                                                                         ACCEPTED
                                                                      14-15-00362-cv
                                                     FOURTEENTH COURT OF APPEALS
                                                                  HOUSTON, TEXAS
                                                                5/21/2015 6:27:43 PM
                                                               CHRISTOPHER PRINE
                                                                              CLERK




                                                   FILED IN
                                            14th COURT OF APPEALS
                                               HOUSTON, TEXAS
                                            5/21/2015 6:27:43 PM
               NO. 14-15-00362-CV           CHRISTOPHER A. PRINE
                                                     Clerk

         IN THE COURT OF APPEALS
       FOURTEENTH JUDICIAL DISTRICT
             HOUSTON, TEXAS



           THE STATE OF TEXAS FOR
THE BEST INTEREST OF AND PROTECTION OF E.E.C.




 On Appeal from the County Court at Law Number Two
              of Fort Bend County, Texas
          Trial Court No. 15-CMH-002800



    BRIEF OF APPELLANT EDWARD E. COLE



                            MICHAEL KLOSOWSKY
                            ATTORNEY FOR APPELLANT
                            State Bar No. 24078796
                            14015 Southwest Freeway, Suite 14
                            Sugar Land, Texas 77478
                            (281) 277 – 8998
                            (281) 491 – 4707 Fax
                            Email: mklosowsky@gmail.com
                           IDENTITY OF THE PARTIES

      As required by Rule 38.1(a) of the Texas Rules of Appellate Procedure, the

undersigned counsel of record certifies that the following listed persons have an

interest in the outcome of this case.

 A. Parties:

      Appellant/Patient:         EDWARD E. COLE

      Appellee:                  THE STATE OF TEXAS

 B. Attorneys:

      For Appellant:             MICHAEL KLOSOWSKY
                                 KLOSOWSKY LAW OFFICES
                                 14015 SOUTHWEST FREEWAY, SUITE 14
                                 SUGAR LAND, TEXAS 77478

      For Appellee:              FORT BEND COUNTY ATTORNEY
                                 TRIAL ATTORNEY: MICHELLE RANGEL
                                 401 JACKSON ST. 3RD FLOOR
                                 RICHMOND, TEXAS 77469




                                                                          Page 2
                           TABLE OF CONTENTS

IDENTITY OF THE PARTIES ………………………………………….                                2
TABLE OF CONTENTS …………………………………………………                                    3
INDEX OF AUTHORITIES ……………………………………………..                                 4
STATEMENT OF THE CASE …………………………………………..                                 6
ISSUE PRESENTED FOR REVIEW ……………………………………                                6
RELEVANT FACTS ……………………………………………………..                                    6
SUMMARY OF THE ARGUMENT …………………………………….                                  7
ARGUMENT AND AUTHORITIES …………………………………….                                 8
Statement on Jurisdiction ………………………………………………..                           8
    A. An appeal of the Trial Court’s order was properly brought …….     8
    B. The issue presented for review is not moot ……….……………… 9
Standard of Review: Abuse of Discretion ………………………………                     9
  A. The Trial Court exceeded its authority by committing the
    Patient to a private facility…………………………………………                        10
    I. The Statute requires that two specific documents must be
      received by the Court before it may designate a private
      facility in an order for commitment ……………………...………. 10
    II. The record does not contain evidence of the required documents... 11
  B. The error made by the Trial Court is reversible…………………….. 14
    I. The issue on appeal was properly preserved at trial ……………… 14
    II. The wrongful designation of a private facility resulted in an
        improper judgment ………………………………………………. 15
PRAYER …………………………………………………………………… 18
CERTIFICATIONS ………………………………………………………… 19
APPELLANT’S APPENDIX ………………………………………………. 20


                                                                         Page 3
                                  INDEX OF AUTHORITIES

Cases

Gen. Agents Ins. Co. of Am., Inc. v. El Naggar, 340 S.W.3d 552
      (Tex.App.–Houston [14th Dist.] 2011, pet. denied) ...............................              15

I.M. Werner v. Colwell, 909 S.W.2d 866 (Tex. 1995) ......................................            17

In re Green Oaks Hosp. Subsidiary, L.P., 297 S.W.3d 452
       (Tex.App.–Dallas 2009, orig. proceeding) .............................................        17

