                                  NO. 12-14-00246-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

THE STATE OF TEXAS FOR THE                       §       APPEAL FROM THE

BEST INTEREST AND PROTECTION                     §       COUNTY COURT AT LAW

OF S. E.                                         §       CHEROKEE COUNTY, TEXAS

                                  MEMORANDUM OPINION
       S.E. appeals from an order for temporary inpatient mental health services, and an order
authorizing the Texas Department of State Health Services (the Department) to administer
psychoactive medication.     In two issues, S.E. asserts the evidence is legally and factually
insufficient to support the trial court’s orders. We reverse and render.


                                          BACKGROUND
       An application for court ordered temporary mental health services was filed requesting
the trial court to commit S.E. to the Rusk State Hospital (the Hospital) for a period not to exceed
ninety days. At the time the application was filed, S.E. was a patient at the Hospital. The
application was supported by two physician’s certificates of medical examination for mental
illness. The first certificate stated that Robert Bouchat, M.D. examined and evaluated S.E. and
diagnosed her with bipolar disorder. The second certificate stated that R.H. Rodriguez, M.D.
examined and evaluated S.E. and diagnosed her with bipolar two disorder, mixed type.
       According to Dr. Bouchat and Dr. Rodriguez, S.E. was mentally ill, and was suffering
severe and abnormal mental, emotional, or physical distress; was experiencing substantial mental
or physical deterioration of her ability to function independently; and was unable to make a
rational and informed decision as to whether or not to submit to treatment. As the basis for his
opinion, Dr. Bouchat reported that S.E. admitted to ongoing mood instability, and stated that she
could not tolerate Valbroic, which would necessitate changing her medication regime. Further,
he stated that S.E. had become agitated numerous times over the past two to three months,
typically requiring medications for control. According to Dr. Rodriguez, S.E. reported feeling
emotionally stable. However, she also told him that “they” are violent on the ward, that before
she was admitted to the hospital, she almost had her head chopped off by a man with a big
knife—a machete, and that she had some type of “blue baby” syndrome. Further, he stated that
S.E. was cooperative and pleasant, that her speech was “pressured” with flight of ideas and
looseness of associations, that her mood was “depressed with fearfulness,” and that she
continued to require frequent emergency medications. Dr. Bouchat also signed an application
for an order to administer psychoactive medication to S.E.
       The trial court conducted a hearing on the applications for court ordered temporary
mental health services and to administer psychoactive medication. S.E. did not attend the hearing
and no testimony was presented. After the hearing, the trial court found, by clear and convincing
evidence, that S.E. was mentally ill, and was suffering severe and abnormal mental, emotional,
or physical distress; was experiencing substantial mental or physical deterioration of her ability
to function independently, exhibited by S.E.’s inability, except for reasons of indigence, to
provide for her basic needs, including food, clothing, health, or safety; and was unable to make a
rational and informed decision as to whether or not to submit to treatment. The trial court
rendered an order for temporary inpatient mental health services, committing S.E. to the Hospital
for a period not to exceed ninety days, and an order to administer psychoactive medication. This
appeal followed.


                                SUFFICIENCY OF THE EVIDENCE
       In her first and second issues, S.E. argues that the evidence is legally and factually
insufficient to support the order for temporary inpatient mental health services and the order to
administer psychoactive medication. Because of our disposition of S.E.’s legal sufficiency
argument, we do not address factual sufficiency. See TEX. R. APP. P. 47.1.
Standard of Review
       In a legal sufficiency review where the burden of proof is clear and convincing evidence,
we must look at all the evidence in the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief or conviction that its findings were true.
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the fact finder settled



