State

ACCEPTED
01-15-00784-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/21/2015 2:41:43 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00784-CV
__________
FILED IN
IN THE FIRST COURT OF APPEALS 1st COURT OF APPEALS
HOUSTON, TEXAS
HOUSTON, TEXAS
12/21/2015 2:41:43 PM
__________ CHRISTOPHER A. PRINE
Clerk
IN THE INTEREST OF E.S.R.
__________
On Appeal from Probate Court No. 4
Harris County, Texas, Cause No. I-218340
BRIEF OF APPELLEE STATE OF TEXAS
______________________________________________________________
V INCE R YAN
Harris County Attorney
K EIT H A. T OLER
Assistant County Attorney
State Bar No. 24088541
HARRIS COUNTY ATTORNEY’S OFFICE
1019 Congress, 15th Floor
Houston, Texas 77002
Phone: (713) 274-5265
Fax: (713) 755-8924
Email: Keith.Toler@cao.hctx.net
Counsel for Appellee
State of Texas
IDENTITY OF PARTIES AND COUNSEL
Appellant Counsel
E.S.R. T ERESA S CARDINO
Attorney at Law
4309 Yoakum, Suite 360
Houston, Texas 77006
Trial Counsel
M ICHAEL S COTT T HOMAS
Thomas & Williams, L.L.P.
2626 S. Loop West, Suite 561
Houston, Texas 77054
Appellate Counsel
Appellee Counsel
State of Texas V INCE R YAN
Harris County Attorney
Of Counsel
M ELINDA B RENTS
Senior Assistant County Attorney
Trial Counsel
K EIT H A. T OLER
Assistant County Attorney
Appellate Counsel
HARRIS COUNTY ATTORNEY’S OFFICE
1019 Congress, 15th Floor
Houston, Texas 77002
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TABLE OF CONTENTS
Identity of Parties and Counsel .........................................................................ii
Table of Contents ............................................................................................ iii
Index of Authorities .......................................................................................... v
Statement of the Case ....................................................................................... 2
Statement Regarding Oral Argument ............................................................... 2
Statement Regarding Record References ......................................................... 3
Reply Points ...................................................................................................... 3
Statement of Facts ............................................................................................. 4
Summary of the Argument ............................................................................. 14
Argument ........................................................................................................ 16
I. Standard of Review............................................................................................... 16
II. The evidence is legally and factually sufficient to support the
temporary commitment order............................................................................. 17
A. The State showed a recent overt act or continuing pattern of
behavior tending to confirm the likelihood E.S.R. would
seriously harm others. ................................................................................. 19
1. E.S.R.’s threats to kill his parents suffice alone. ......................... 20
2. E.S.R. also requested the return of his gun and
hallucinated people stalking and assaulting him. ........................ 22
B. The State also showed a recent overt act or continuing pattern
of behavior tending to confirm E.S.R.’s distress and the
deterioration of his ability to function. ................................................... 24
III. Because the temporary commitment order is valid, the order
authorizing administration of psychoactive medication is also
valid. ......................................................................................................................... 27
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Conclusion & Prayer ....................................................................................... 29
Certificate of Compliance ............................................................................... 30
Certificate of Service ...................................................................................... 30
Appellee’s Appendix ...................................................................................... 31
1) Texas Health & Safety Code § 574.034
2) Texas Health & Safety Code § 574.106
Note: The probate court orders are not included in the Appendix
because they are sealed. See C.R. at 26, 27.
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INDEX OF AUTHORITIES
Cases Page
G.H. v. State,
Nos. 01-13-00422-CV, 01-13-00423-CV, 2013 WL 5613457
(Tex. App.—Houston [1st Dist.] Oct. 10, 2013, no pet.) ......................20
Goldwait v. State,
961 S.W.2d 432 (Tex. App.—Houston [1st Dist.] 1997, no writ) ........25
Hagberg v. City of Pasadena,
224 S.W.3d 477 (Tex. App.—Houston [1st Dist.] 2007, no pet.).........28
J.M. v. State,
178 S.W.3d 185
(Tex. App.—Houston [1st Dist.] 2005, no pet.) ............................. 18, 24
Mezick v. State,
920 S.W.2d 427 (Tex. App.—Houston [1st Dist.] 1996, no pet.).........17
M.S. v. State,
137 S.W.3d 131 (Tex. App-Houston [1st Dist.] 2004, no pet.) ..... 16, 19
K.T. v. State,
68 S.W.3d 887 (Tex. App.—Houston [1st Dist.] 2002, no pet.).... 24, 26
State ex. rel. E.R.,
287 S.W.3d 297 (Tex. App.—Texarkana 2013, no pet.) ......................19
State v. K.E.W.,
315 S.W.3d 16 (Tex. 2010) ................................................ 16, 19, 20, 27
-v-
Statutes
Tex. Health & Safety Code
§ 574.034(a) (West 2015) ......................................................................17
§ 574.034(c) (West 2015) ......................................................................17
§ 574.034(d) (West 2015)......................................................... 17, 19, 20
§ 574.106(a) (West 2015) ......................................................................27
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No. 01-15-00784-CV
__________
IN THE FIRST COURT OF APPEALS
HOUSTON, TEXAS
__________
IN THE INTEREST OF E.S.R.
