State ( 2015 )

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.