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disputed facts in favor of its finding if a reasonable fact finder could do so and disregard all
evidence that a reasonable fact finder could have disbelieved or found incredible. Id. This does
not mean that we are required to ignore all evidence not supporting the finding because that
might bias a clear and convincing analysis. Id.
Temporary Inpatient Commitment Order
       The trial judge may order a proposed patient to receive court ordered temporary inpatient
mental health services only if the judge or jury finds, from clear and convincing evidence, that
the proposed patient is mentally ill and, as a result of that mental illness, she is likely to cause
serious harm to herself, is likely to cause serious harm to others, or is (i) suffering severe and
abnormal mental, emotional, or physical distress, (ii) experiencing substantial mental or physical
deterioration of her ability to function independently, which is exhibited by her inability, except
for reasons of indigence, to provide for her 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) (West Supp. 2014).
       “Clear and convincing evidence” means the measure or degree of proof that 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). To be clear and
convincing under this statute, the evidence must include expert testimony. TEX. HEALTH &
SAFETY CODE ANN. § 574.034(d) (West Supp. 2014). Unless waived, the evidence must show a
recent overt act or a continuing pattern of behavior that tends to confirm either the likelihood of
serious harm to the proposed patient or others, or the proposed patient’s distress and the
deterioration of her ability to function. Id.     The statutory requirements for an involuntary
commitment are strict because it is a drastic measure. In re C.O., 65 S.W.3d 175, 182 (Tex.
App.—Tyler 2001, no pet.).
       At trial, Dr. Bouchat’s and Dr. Rodriguez’s certificates of medical examination for
mental illness were admitted into evidence. We note that nothing in the Texas Health and Safety
Code regarding court ordered mental health services authorizes a trial court to base its findings
solely on the physicians’ certificates. See TEX. HEALTH & SAFETY CODE ANN. § 574.001-.089
(West 2010 & Supp. 2014). Pleadings, such as the application here, are not evidence that the
statutory standard has been met. See id. § 574.031 (West 2010) (stating that Texas Rules of
Evidence apply to hearing for court ordered mental health services unless rules are inconsistent



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with subtitle); In re E.T., 137 S.W.3d 698, 700 (Tex. App.—San Antonio 2004, no pet.); see
also Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995)
(noting that, generally, pleadings are not competent evidence, even if sworn or verified).
        Here, the doctors did not testify at trial and the only basis for the trial court’s decision
was their physicians’ certificates attached to the application. The application is not evidence that
the statutory standard for temporary inpatient mental health services has been met. See TEX.
HEALTH & SAFETY CODE ANN. § 574.031; In re E.T., 137 S.W.3d at 700; Laidlaw Waste Sys.
(Dallas), Inc., 904 S.W.2d at 660. Thus, we conclude, after viewing the evidence in the light
most favorable to the findings, that a reasonable trier of fact could not have formed a firm belief
or conviction that S.E. was suffering severe and abnormal mental, emotional, or physical
distress; was experiencing substantial mental or physical deterioration of her ability to function
independently; and was unable to make a rational and informed decision as to whether or not to
submit to treatment. See TEX. HEALTH & SAFETY CODE ANN. § 574.034(a), (d); In re J.F.C., 96
S.W.3d at 266. Consequently, the evidence is legally insufficient to support the trial court’s
finding based upon section 574.034(d) of the Texas Health and Safety Code. We sustain S.E.’s
first issue as to the legal sufficiency of the evidence.
Psychoactive Medication Order
        A trial court may issue an order authorizing the administration of one or more classes of
psychoactive medications to a patient who is under a court order to receive inpatient mental
health services. TEX. HEALTH & SAFETY CODE ANN. § 574.106(a) (West 2010). The court may
issue an order if it finds by clear and convincing evidence after the hearing that (1) the patient
lacks the capacity to make a decision regarding the administration of the proposed medication,
and (2) treatment with the proposed medication is in the best interest of the patient.           Id.
§ 574.106(a-1). Having determined that the evidence is legally insufficient to support the trial
court’s order for temporary inpatient mental health services, we have held that the trial court’s
order for temporary inpatient mental health services is invalid. Therefore, the order authorizing
administration of psychoactive medication is also invalid. See id. § 574.106(a).
        We sustain S.E.’s second issue.




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                                                    DISPOSITION
         We have sustained S.E.’s first issue in part and her second issue. Accordingly, we
reverse the trial court’s order for temporary inpatient mental health services and for
administration of psychoactive medication.                      We render judgment denying the State’s
applications for court ordered temporary mental health services and for an order to administer
psychoactive medication.

                                                                        JAMES T. WORTHEN
                                                                           Chief Justice


Opinion delivered December 10, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         DECEMBER 10, 2014


                                          NO. 12-14-00246-CV


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


                                Appeal from the County Court at Law
                           of Cherokee County, Texas (Tr.Ct.No. 41,072)

                        THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that the trial court’s orders
for temporary inpatient mental health services and to administer psychoactive medication should
be reversed and judgment rendered denying the State’s applications for court ordered temporary
mental health services and for an order to administer psychoactive medication.
                        It is therefore ORDERED, ADJUDGED and DECREED by this court that
the trial court’s orders for temporary inpatient mental health services and to administer
psychoactive medication, be, and the same are, hereby reversed and judgment is rendered
denying the State’s applications for court ordered temporary mental health services and for an
order to administer psychoactive medication; and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
