







Reversed and Rendered and Majority and Dissenting Opinions filed
December 22, 2005








Reversed and Rendered and
Majority and Dissenting Opinions filed December 22, 2005.
 
 
In The
 
Fourteenth Court of Appeals
_______________
 
 
NO. 14-04-00981-CV
_______________
 
 
IN RE F.M.
 
__________________________________________________________
 
On Appeal from the Probate Court
Galveston County, Texas
Trial Court Cause Nos. 2322 & 2322A
__________________________________________________________
 
M A J O R I T
Y   O P I N I O N
Appellant, F.M., appeals from an order of commitment for
temporary inpatient mental health services and an order to administer
psychoactive medication.  In three
issues, F.M. challenges the sufficiency of the evidence to support the trial
court=s orders.  We reverse and render.




I. 
Background
On September 8, 2004, F.M. was taken by ambulance to the
University of Texas Medical Branch (AUTMB@) from her group home where she had
stayed up all night drawing.  F.M. had
announced that she would become a doctor and buy a red truck, and was
cheerleading, jumping, and laughing.  
Approximately two weeks later, a psychiatrist at UTMB filed
an application for court-ordered temporary mental health services.  The application stated that F.M. was Airritable and easy to anger@ and Arefusing to take medications.@ 
Following a hearing on September 29, 2004, the trial court ordered that
F.M. be committed to Austin State Hospital for inpatient care not to exceed 90
days.[1]  Also on September 29, 2004, following a
separate hearing, the trial court signed an order authorizing the Department of
Health and Human Services to forcibly administer the following classes of
psychoactive medication: antidepressants, antipsychotics,
aniolytics/sedatives/hypnotics, mood stabilizers, and stimulants. 
II. 
Statutory Requirements for Commitment 
A trial court may order a mentally ill patient to receive
court-ordered temporary inpatient mental health services if the State proves,
by clear and convincing evidence, that the proposed patient is mentally ill,
and as a result of that mental illness, the proposed patient:
(A) is likely to cause serious harm to himself;
(B) is likely to cause serious harm to others; or 
(C) is:
                        (i)
suffering severe and abnormal mental, emotional, or physical distress;




(ii) experiencing substantial mental or physical
deterioration of the proposed patient=s
ability to function independently, which is exhibited by the proposed patient=s inability, except for reasons of indigence, to
provide for the proposed patient=s basic
needs, including food, clothing, health, or safety; and 
(iii) unable to make a rational and informed decision
as to whether or not to submit to treatment. 

 
Tex. Health & Safety Code Ann. ' 574.034(a) (Vernon 2003).  
The statute further provides:
To be clear and convincing . . . the evidence must
include expert testimony and, unless waived, evidence of a recent overt act or
a continuing pattern of behavior that tends to confirm:
(1) the likelihood of serious harm to the proposed
patient or others; or 
(2) the proposed patient=s
distress and the deterioration of the proposed patient=s ability to function.
 
Tex. Health & Safety Code Ann. ' 574.034(d) (Vernon 2003) (emphasis
added).  
The judge or jury must specify which criterion under the
Texas Health and Safety Code forms the basis for the commitment order.  Tex.
Health & Safety Code Ann. ' 574.034(c) (Vernon 2003).  In addition, the overt act or continuing
pattern of behavior Amust relate to the criterion on which the judgment is based.@  See J.M. v. State, Nos.
01-05-00146-CV, 01-05-00147-CV, __ S.W.3d __, 2005 WL 1606931, at *7 (Tex. App.CHouston [1st Dist.] July 7, 2005, no
pet. h.) (citing In re C.O., 65 S.W.3d 175, 181 (Tex. App.CTyler 2001, no pet.)).  




Here, the trial court found that F.M. is mentally ill, and as
a result of that mental illness, the following two statutory criteria were
satisfied: (1) F.M. was likely to cause serious harm to herself; and (2) F.M.
was suffering severe distress; experiencing substantial deterioration of her
ability to function independently; and unable to make a rational and informed
decision about whether to submit to treatment. 
See Tex. Health &
Safety Code Ann. ' 574.034(a)(2)(A), (C). 