__________
On Appeal from Probate Court No. 4
Harris County, Texas, Cause No. I-218340
BRIEF OF APPELLEE STATE OF TEXAS
______________________________________________________________
To the Honorable Justices of the First Court of Appeals:
The probate court below properly ordered E.S.R. committed for
temporary mental-health services and authorized doctors to administer
psychoactive medication to E.S.R. Appellee State of Texas offered sufficient
evidence to show E.S.R. was likely to seriously harm others and was suffering
distress and deterioration of his ability to function. Thus, the State respectfully
requests this Court affirm both the judgment committing E.S.R. and the final
order authorizing administration of medication.
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STATEMENT OF THE CASE
E.S.R.’s father initiated this case by filing an application for emergency
detention and to commit E.S.R. for temporary mental-health services.1 Dr.
Hawkins, E.S.R.’s treating doctor, filed a petition to authorize administration
of psychoactive medication.2 After a hearing, the probate court ordered E.S.R.
committed for temporary inpatient mental-health services and authorized
administration of psychoactive medication.3 E.S.R. appeals both final orders.4
STATEMENT REGARDING ORAL ARGUMENT
Appellee State of Texas believes the facts and legal arguments in this
case are adequately presented in the briefs and records, and the decisional
process would not be significantly aided by oral argument. However, the State
acknowledges that this case involves a fact-specific inquiry and the State
welcomes the opportunity to present oral argument if the Court determines it
would be helpful.
1
C.R. at 8, 14.
2
C.R. at 19.
3
C.R. at 26, 27.
4
C.R. at 6.
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STATEMENT REGARDING RECORD REFERENCES
The records on appeal are designated as follows:
 C.R. – Clerk’s Record (filed Sept. 10, 2015)
 S.C.R. – Supplemental Clerk’s Record (filed Sept. 22, 2015)
 R.R. – Reporter’s Record (filed Oct. 12, 2015)
REPLY POINTS
Reply Point 1
To support an order for temporary commitment, the evidence must show
an overt act or continuing pattern of behavior tending to confirm either (1) the
likelihood of serious harm to self or others, or (2) the distress and deterioration
of the ability to function independently. At the commitment hearing, the State
showed E.S.R. threatened to kill his parents, requested the return of his gun,
and claimed people stalked, assaulted, and shot at him. The State also showed
the medication classes necessary to treat E.S.R. and the effect of his refusal to
be treated. Was the evidence legally and factually sufficient to support the
temporary commitment order?
Reply Point 2
An order authorizing administration of psychoactive medication is only
valid if the patient is under a valid temporary commitment order. E.S.R.
challenges the medication order only because he argues the commitment order
is not valid. But if the commitment order is valid, then is the medication order
also valid?
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STATEMENT OF FACTS
A. Events Prior to Filing the Commitment Application
E.S.R. is a middle-aged male with a long history of mental illness and
who supports himself with disability payments.5 Shortly after E.S.R. moved
from Austin to Houston to live with his parents, his father filed an application
to temporarily commit him for mental-health services (commitment
application).6 On August 24, 2015, only a few weeks after moving home, E.S.R.
began ranting, yelling, and threatening to kill his parents if they turned him in
for psychiatric care.7 E.S.R. also requested his parents return his gun and
complained people were stalking and attacking him through locked doors and
people were shooting at him.8
The next day, E.S.R.’s father applied for emergency detention and a
magistrate issued an order and warrant to apprehend and detain E.S.R.9 He was
detained on the same day and taken to Methodist Hospital for evaluation.10
5
E.g., C.R. at 8; R.R. at 13:24 – 14:1.
6
C.R. at 8; R.R. at 15:10–17, 17:24 – 18:2.
7
C.R. at 10; R.R. at 7:22 – 8:6.
8
C.R. at 10; R.R. at 7:22 – 8:6.
9
C.R. at 12, 13, 14.
10
C.R. at 12, 15.
