The appeal in Kelly v. Houston Methodist Hospital is now fully briefed. The plaintiffs filed their reply brief late last week. The Texas First Court of Appeals will soon set oral argument.
1. The death of Chris Dunn did not moot either his or Evelyn Kelly’s declaratory judgment claim or civil rights claims for the violation of their procedural and substantive due process rights by Methodist under color of state law through the use of Tex. Health & Safety Code §166.046.
2. Because the trial court erred in finding the case was moot and that it lacked jurisdiction, and because there were cross-motions for summary judgment heard at the court’s request, this court must reverse and render the judgment that the trial court should have: that §166.046 is unconstitutional, both facially and as applied, and Plaintiffs are entitled to nominal damages under 42 U.S.C.§1983.