III. 
Legal Sufficiency
In her first and third issues, F.M. contends the evidence is
legally insufficient to support the order for temporary mental health services
and the order to administer psychoactive medication.  
Clear and convincing evidence is Athat measure or degree of proof which
will produce in the mind of the trier of fact a firm belief or conviction as to
the truth of the allegations sought to be established.@ 
State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979) (per
curiam).  When the burden of proof is
heightened to a clear and convincing standard, the standard of review for legal
sufficiency of the evidence is also heightened. 
City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005); see
Campbell v. State, 68 S.W.3d 747, 758B59 (Tex. App.CHouston [14th Dist.] 2002), aff=d 85 S.W.3d 176 (Tex. 2002) (noting the heightened
standard is required to protect the rights of the individual).  We must consider all evidence in the light
most favorable to the finding to determine whether a reasonable trier of fact
could have formed a belief or conviction that its findings were true.  In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002).  We must also assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so, and disregard all evidence that a reasonable factfinder
could have disbelieved or found to be incredible.  Id. 

F.M. does not challenge the finding that she is mentally ill,
but contends the evidence is legally insufficient to support the finding that
she meets either of the two additional criteria.  Specifically, she contends the State failed
to show a recent overt act or continuing pattern of behavior that tends to
confirm either (1) the likelihood of serious harm to herself, or (2) her
distress and the deterioration of her ability to function.  See Tex. Health & Safety Code Ann. ' 574.034(d).




A.        Likelihood of Serious Harm 
Dr. Michael O=Boyle, a board-certified psychiatrist at UTMB, was the sole
witness to testify on behalf of the State at the commitment hearing.  Based on his evaluation, Dr. O=Boyle determined that F.M. was
mentally ill, and related her diagnosis as bipolar manic.  During the hearing, the State asked Dr. O=Boyle if, as a result of her mental
illness, F.M. was likely to cause serious harm to herself.  Dr. O=Boyle replied, AI believe so, yes.@ 
The State then asked Dr. O=Boyle if there were any recent overt
acts or continuing patterns of behavior that tended to confirm his
testimony.  In response, Dr. O=Boyle testified as to F.M.=s refusal to submit to medical
treatment and her Amood ability.@ 
1.  Refusal to Submit
to Medical Treatment
We will first address the State=s argument that F.M.=s refusal to submit to medical
treatment constitutes an overt act or a continuing pattern of behavior tending
to show a likelihood of serious harm under the Texas Health and Safety
Code.  At the hearing, Dr. O=Boyle testified that F.M. had been Apretty consistently@ refusing her medication.  He further testified that his main concern
was that F.M. had a history of breast cancer. 
Dr. O=Boyle explained that he had planned
to recommend that F.M. be committed to UTMB for her to receive radiation
treatment.  However, he changed his
recommendation to commitment to Austin State Hospital because F.M. refused to
submit to the treatment.[2]