In the Interest of N.L.D., 344 S.W.3d 33
       (Tex.App.–Texarkana 2011, no pet.) ......................................................     10

Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931
     (Tex.App.–Austin 1987, no writ) ............................................................    10

Marathon Corp. v. Pitzner, 106 S.W.3d 724 (Tex. 2003) ................................               12

McCrimmon v. Taylor, No. 01-08-00644-CV, 2009 WL 417278
     (Tex.App.–Houston [1st Dist.] 2009, mem.op.) .....................................              13

Parks v. U.S. Home Corp., 652 S.W.2d 479
      (Tex.App.–Houston [1st Dist.] 1983, writ dism’d) .............................                 10

Saldarriaga v. Saldarriaga, 121 S.W.3d 493, 499
      (Tex.App.–Austin 2003, no pet.) ............................................................   13

Salinas v. Rafati, 948 S.W.2d 286 (Tex. 1997) ................................................       15

Sims v. State, 816 S.W.2d 502
      (Tex.App.–Houston [1st Dist.] 1991, writ denied) ................................              9

State v. Lodge, 608 S.W.2d 910 (Tex. 1980) …………………………………                                             9



                                                                                                 Page 4
                   INDEX OF AUTHORITIES CONTINUED

Statutes and Other Authorities

Tex. Att’y Gen. Op. GA-0757, 2010 WL 381365 ………..…………………                 11

Tex. Health & Safety Code § 552.013 ……………………………………….                     16

Tex. Health & Safety Code § 574.041 ……………………………………….                     10

Tex. Health & Safety Code § 574.042 ……………………………………….                     11

Tex. Health & Safety Code § 574.070 ……………………………………….                     8

Tex. R. App. P. 33.1 …………………………………………………………..                            14

Tex. R. App. P. 44.1 ………………………………………………………….                             15


      The reference RR is to the Reporter’s Record filed May 4, 2015. The

reference CR is to the Clerk’s Record filed April 24, 2015. The reference CR

Supp. is to the Clerk’s Record filed May 7, 2015.




                                                                     Page 5
                           STATEMENT OF THE CASE

         An application for court-ordered temporary mental health services was

brought against the Patient. CR 6. At the conclusion of a nonjury hearing on that

application, the Trial Court found the Patient is mentally ill and satisfies the

criteria for inpatient mental health treatment. CR 32. The Court issued its Order

for Temporary In-Patient Mental Health Services, designating a private mental

hospital as the location of the Patient’s temporary commitment. CR 33. The

Patient appeals this designation. CR 38.

                        ISSUE PRESENTED FOR REVIEW

         Whether the Trial Court erred in designating Oakbend Medical Center,

Senior Care Unit, as the facility for commitment in an order for temporary in-

patient mental health services when neither an application signed by the patient

nor a written agreement from the hospital administrator had been received by the

Court.

                               RELEVANT FACTS

         The Patient, Edward E. Cole, was examined for mental illness by Dr. Owen

Capocyan on April 3, 2015. CR 8. Subsequently on April 6, 2015, an Application

for Court-Ordered Temporary Mental Health Services for the Patient, signed by

Rebecca Johnson, was filed with the Fort Bend County Clerk. CR 6. Rebecca
                                                                          Page 6
Johnson is the daughter of the Patient. RR 9. A hearing on the application was

held April 13, 2015. RR 1.

       At the hearing, Johnson testified in support of the application. RR 9-18. Dr.

Matthew Brams, who had examined the Patient, also testified in support of the

application. RR 19-28. Additionally, Nora Law, a social worker familiar with the

Patient, testified in support of the application. RR 28-33. Through testimony of the

witnesses, the State proved the required elements for an involuntary commitment.

However, after the close of the State’s case, Attorney ad Litem for the Patient

moved for judgment denying the application on the basis that the documents

required by statute for commitment to a private facility had not been received by

the Court. RR 34; CR Supp. 6-9. The Court granted the application and issued the

Order the subject of this appeal.1 RR 36.

