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Posted on April 27, 2018 at 4:30 AM

Houston Methodist Hospital has filed its opposition brief in the Texas Court of Appeals. The appeal concerns whether a challenge to the constitutionality of the Texas Advance Directives Act may proceed in Harris County.

The hospital predictably argues that the case is moot. Since the patient is dead, the case is obvious moot and there is no live case or controversy. But conflicts over end-of-life medical constitute a paradigm exception to the mootness doctrine. They are disputes capable or repetition yet evading review. If the court’s provide no guidance on moot cases, we will never get any guidance at all.

The hospital’s arguments on state action are more complicated. Constitutional due process only applies if there is state action. By enacting TADA, has the state of Texas delegated state power to a private hospital? Because the statute makes hospital review committees the forum of last resort, this does look like a delegation and exercise of state power.

As I have written many times, if a court reaches the merits of the procedural due process challenge, the plaintiffs have a strong case. Oral argument will be schedules later this year in Houston. 

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