This court has previously held that testimony concerning a
proposed patient=s refusal to take prescribed medications together with
unspecified Aactions at home@ and Abizarre behavior at the emergency
room@ constituted legally and factually
sufficient evidence to support an involuntary commitment order.  See In re G.H., 94 S.W.3d 115, 115B17 (Tex. App.CHouston [14th Dist.] 2002, no
pet.).  The dissent expressed concern
that the majority declined to follow the preponderance of Texas authority
holding a patient=s refusal to take medication is insufficient evidence of a
recent overt act or continuing pattern of behavior.[3]
 See id. at 117; see also, G.H.
v. State, 96 S.W.3d 629, 635 (Tex. App.CHouston [1st Dist.] 2002, no pet.)
(disagreeing with the analysis of this court=s majority opinion in In re G.H.).
 The In re G.H. majority
relied on three cases in which other courts indicated that refusal to take
medication may affect a proposed patient=s ability to function and make
rational decisions about treatment under the third criterion of
commitment.  See In re G.H., 94
S.W.3d at 117 n.2 (citing In re K.D.C., 78 S.W.3d 543, 550 (Tex. App.CAmarillo 2002, no pet.); D.J. v.
State, 59 S.W.3d 352, 356B57 (Tex. App.CDallas 2001, no pet.); Mezick v. State, 920 S.W.2d
427, 430 (Tex. App.CHouston [1st Dist.] 1996, no writ)).  Accordingly, In re G.H. should not
be cited to support the contention that refusal to take medication, without
more, is an overt act or continuing pattern of behavior as contemplated by the
Health and Safety Code.
Both a medical and legal determination of the grounds for
involuntarily committing a person to a mental hospital are required before the
State is justified in depriving a mentally ill person of his or her
liberty.  Moss v. State, 539
S.W.2d 936, 950 (Tex. Civ. App.CDallas 1976, no writ); see O=Connor v. Donaldson, 422 U.S. 563, 575 (1975) (AA finding of >mental illness= alone cannot justify a State=s locking a person up against his
will and keeping him indefinitely in simple custodial confinement.@); Humphrey v. Cady, 405 U.S.
504, 509 (1972) (noting that the jury serves the Acritical function@ in a commitment proceeding of
introducing a lay judgment Aconcerning the kinds of potential harm that justify the State
in confining a person for compulsory treatment@). 
Evidence of an overt act or continuing pattern of behavior is
specifically required by the Texas Health and Safety Code in addition to expert
opinion.  Tex. Health & Safety Code Ann. ' 574.034(d).  Evidence establishing that an individual is
mentally ill and in need of treatment alone does not satisfy the statutory
standard.  In re K.D.C., 78
S.W.3d at 550.  




If we were to adopt the State=s position and hold that refusal of
medication or medical treatment per se can constitute an overt act or
continuing pattern of behavior sufficient to fulfill the clear and convincing
standard,  the medical and legal determination
would become conflated.  A person
diagnosed with mental illness could be forced to submit to treatment based on
nothing more than the very fact that he or she did not wish to be treated.  See J.M., 2005 WL 1606931, at *9
(noting a similar tautology in discussing evidence regarding a proposed patient=s refusal to cooperate with
treatment).  By this circular reasoning,
the State would have carte blanche to involuntarily commit anyone who had been
diagnosed with mental illness and either preferred to pursue alternative means
of treatment, or determined, contrary to psychiatric advice, that the negative
side-effects and other risks of available medication outweighed the
benefits.  This reasoning poses a grave
concern, especially for those relying on State psychiatric advice who are
unable to afford the luxury of obtaining an independent second opinion.[4]




The State relies on Johnson v. State, in which the San
Antonio Court of Appeals reasoned that an individual who cannot make a rational
decision to receive treatment poses a threat to his own well being.  693 S.W.2d 559, 563 (Tex. App.CSan Antonio 1985, no writ) (emphasis
added).  However, the appellant in Johnson
did not challenge the sufficiency of the evidence to support the commitment
order; rather, she challenged the constitutionality of the commitment
statute.  Id.  Johnson=s argument was based on the United
States Supreme Court=s holding in O=Connor v. Donaldson that there is no constitutional
basis for confining the mentally ill if Athey are dangerous to no one and can
live safely in freedom.@  422 U.S. at 575. She argued that the
third criterion for commitment in Texas was overbroad because it allowed
nondangerous individuals to be involuntarily committed.[5]  Johnson, 693 S.W.2d at 563.  The San Antonio Court of Appeals held that
the third criterion incorporated a dangerousness standard in keeping with due
process requirements because an individual who cannot make a rational decision
concerning treatment poses a threat to his own well being.  Id.  In a subsequent opinion, the court clarified
that the act of refusing medication was not an overt act sufficient to support
a finding of clear and convincing evidence under the third criterion, but was
instead relevant to the inquiry concerning a proposed patient=s ability to make a rational and
informed treatment decision.  In re
Breeden, 4 S.W.3d 782, 789B90 (Tex. App.CSan Antonio 1999, no pet.). 