                           SUMMARY OF THE ARGUMENT

       In an order for temporary inpatient mental health services, a court is given

discretion in designating the facility to which the patient is committed. If

designating a private mental hospital, the statute requires that two specific

documents be received by the court. In this case, the Order committing the Patient


1
  After issuing its Order for Temporary In-Patient Mental Health Services, the Trial Court granted
a Motion for Judgment Nunc Pro Tunc. The amended portion of the order does not affect the
issue presented for appeal.
                                                                                          Page 7
to temporary inpatient mental health services designates a private mental hospital,

but neither of the required documents were received. This error resulted in an

improper judgment against both the Patient and a nonparty and should be reversed.

                       ARGUMENT AND AUTHORITIES

      Appellant would show that the trial court’s designation of treatment facility

in the Order for Temporary In-Patient Mental Health Services be reversed for the

following reasons:

Statement on Jurisdiction

      This Court has jurisdiction to review this case.

 A. An appeal of the Trial Court’s order was properly brought.

      This is an accelerated appeal from an Order for Temporary In-Patient

Mental Health Services. Section 574.070 of the Texas Mental Health Code

provides the statutory basis for appeals from these orders. The statute requires that

the appeal be filed in the court of appeals for the county in which the order is

entered, and that notice of appeal be filed not later than the 10th day after the date

on which the order is signed. The Fourteenth Court of Appeals is a court of

appeals for Fort Bend County, the county where the order was entered on April 13,

2015. CR 23. A Motion for Judgment Nunc Pro Tunc was granted and the order

amended on April 15, 2015. CR 31. Notice of appeal was filed on April 23, 2015,
                                                                               Page 8
within the ten days allowed by law. Therefore, this Court has statutory jurisdiction

to hear the appeal from the Order for Temporary In-Patient Mental Health

Services.

 B. The issue presented for review is not moot.

      The Patient has already received mental health treatment at Oak Bend

Medical Center, Senior Care Unit, pursuant to the Order for Temporary In-Patient

Mental Health Services. By the time this Court takes action on appeal, the Patient

will have completed treatment and will have been discharged from the facility.

Even in that situation, this case is not moot because the “collateral consequences”

exception to the doctrine of mootness applies to orders for temporary mental

health services. State v. Lodge, 608 S.W.2d 910, 912 (Tex. 1980).

ISSUE 1: Whether the Trial Court erred in designating Oakbend Medical
Center, Senior Care Unit, as the facility for commitment in an order for
temporary in-patient mental health services when neither an application
signed by the patient nor a written agreement from the hospital administrator
had been received by the Court.

Standard of Review: Abuse of Discretion

      A trial court’s decision regarding treatment is reviewed under an abuse of

discretion standard. Sims v. State, 816 S.W.2d 502, 508 (Tex.App.–Houston [1st

Dist.] 1991, writ denied). A trial court commits an abuse of discretion if it makes

an erroneous choice as a matter of law by arriving at its decision in violation of an
                                                                              Page 9
applicable statutory, procedural, or common law rule. Landon v. Jean-Paul

Budinger, Inc., 724 S.W.2d 931, 939 (Tex.App.–Austin 1987, no writ); In the

Interest of N.L.D., 344 S.W.3d 33, 39 (Tex.App.–Texarkana 2011, no pet.). In

determining whether there has been an abuse of discretion, evidence is viewed in

the light most favorable to the action of the trial court. Parks v. U.S. Home Corp.,

652 S.W.2d 479, 485 (Tex.App.–Houston [1st Dist.] 1983, writ dism’d).

A. The Trial Court exceeded its authority by committing the Patient to a private
facility.

      The designation of Oakbend Medical Center, Senior Care Unit, as the

facility of care for the Patient was wrong because the conditions required by law to

designate a private facility have not been met.

     I. The Statute requires that two specific documents must be received by the
        Court before it may designate a private facility in an order for commitment.

