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Coronavirus: Can Texas force Parents to Quarantine Their Kids (and themselves)?

Mar 06 2020

It was reported earlier this week that with the number of Covid-19 corona virus cases increasing, the 11 regional presiding judges in Texas earlier this week began appointing judges within their respective region to be available to process cases where infected people refused to self-quarantine. The Texas Office of Court Administration[1] is in charge of this project. When can someone be forced into quarantine, and what are the criteria for making that decision? That is what we will discuss today.

Since there have been no reported cases in Texas where a person infected by the Covid-19 coronavirus has refused to self-quarantine, this week’s actions are merely precautionary. According to personnel at John Peter Smith Hospital in Fort Worth, Texas who I spoke with on March 5, 2020, they have previously had to require patients infected with tuberculosis to be quarantined, when those patients refused to self-quarantine themselves. So, the potential refusal of a patient infected with Covid-19 to self-quarantine should not be surprising.

The Communicable Disease Prevention and Control Act[2] provides the procedures, jurisdiction, and requirements, to force someone to be quarantined against that person’s will.

That act provides that “(t)he state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease.”[3] That act expressly provides that the individual may be isolated or quarantined in an appropriate facility and shall obey the rules, orders, and instructions of the department or health authority while in isolation or quarantine.” and, that during a “emergency or an area quarantine,” such persons may be forcibly treated.[4] So, the question remains about when can that can happen.

Our District Courts have jurisdiction of these cases,[5] and get involved with them when a health authority requests a “court order for the management of a person with a communicable disease” by filing a sworn application through “a municipal, county, or district attorney.”[6] Part of that application includes a medical evaluation and/or a copy of any administrative order finding “reasonable cause to believe that an individual is ill with, has been exposed to, or is the carrier of a communicable disease,”[7] which authorized the forced quarantine of a person prior to seeking the court order.

When an application for management (quarantine) of a person is filed, the court must appoint each individual a “an attorney to represent (him or her) not later than the 24th hour after the time” that the application is filed.[8] Then, the court must set a hearing for at least 3 days, but no more than 14 days, later, unless either a quicker hearing, or a delay (“continuance”), is requested by the individual.[9]

Prior to that hearing, the state may request that the person be held in protective custody.[10] That is done by the filing a motion and affidavit stating that there is reason to believe that the person meets the criteria to mandate quarantine upon that person.[11]

On the basis of that motion and affidavit, the court may issue an order for protective custody of the person, prior to the hearing on the application for management (quarantine), if the court determines that “the health authority or department has stated its opinion and the detailed basis for its opinion that the person is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to the public health; and that the person fails or refuses to comply with the” requested quarantine).[12] The person may be apprehended and transported to a designated facility, to remain until a hearing occurs.[13]

The next step in the process is setting, and notifying, the person and his or her attorney of a “Probable Cause” hearing,[14] to determine whether there is probable cause to hold the person until a final hearing can be had.[15] This hearing must occur “not later than 72 hours after the time that the person was detained under the protective custody order.”[16] The person who is the subject of the proceeding may introduce evidence to challenge the allegations made against him or her.[17]

At the conclusion of the Probable Cause hearing, “The magistrate or master shall order that a person remain in protective custody if the magistrate or master determines after the hearing that an adequate factual basis exists for probable cause to believe that the person presents a substantial risk of serious harm to himself or others to the extent that the person cannot remain at liberty pending the hearing on the application.”[18]

With those preliminary matters taken care of, the court can then consider the underlying application for management of the person who is the subject of the case. At that hearing, in order to prevail, the state must prove by clear and convincing evidence that the person:

  • is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health;
  • has refused or failed to follow the orders of the health authority if the application is for inpatient treatment; and
  • meets the applicable criteria for orders for the management of a person with a communicable disease.”[19]

Unless the state can meet that high burden of proof, the person must be immediately released.[20]

The goal of protecting public health must be balanced with the individual liberties of people. To prevent state health authorities from over-reacting, and thereby, wrongly depriving us of our freedoms, the laws regarding quarantine provide numerous safeguards. The state cannot arbitrarily decide to quarantine people. Instead, they can only do so when they have sufficient evidence to support that action.

 

[1] According to its website, “The Office of Court Administration (OCA) is a unique state agency in the Judicial Branch that operates under the direction and supervision of the Supreme Court of Texas and the Chief Justice.

Our mission is to provide resources and information for the efficient administration of the Judicial Branch of Texas.”

 

[2] HEALTH AND SAFETY CODE TITLE 2. HEALTH SUBTITLE D. PREVENTION, CONTROL, AND REPORTS OF DISEASES CHAPTER 81. COMMUNICABLE DISEASES

[3] Subchapter G, Sec. 81.002 of the Communicable Disease Prevention and Control Act (hereinafter “the act”)

[4] Sec. 81.009(a)

[5] Sec. 81.157 & 81.151.(b) of the act

[6] Sec. 81.151(a) of the act.

[7] Sec. 81.083(b) of the act

[8] Sec. 81.153(a) of the act

[9] Sec. 81.154 of the act

[10] Sec. 81.161 of the act

[11] Sec. 81.161 of the act

[12] Sec. 81.162(a) of the act

[13] Sec. 81.163 of the act

[14] Sec. 81.164 of the act

[15] Sec. 81.165(a) of the act

[16] Sec. 81.165(b) of the act

[17] Sec. 81.165(d) of the act

[18] Sec. 81.166(a) of the act

[19] Sec. 81.171(a) of the act

[20] Sec. 81,171(b) of the act

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The Heiman Law Firm provides professional family law services in cases such as divorce, child custody, child support, CPS, adoption and more. We have been proudly serving clients, primarily in Denton County, for over 25 years.

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Lewisville, TX 75067

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Frisco, TX 75033

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