The present case illustrates the danger of divorcing the
proposed patient=s underlying rationale from the decision to refuse treatment
itself.  It is not clear from the record
which medication(s) F.M. refused.  It is
also not clear when or how often F.M. refused the medication(s).  According to F.M.=s medical records, she was refusing
30 m.g. dosages of a drug, trade name Abilify, for very specific reasons
concerning possible side effects.  One
note indicated that she would accept a different drug, trade name Seroquel, and
the plan was to Atitrate Seroquel up@ if she continued to refuse
Abilify.  There was no further indication
as to whether the treatment plan was carried out or whether she was given the
option to switch to Seroquel or to a lower dosage of Abilify. 




During the hearing, Dr. O=Boyle testified that when he asked
F.M. about taking Abilify, F.M. became angry and said the medication caused her
cancer, causes her to drink alcohol and caffeine, and Ajust makes things worse.@ 
F.M.=s medical records also reflect her
concern that Abilify played a role in causing her cancer.  However, the record contains no reference to
carcinogenicity studies concerning the medication.  Nor is there any indication as to whether
F.M. was attempting to use alcohol and caffeine as self-help mechanisms to
combat other side effects of the drug. 
The record does not reflect any inquiry into the reasons behind F.M.=s statements, and there is no
evidence to discredit her explanation.
Dr. O=Boyle also testified at the hearing that F.M. was Apretty consistently refusing
medications.@ 
However, it is not clear whether Dr. O=Boyle was testifying that F.M. was
refusing to take all of her medications, or whether he was specifically
referring to her refusal to take Abilify. 
F.M.=s 
medical records indicate that she was accepting medications to help her
sleep and for pain and anxiety.  Further,
while the record reflects that F.M. had become delusional, there is no
indication that her delusions were related to or had an effect on her reasons
for refusing medical treatment.  See
Protection of S.E.W., Nos. 14-02-00602-CV, 14-02-00603-CV, 2002 WL
31599910, at *3 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (not designated for
publication) (holding evidence sufficient to support commitment order under
third criterion when appellant refused medicine because she was convinced her
medicine was poisonous and caused bladder infections, but repeated tests
revealed no physical evidence of appellant=s perceived infections and appellant
was found wandering in a church). 
According to F.M.=s medical records, she complained that Abilify caused
insomnia, gave her nightmares, made her angry, caused muscle cramps in her left
calf,  and caused her to wet the bed
and  make involuntary visits to the
toilet with urine running down her legs. 
However, the record does not indicate whether insomnia, muscle cramps,
hostility, urinary incontinence, or any other adverse events complained of were
known to be side-effects of Abilify.  Nor
is there any indication as to whether F.M. was actually suffering from these
side-effects, or whether the side-effects were paranoid figments of imagination
brought on by her mental illness. 




The significance of a refusal to accept, not only psychiatric
medication, but any other kind of medication or medical procedure, cannot be
assessed in the absence of expert opinion concerning recommended treatment, risks,
alternatives, and consequences.  With
respect to cancer treatment, Dr. O=Boyle testified that F.M. had a Ahistory of breast cancer,@ and that she complied with a biopsy,
but had recently refused to undergo a radiation treatment.  F.M.=s medical records indicate that the
results of that biopsy were negative. 
F.M. also testified at the hearing and responded to questions about her
refusal to receive radiation treatment. 
She said that according to her nurse, she needed to take calcium for her
cancer.  She also stated her initial
reason for refusing the radiation treatment was that it would cause Aso much fatigue.@ 
Her further explanation was rambling and incoherent, but she concluded
that she A[felt] fine about it.@ 
An entry in her medical records on the day before the hearing notes that
she Ainitially refused then later agreed
to go to radiation oncology for breast radiation and went running down the
hallway to catch transportation personnel.@  