   Orders for involuntary mental health services issued pursuant to Chapter 574 of

the Texas Mental Health Code are subject to the statutory requirements of the

entire chapter, including Subchapter D: Designation of Facility and Transportation

of Patient. Section 574.041 requires the court to commit a patient to a designated

inpatient facility. The court may choose from: “(1) a mental health facility deemed

suitable by the local mental health authority for the area; (2) a private mental

hospital under Section 574.042; (3) a hospital operated by a federal agency under
                                                                            Page 10
Section 574.043; or (4) an inpatient mental health facility of the Texas Department

of Criminal Justice under Section 574.044.” Section 574.042 allows the court to

commit a patient to a private facility if two required documents are first received:

“(1) an application signed by the patient or the patient's guardian or next friend

requesting that the patient be placed in a designated private mental hospital at the

patient's or applicant's expense; and (2) written agreement from the hospital

administrator of the private mental hospital to admit the patient and to accept

responsibility for the patient in accordance with [the Texas Mental Health Code].”

Section 574.042 is applicable to the Order the subject of this appeal because

Oakbend Medical Center, Senior Care Unit (Oakbend), is a private facility “that is

operated by an agency or institution that is not affiliated with any governmental

body.”2 Tex. Att’y Gen. Op. GA-0757, 2010 WL 381365 at *2.

      II. The record does not contain evidence of the required documents.

       Despite the statutory requirement, neither of these documents were

presented to the Trial Court and they do not appear in the record. A no evidence

point of error is sustained when “the record discloses a complete absence of


2
 At trial, witness Nora Law testified that she could not confirm if Oakbend is a private facility
because she did not know. RR 33. However, Appellant would show the Court that if Oakbend is
not a private facility, then the hearing on the application would have been held in violation of
Section 574.012(d), which requires a recommendation for treatment to be on file with the court
unless treatment in a private facility is sought, and the Order would be void.
                                                                                         Page 11
evidence of a vital fact.” Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.

2003).

      First, no agreement was made by the hospital administrator of Oakbend to

admit the Patient and take responsibility for him. The Clerk’s Record contains no

document that could be construed as a written agreement from the hospital

administrator. This requirement was completely ignored by the Trial Court.

      Second, as a matter of law, the Application cannot satisfy the first

requirement of Section 574.042. The Application for Court-Ordered Temporary

Mental Health Services, signed by Rebecca Johnson, could potentially be read as

an attempt to satisfy the first requirement. CR 6. Johnson is the daughter of the

Patient and is designated as his attorney-in-fact in a power of attorney executed by

the Proposed Patient. RR 4. This is the only application for treatment received by

the Trial Court, and no other document could be reasonably construed to be an

application for treatment. However, this application cannot satisfy the statutory

requirements that it be signed by the patient or patient’s guardian or next friend

and request placement in a private mental hospital at the patient’s or applicant’s

expense.

      For one thing, although Applicant is a close family member and agent of the

Proposed Patient, she cannot be considered his guardian or next friend because she
                                                                           Page 12
has never been appointed as such by a court. A person cannot appoint himself as

an individual’s next friend. McCrimmon v. Taylor, No. 01-08-00644-CV, 2009

WL 417278 (Tex.App.–Houston [1st Dist.] 2009, mem.op.). In appointing a next

friend to another adult, courts must follow the same procedure for the appointment

of a guardian. Saldarriaga v. Saldarriaga, 121 S.W.3d 493, 499 (Tex.App.–Austin

2003, no pet.). The record does not contain any reference that the Patient had a

guardian or next friend appointed. Furthermore, although there was mention of a

power of attorney executed by the Patient that appointed his daughter as attorney-

in-fact to make medical and financial decisions, the Application was not submitted

on behalf of the Patient. Rather, the Applicant signed the Application in her

individual capacity alone for an involuntary commitment against the Patient.

      Additionally, the Applicant states that she “has been informed that for the

costs and attendant expenses actually paid, the County is entitled to reimbursement

by the Proposed Patient.” Even if the Court assumes that the Applicant is acting as

the Proposed Patient’s guardian or next friend, the statement of being informed of

the County’s entitlement to reimbursement does not rise to the level of a request

that the Proposed Patient be placed in a private facility at the Patient’s or the

Applicant’s expense.

      Section 574.042 is specific in stating the required documents necessary
                                                                           Page 13
before a patient may be committed to a private facility. In this case, neither of

those documents were received by the Trial Court. Therefore, the designation of

Oakbend Medical Center, Senior Care Unit for inpatient treatment exceeded the

discretion given to the Court by Section 574.041.

