge the status quo. We cannot simply abide in this system of complacency. Understanding the law in order to use it for the best interests of our client is paramount. We can never become complicit.

Don’t be Complicit

Sarah Roland

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the COMANCHE CLUB in the amount of $_________

CHRISTINE S. CHENG MEMORIAL Asian-American

MARTINEZ TRIAL COLLEGE Travel Scholarship in the amount

PACE

LAWYER TRAVEL FUND in the amount

& Travel

in the amount of

Texas Criminal Defense Lawyers Educational Institute Super Fellows | Fellows | Associate Fellows Pledge Form

About Super Fellows , Fellows & Associate Fellows

TCDLEI Bylaws, Art. III, § 3. Super Fellows, Fellows, and Associate Fellows

A. Super Fellow—A member of the Institute becomes eligible for election as a Super Fellow Member by (a) making outstanding contributions to the Institute, or (b) contributing at least $3,000 in cash or pledge to the Institute or (c) a person who has in the opinion of the Board of Texas Criminal Defense Lawyers Educational Institute made a contribution of time and effort in the furtherance of the education and training of criminal defense attorneys in the State of Texas. An affirmative vote of the majority of the Board of Directors of the Institute is required to elect a member as a Super Fellow.

B. Fellow—A member of the Institute becomes eligible for election as a Fellow Member by (a) making outstanding contributions to the Institute, or (b) contributing at least $1,500 in cash or pledge to the Institute or (c) a person who has in the opinion of the Board of Texas Criminal Defense Lawyers Educational Institute made a contribution of time and effort in the furtherance of the education and training of criminal defense attorneys in the State of Texas. An affirmative vote of the majority of the Board of Directors of the Institute is required to elect a member as a Fellow.

C. Associate Fellow—A member of the Institute becomes eligible for election as an Associate Fellow Member by (a) making outstanding contributions to the Institute, or (b) contributing at least $750 in cash or pledge to the Institute or (c) a person who has in the opinion of the Board of Texas Criminal Defense Lawyers Educational Institute made a contribution of time and effort in the furtherance of the education and training of criminal defense attorneys in the State of Texas. An affirmative vote of the majority of the Board of Directors of the Institute is required to elect a member as an Associate Fellow.

Pledge

Pledge Options

q Associate Fellow—$750 q Fellow—$1,500 q Super Fellow—$3,000*

Payment Options

Enclosed is the full pledge amount

Scheduled payments ( select one):

Fellow 1-year plan—$1,500

3 payments of $500 (quarterly)

5 payments of $300 (every other month)

payments of $125 (monthly)

Fellow

, pledge to contribute $ to TCDLEI.

3 payments of $250 q monthly

every other month

Fellow 1-year plan

3 payments of $1,000 (quarterly)

payments of $600 (every other month)

payments of $250 (monthly)

Fellow 2-year plan

6 payments of $500 (quarterly)

payments of $300 (every other month)

of $125 (monthly)

Contact Information