The refusal of one radiation treatment is not, without more,
indicative of an irrational decision. F.M. might have needed more time to
assess her treatment options, or as her testimony suggests, she might simply
have not felt well enough to submit to an exhausting treatment procedure that
particular day.  F.M. also testified that
her nurse had told her that she needed to take calcium.  However, F.M.=s nurse did not testify at the
commitment hearing, nor was there testimony from F.M.=s oncologist or other treating
physician.  We therefore do not know if
F.M. misinterpreted dietary advice, or was, in fact, informed by a nurse of
legitimate studies suggesting that calcium might be effective in the prevention
or treatment of breast cancer.
We do not find enough information in this record for a fact
finder to evaluate whether F.M. was able to make treatment decisions on a
rational basis.  If her refusal of
psychiatric medication and a radiation treatment alone were overt acts
sufficient to meet the clear and convincing standard under the first criterion,
the strict requirements of the third criterion concerning the proposed patient=s ability to function and make a
rational treatment decision would be undermined. 




Although psychiatric treatment has advanced significantly
from the days of the lobotomy, there is still much art and guesswork
involved.  See, e.g., Addington v.
Texas, 441 U.S. 418, 430 (1979) (noting that psychiatric diagnosis is Ato a large extent based on medical Aimpressions drawn from subjective
analysis and filtered through the experience of the diagnostician@); O=Connor, 422 U.S. at 584 (Burger, J.,
concurring) (noting that Adespite many recent advances in medical knowledge, it remains
a stubborn fact that there are many forms of mental illness which are not
understood . . .@).  The inherent
uncertainties in diagnosis as well as the severe side-effects and sometimes
questionable efficacy of psychoactive medication have been judicially
recognized.  See Washington v. Harper,
494 U.S. 210, 229B30 (1990) (noting that the purpose of antipsychotic drugs is Ato alter the chemical balance in a
patient=s brain@ but Athe drugs can have serious, even
fatal, side effects.@); see also Addington, 441 U.S. at 429B30; Moss, 539 S.W.2d at 950B51. 
There is Aa significant liberty interest in avoiding the unwanted
administration of antipsychotic drugs under the Due Process Clause of the
Fourteenth Amendment.@  Harper, 494
U.S. at 220.  In fact, the Aforcible injection@ of any medication Ainto a nonconsenting person=s body represents a substantial
interference with that person=s liberty.@  Riggins v. Nevada,
504 U.S. 127, 134B35 (1992) (citing Harper, 494 U.S. at 229).  We hold that the mere assertion of a person=s liberty interest in refusing
medication or other medical treatment cannot be considered an overt act
sufficient to meet the clear and convincing standard for involuntary
commitment.
2.  AMood Ability@




During the hearing, Dr. O=Boyle testified that he had noticed
F.M.=s Amood ability.@ 
He said that she could get Avery angry very quickly,@ and although she had never struck
him, she had been Ain his face@ a few times and he felt it wise to back off.  The State argues that Dr. O=Boyle=s testimony as to F.M.=s Amood ability@ is evidence of an overt act
sufficient to meet the clear and convincing standard.  We disagree. 
Dr. O=Boyle=s testimony described a general trait
or disposition, and not a specific overt act or pattern of behavior.  Although he said that F.M. had been Ain my face a few times,@ he did not provide any further
factual elaboration as to the dates, times, and circumstances surrounding such
incidents.  Even if there was evidence of
a specific overt act or pattern of behavior showing violence or hostility
toward a third person, that evidence would tend to show that F.M. was a danger
to others, not herself.  See J.M.,
2005 WL 1606931, at *7 (holding that aggressive behavior toward family did not
tend to confirm the likelihood that the proposed patient would cause serious
harm to herself); but see Taylor v. State, 671 S.W.2d 535, 538 (Tex.
App.CHouston [1st Dist.] 1983, no writ)
(holding that evidence of provocative and hostile behavior toward family and
third parties Acould foreseeably result in someone
acting in a more violent manner toward appellant in the future@). 
The recent overt act or continuing pattern of behavior proven by the
State must be related to the criterion supporting the trial court=s judgment.  J.M., 2005 WL 1606931, at
*7.  Here, Dr.O=Boyle testified he did not believe
that F.M. was a danger to others, and the trial court did not find that F.M.
posed a danger to others as a basis for commitment.  To the extent that hostile and provocative
behavior may foreseeably result in an increased risk of retaliation by a third
party, this potential risk alone is not legally sufficient to show that F.M. is
likely to cause serious harm to herself. 
Because we find no evidence of an overt act tending to
confirm that F.M. was likely to cause serious harm to herself, the evidence is
legally insufficient to support a commitment order under the first criterion of
the Texas Health and Safety Code.  
B.        Inability to
Function
Alternatively, the State argues that the evidence was
sufficient to meet the third criterion for commitment: severe distress and
substantial deterioration in ability to function.  See Tex.
Health & Safety Code Ann. ' 574.034(a)(2)(C).  The State, tracking the language of the Texas
Health and Safety Code, asked Dr. O=Boyle: (1) whether F.M. was Asuffering severe and abnormal mental,
emotional or physical distress@; (2) whether she was Aalso experiencing substantial mental
or physical deterioration of her ability to function independently@; (3) whether that deterioration was Aexhibited by her inability except for
any reasons of indigence to provide for her basic needs like food, clothing,
health or safety@; and (4) whether she Awas able at all times to make a
rational and informed decision about whether or not to submit to treatment.@ 
Dr. Boyle answered, Ayes@ to the first three questions, and Ano@ to the fourth.  With respect to acts or patterns of behavior
tending to confirm F.M.=s Adistress and deterioration and inability to function,@ Dr. O=Boyle referred to her refusal to take
Abilify. 