B. The error made by the Trial Court is reversible.

      The Trial Court’s error in wrongfully designating a private facility in an

order for mental health services can and should be reversed because the issue was

preserved at trial and the error resulted in an improper judgment.

     I. The issue on appeal was properly preserved at trial.

      Tex.R.App.P. 33.1 requires, as a prerequisite to appeal, that the complaint

be made to the trial court by a timely request, objection, or motion, and for the trial

court to make a ruling. The issue presented in this appeal was raised in the Motion

for Judgment asking the Trial Court to deny the Application because the

requirements of Section 574.042 had not been met and no other request for

designation of facility had been made. The motion was made at the conclusion of

the State’s case, which had the burden to prove all elements required for the

commitment. Although there was no order from the Trial Court specifically

denying that Motion, error may be preserved when the trial court rules on a motion

implicitly. See Tex.R.App.P. 33.1(a)(2)(A). “When parties present cross-motions
                                                                              Page 14
that are opposed and mutually exclusive, an order that grants one motion may

implicitly deny the other.” Gen. Agents Ins. Co. of Am., Inc. v. El Naggar, 340

S.W.3d 552, 557 (Tex.App.–Houston [14th Dist.] 2011, pet. denied); see Salinas

v. Rafati, 948 S.W.2d 286, 288 (Tex. 1997) (granting motion to disregard jury

findings automatically denied motion for judgment on those findings). In granting

the Application and signing the Order for Temporary In-Patient Mental Health

Services, the Trial Court implicitly denied the Motion for Judgment asking the

Court to deny the application because both could not be granted.

     II. The wrongful designation of a private facility resulted in an improper
         judgment.

       The issue being preserved, a reviewing court must also conclude that the

error complained of “probably caused the rendition of an improper judgment.”

Tex.R.App.P. 44.1(a). No court of review has discussed Section 574.042 or its

predecessor, Article 5547-59, Title 92, Texas Civil Statutes, and there is no case

law on whether an order should be reversed for failing to meet the requirements

under that section. Nevertheless, as a direct result of not observing the statutory

requirement, improper judgment was issued against both the Patient and the

private facility.

       The first requirement, that an application be signed by the patient requesting


                                                                            Page 15
treatment in a private facility at the patient’s expense, protects the patient’s

financial interests. In truth, a mental health patient is responsible for the costs of

his treatment regardless of the type of facility in which he is receiving that

treatment. In a public hospital, the state is responsible for the support,

maintenance, and treatment of patient, but is entitled to reimbursement of those

costs from a nonindigent patient. Tex. Health & Safety Code § 552.013. However,

it is one thing to require a patient to pay a public facility for care which has been

ordered for the protection of the patient and the safety of the public. It is a

different thing entirely to force a mentally ill person into a contract with a private

facility for treatment which the patient wishes to avoid.

      The second requirement, an agreement from the hospital administrator

accepting responsibility for the patient, protects the facility’s interests. Because

mental health patients are some of the most vulnerable members of society, the

Texas Mental Health Code promulgates a strict set of rules and regulations for

their care. Once a patient has been involuntarily committed for mental health

services, the facility providing care has many obligations, restrictions, and

responsibilities placed on it. The court has a continuing duty to a patient to

oversee his treatment (for example, Section 574.087, Texas Mental Health Code

requires a discharge certificate to be filed with the court once a patient is released).
                                                                               Page 16
Violations of the Texas Mental Health Code are punishable by criminal, civil, and

administrative penalties. Section 571.020-.026, Health & Safety Code. Being

designated as the facility where a patient is to receive court-ordered mental health

treatment subjects the facility to serious liability.