Expert opinions recommending involuntary commitment must be
supported by a showing of the factual basis on which they are grounded.  In re J.S.C, 812 S.W.2d 92, 95 (Tex.
App.CSan Antonio 1991, no writ).  It is not enough to merely recite the
statutory criteria, but the expert should describe the specific behavior of the
proposed patient which forms the basis for his or her opinion.  J.M., 2005 WL 1606931, at *7; Broussard
v. State, 827 S.W.2d 619, 622 (Tex. App.CCorpus Christi 1992, no writ); Moss,
539 S.W.2d at 950.  As discussed above,
because the significance of refusal to take medication cannot be logically
separated from an expert=s bare opinion regarding diagnosis and recommended treatment,
the mere refusal to take medication is not an overt act or continuing pattern
of behavior sufficient to support a finding of clear and convincing
evidence.  There must be a further
showing, by expert testimony or other evidence, that the refusal Atends to confirm@ the relevant criterion for
commitment.  Absent this showing, we
conclude that F.M.=s refusal to take medication is not evidence of an overt act
or continuing pattern of behavior sufficient to support commitment under the
third criterion.  
The State also points to notes contained in F.M.=s medical records wherein  a member of the staff reports that F.M. had Atoo much interference from family and
friends,@ did not want staff Ato talk about her to anyone,@ and had yelled at her ex-husband
over the phone and told him not to call her again.  The State argues that there is a continuing
pattern of behavior demonstrating F.M.=s inability to provide her own
shelter because F.M. refuses contact with family members on whom she would rely
to place her in an apartment.  However,
the State=s mere speculation that F.M. will not
be able to provide her own shelter because she yelled at her ex-husband and
thought her family and friends were interfering too much is not sufficient to
meet the clear and convincing standard for involuntary commitment.




Not only is there no evidence of an overt act or continuing
pattern of behavior to support the third criterion for commitment, but there is
also no evidence of a Asubstantial deterioration@ in F.M.=s Aability to function independently.@  See Tex.
Health & Safety Code Ann. _ 574.034(a)(2)(C)(ii).  No testimony was introduced at the commitment
hearing with respect to F.M.=s ability to function on a day-to-day basis.  Notes in F.M.=s medical records to this effect
indicate that she maintained positive oral hygiene and Adressed appropriately,@ although a note on one occasion
indicated that she appeared Amildly disheveled.@ 
In fact, the only evidence suggesting that F.M. was impeded in everyday
functioning is from F.M.=s own complaints regarding, for example, the insomnia and
urinary incontinence caused by her medication.
Finally, the State relies on evidence of F.M.=s delusional thoughts about talking
with ghosts, working for President Bush, and building a bed and breakfast.  However, this evidence of delusional behavior
merely confirms that F.M. is mentally ill. 
It does not rise to the level of an overt act or continuing pattern of
behavior necessary to support a commitment order.  See T.G. v. State, 7 S.W.3d 248, 250B52 (Tex. App.CDallas 1999, no pet.) (holding
evidence of patient=s delusion that she was in military and mail carrier was
responsible for her welfare not sufficient to support commitment order);
Broussard, 827 S.W.2d at 622 (holding evidence of patient=s six or seven prior
hospitalizations, psychotic and hostile behavior, and repeated refusals to take
medication insufficient to support commitment order).
We find no evidence of a recent overt act or continuing
pattern of behavior tending to confirm F.M.=s distress and deterioration in
ability to function.  Further, as
discussed above, there is no evidence to support the findings that F.M. was
unable to provide for her basic needs and unable to make a rational and
informed decision as to whether to submit to medical treatment.  Accordingly, we hold the evidence legally
insufficient to support an order for involuntary commitment under the third
criterion of the Texas Health and Safety Code.




IV. 
Order to Administer Psychoactive Medication
F.M. also contends that the evidence is legally insufficient
to support the trial court=s order to administer psychoactive medication.  A trial court may issue an order authorizing
the administration of psychoactive medication only if the proposed patient is
under a valid order for temporary or involuntary mental health services.  Tex.
Health & Safety Code Ann. ' 574.106(a)(1).  Because we find the evidence legally
insufficient to support the trial court=s order of temporary commitment, we
also find the evidence legally insufficient to support the order to administer
psychoactive medications.  See K.T. v.
State, 68 S.W.3d 887, 894 (Tex. App.CHouston [1st Dist.] 2002, no pet.).
We sustain appellant=s first and third issues.[6]
We reverse the Order For Temporary Inpatient Mental Health
Services and the Order to Administer Psychoactive Medication, and we render
judgment denying the State=s applications to commit F.M. for court-ordered temporary
mental health services and to administer psychoactive medications.  
 
/s/        Charles W. Seymore
Justice
 
Judgment rendered
and Majority and Dissenting Opinions filed December 22, 2005.
Panel consists of Justices Edelman, Seymore, and
Guzman.  (Edelman, J., dissenting.)
(Guzman, J., concurs in result only without an
opinion.)
 
 
 




[1]  Although the
ninety-day period has expired, F.M.=s challenge
to the sufficiency of the evidence to support her commitment is not moot.  See Johnstone v. State, 22 S.W.3d 408,
409 n.1 (Tex. 2000) (per curiam).


[2]  Although Dr. O=Boyle testified that his main concern was F.M.=s refusal to submit to a radiation treatment, on
cross-examination, he testified that he did not know if Austin State Hospital
had the capabilities to provide F.M. with radiation treatment.  Thus, it is not clear why Dr. O=Boyle changed his commitment recommendation to the
Austin State Hospital where F.M. might not have had any opportunity for the
treatment. 


[3]  The First
Court of Appeals in Houston, and the San Antonio, Corpus Christi and Tyler
Courts of Appeals have held that refusal to take medication is not an overt act
or continuing pattern of behavior sufficient to meet the clear and convincing
standard under the Texas Health and Safety Code.  See J.M. v. State, Nos.
01-05-00146-CV, 01-05-00147-CV, __ S.W.3d __, 2005 WL 1606931, at *7 (Tex. App.CHouston [1st Dist.] July 7, 2005, no pet. h.) (holding
that the refusal to take medication is not evidence of an overt act or
continuing pattern of behavior); In re Breeden,  4 S.W.3d 782, 789B90 (Tex. App.CSan
Antonio 1999, no pet.) (finding refusal to take psychiatric medication was not
evidence of an overt act under the third criterion, but not addressing whether
the refusal to take medication was evidence of an overt act under the first
criterion); Broussard v. State, 827 S.W.2d 619, 622 (Tex. App.CCorpus Christi 1992, no writ) (finding repeated
refusal to take psychiatric medication was evidence that patient could not make
a rational and informed decision regarding treatment, but was not evidence
showing an overt act or continuing pattern of behavior); In re B.S., No.
12-02-00217-CV, 2003 WL 21260028, at *5 (Tex. App.CTyler 2003, no pet.) (not designated for publication)
(finding patient=s refusal to take medication for hypertension was not
an overt act as contemplated by the Texas Health and Safety Code).
 