       By designating Oakbend Medical Center, Senior Care Unit, as the location

where the Patient is to receive his care, the Trial Court has obligated Oakbend to

take responsibility for the care and treatment of the Patient. However, Oakbend is

not a party to this proceeding, nor has it made an appearance.3 To make a binding

judgment against a hospital treating a mental health patient, a court must have

personal jurisdiction over it. In re Green Oaks Hosp. Subsidiary, L.P., 297 S.W.3d

452, 456-57 (Tex.App.–Dallas 2009, orig. proceeding) (finding that the hospital

which treated patients under orders for temporary in-patient mental health services

was not a party to any of the involuntary commitment proceedings and therefore

could not be ordered to pay for such proceedings). The written agreement from the

facility administrator, required by law to be received before a patient is committed,

would be an effective appearance by a private facility in a commitment


3
 Dr. Matthew Brams, treating physician of the Patient at Oakbend, and Nora Law, an employee,
both appeared at trial as witnesses for the State and testified that they were there on behalf of
Oakbend. However, that did not constitute an appearance, neither by Oakbend nor its
administrator, as a party to the proceeding. I.M. Werner v. Colwell, 909 S.W.2d 866, 870 (Tex.
1995) (participating as a witness does not constitute a general appearance.).
                                                                                         Page 17
proceeding, or, at the very least, the agreement would contractually obligate the

facility to treat the patient pursuant to the applicable laws. Because Oakbend has

not made an appearance in this proceeding, an order binding it to treat a patient

pursuant to the Texas Mental Health Code is improper.

      As a matter of both law and public policy, this Court should find that

designating a private facility in an order for inpatient mental health services

without first receiving the documents required by Section 574.042 constitutes

reversible error.

                                    PRAYER

      FOR THESE REASONS, Appellant respectfully prays that the Court

reverse the Trial Court’s designation of Oakbend Medical Center, Senior Care

Unit, as the facility for treatment in the Order for Temporary Inpatient Mental

Health Services and remand that part of the proceeding for further consideration.




                                                                           Page 18
                      CERTIFICATION OF COMPLIANCE

      I certify that the text of this brief contains 3,487 words.

                           CERTIFICATE OF SERVICE

      I certify that on May 21, 2015, this document was served electronically

through the electronic filing manager on:

Fort Bend County Attorney               via Michelle.Rangel@fortbendcountytx.gov
representing the State of Texas
401 Jackson Street, 3rd Floor
Richmond, Texas 77469
                                               /s/ Michael Klosowsky
                                              MICHAEL KLOSOWSKY
                                              ATTORNEY FOR APPELLANT
                                              State Bar No. 24078796
                                              14015 Southwest Freeway, Suite 14
                                              Sugar Land, Texas 77478
                                              (281) 277 – 8998
                                              (281) 491 – 4707 Fax
                                              Email: mklosowsky@gmail.com




                                                                         Page 19
                  APPELLANT’S APPENDIX

ORDER FOR TEMPORARY INPATIENT
    MENTAL HEALTH SERVICES …………………………….............. … 21


Tex. Health & Safety Code § 574.041 ……………….………………………    23

Tex. Health & Safety Code § 574.042 ………………………………………... 23




                                                    Page 20
32
33
Texas Statutes
Health and Safety Code
Title 7. Mental Health And Intellectual Disability
Subtitle C. Texas Mental Health Code
Chapter 574. Court-Ordered Mental Health Services
Subchapter D. Designation Of Facility And Transportation Of Patient
§ 574.041. Designation Of Facility
(a) In an order for temporary or extended mental health services specifying
    inpatient care, the court shall commit the patient to a designated inpatient
    mental health facility. The court shall commit the patient to:
     (1) a mental health facility deemed suitable by the local mental health
         authority for the area;

     (2) a private mental hospital under Section 574.042;
     (3) a hospital operated by a federal agency under Section 574.043; or

     (4) an inpatient mental health facility of the Texas Department of
         Criminal Justice under Section 574.044.

(b) On request of the local mental health authority, the judge may commit the
    patient directly to an inpatient mental health facility operated by the
    department.
(c) A court may not commit a patient to an inpatient mental health facility
    operated by a community center or other entity designated by the
    department to provide mental health services unless the facility is licensed
    under Chapter 577 and the court notifies the local mental health authority
    serving the region in which the commitment is made.

§ 574.042. Commitment To Private Facility
The court may order a patient committed to a private mental hospital at no
expense to the state if the court receives:
(1) an application signed by the patient or the patient's guardian or next friend
    requesting that the patient be placed in a designated private mental hospital
    at the patient's or applicant's expense; and

(2) written agreement from the hospital administrator of the private mental
    hospital to admit the patient and to accept responsibility for the patient in
    accordance with this subtitle.