The Amarillo and Dallas Courts of Appeals have
discussed the refusal to take medication in the context of the third criterion
of commitment, but have not specified whether the refusal could be considered
evidence of an overt act or continuing pattern of behavior.  See In re K.D.C., 78 S.W.3d 543, 550
(Tex. App.CAmarillo 2002, no pet.) (finding no evidence of an
overt act when patient refused medication out of a concern she was pregnant
despite the fact that patient knew she previously had a hysterectomy); D.J.
v. State, 59 S.W.3d 352, 356 (Tex. App.CDallas
2001, no pet.) (finding no evidence of an overt act when evidence concerning
patient=s refusal to take medication was Aconfused at best@).
 
The Fort Worth Court of Appeals has found
that refusal to take medication is evidence that Aas a
whole, >tends to confirm= the
likelihood of serious harm . . . as well as the deterioration of his [the
proposed patient=s] ability to function,@ but has
not held that the refusal to take medication is an overt act or continuing
pattern of behavior.  Roland v. State,
989 S.W.2d 797, 802 (Tex. App.CFort Worth 1999, no pet.); see Matter of R.S.C.,
921 S.W.2d 506, 509B12 (Tex. App.CFort
Worth 1996, no writ) (holding that the Atotality
of the evidence@ regarding a patient=s
bizarre delusional system tended to confirm the proposed patient=s likelihood to cause serious harm and tended to
confirm the proposed patient=s distress, inability to function, and inability to
make a rational treatment decision).


[4]  Two
certificates of mental examination for mental illness are required to support
an application for court-ordered mental health services.  Tex.
Health & Safety Code Ann. '
574.009(a) (Vernon 2003).  In this case,
certificates were filed by Drs. James Given and Michael O=Boyle of UTMB. 
Both cited the patient=s irritability and refusal to take medication as the
basis for commitment.   


[5]  When Johnson
was decided in 1985, the third criterion for commitment under the Texas
Mental Health Code required proof that a person Awill, if
not treated, continue to suffer severe and abnormal mental, emotional, or
physical distress and will continue to experience deterioration of his ability
to function independently and is unable to make a rational and informed
decision as to whether or not to submit to treatment.@  Johnson,
693 S.W.2d at 562 (citing Tex. Rev. Civ.
Stat. Ann art. 5547-1 et seq. (Vernon Supp. 1985)).  The most recent revisions in 1997 included
the additional requirement that the deterioration of the proposed patient=s ability to function must be exhibited by an Ainability, except for reasons of indigence, to provide
for the proposed patient=s basic needs, including food, clothing, health or
safety.@  Tex. H.B. 1039,
75th Leg., R.S. (1997).  The House
Committee on Public Health described the background for the 1997 revisions as
follows:
 
In 1983, the Texas Mental Health Code was rewritten to
set up a mental illness commitment standard that required one of three
alternative grounds as basis for the imposition of courtordered (sic) mental
health services.  To order commitment, a
mental health court has to find, by clear and convincing evidence, that a
mentally ill person is likely to cause serious harm to self or others or must
be in such a deteriorated condition as to be considered Adangerous.@  The lack of guidelines for the court when
requiring out-patient services and lack of clarity as to the meaning of the
language in the deterioration may allow in-patient commitment of mentally ill
persons who are not dangerous.  Thus, the
current commitment procedure structure has been criticized for causing persons
to be placed into in-patient settings when out-patient treatment would be more
appropriate.  
 
House Comm. on Public Health, Bill Analysis,
Tex. H.B. 1039, 75th Leg., R.S. (1997).


[6]  In light of
our holding, it is unnecessary to address appellant=s second issue regarding factual insufficiency.  