-4-
B. The Commitment Application
Two days later, E.S.R.’s father filed the commitment application.11 In it,
he stated E.S.R. is mentally ill and, as a result, is likely to seriously harm
himself or others. The application also stated E.S.R. is suffering substantial
deterioration of his ability to function independently, to provide for his basic
needs, and to make a rational and informed decision whether to submit to
treatment.12 E.S.R.’s father also filed an affidavit detailing E.S.R.’s ranting,
yelling, threatening to kill his parents, requesting the return of his gun, and
complaining someone was stalking and attacking him.13
Two doctors examined E.S.R. in the two days between his admission to
Methodist Hospital and the filing of the commitment application on August
27.14 Dr. Hawkins, the primary treating doctor, certified he examined E.S.R.
and diagnosed him with schizophrenia and other medical and mental illnesses.15
Relying on E.S.R.’s father’s observations of E.S.R., particularly the threat to
kill his parents, Dr. Hawkins determined E.S.R. is “currently psychotic and
11
C.R. at 8.
12
C.R. at 8.
13
C.R. at 10.
14
C.R. at 9, 15. See also C.R. at 8, 12.
15
C.R. at 9.
-5-
cannot care for himself due to [his psychosis] or protect himself from danger.”16
Dr. Hawkins also stated, “[E.S.R.] is paranoid and delusional and disorganized
and as a result, he cannot care for himself or protect himself from danger[,]”
and there is “[n]o less restrictive means to ensure [E.S.R.’s] safety or the safety
of others.”17
Dr. Smith also examined E.S.R. on August 26 and diagnosed him with
unspecified psychosis.18 Dr. Smith relied on E.S.R.’s father’s observations that
E.S.R. asked for his gun, threatened to kill his parents, and “has been attempting
to break through doors at home.”19 Dr. Smith found that “[E.S.R.] is
uncooperative with poor insight and judgment[,]” he is “[an] acute risk to
himself and others[,]” he is “psychotic with delusions and paranoia[,]” and he
“is likely to deteriorate further [without] treatment and hospitalization.”20
E.S.R.’s father filed both Drs. Hawkins’ and Smith’s certificates of medical
examination with the commitment application.21
16
C.R. at 9.
17
C.R. at 9.
18
C.R. at 15.
19
C.R. at 15.
20
C.R. at 15.
21
C.R. at 8, 9, 15.
-6-
C. The Medication Petition
On September 2, 2015, Dr. Hawkins filed a petition to administer
psychoactive medication to E.S.R. (medication petition).22 In his petition, Dr.
Hawkins stated he diagnosed E.S.R. with schizophrenia, explaining E.S.R.
“appears delusional [and] disorganized and as a result, he cannot care for
himself, including making an informed decision on his own behalf.”23
Dr. Hawkins determined E.S.R. needed treatment with psychoactive
medication, including antidepressants, antipsychotics, anxiolytics/sedatives/
hypnotics, and mood stabilizers.24 E.S.R.’s prognosis with the proposed
treatment was “fair to good,” and the consequences without was “poor with
further deterioration.”25 Dr. Hawkins considered group or individual therapy as
an alternative to medication, but the therapy was “not demonstrated to be
effective alone.”26
22
C.R. at 19–20.
23
C.R. at 19.
24
C.R. at 19.
25
C.R. at 19.
26
C.R. at 20.
-7-
D. The Evidence Supporting the Commitment Application
On September 3, 2015, the probate court heard the commitment
application and the medication petition.27 Counsel for the State began the
commitment hearing by asking E.S.R.’s counsel to stipulate to the facts in
E.S.R.’s father’s affidavit. E.S.R. interrupted and the court warned E.S.R. about
interrupting. No further discussion of or objection to the stipulation appears in
the record.28
The State also offered Dr. Hawkins’ testimony. He testified he had been
working with E.S.R. for just over a week.29 Despite E.S.R.’s lack of
participation in the examination, Dr. Hawkins testified E.S.R. suffers from a
chronic condition of either schizophrenia or schizoaffective disorder.30 Dr.
Hawkins acknowledged E.S.R.’s long history of mental illness going back to
at least 1983.31 He described E.S.R.’s behaviors as “disorganized and outside
the norm,” finding E.S.R. suffers from “paranoid delusions”:
He has fear that people are hurting him. . . . [H]e’s concerned that
folks are shooting [at] him. The family became concerned after
[E.S.R.] requested they bring a firearm. He also has made threats
27
See R.R. at 1.
28
R.R. at 4:23 – 5:17.
29
R.R. at 6:8–10.
30
R.R. at 6:16–23.
31
R.R. at 7:3–8.
-8-
against the family . . . [and stated something like] if they had him
committed to the psychiatric hospital that he would kill them or
harm them in some way . . . ”32
Dr. Hawkins believed E.S.R. was capable of acting on the threats.33
While E.S.R. was in the hospital on the emergency detention order, Dr.
Hawkins observed E.S.R.’s “paranoia, believing things are happening that the
staff are not observing . . . ”34 Dr. Hawkins testified E.S.R. has refused to
cooperate with the diagnosis and he refuses medication and some work at the
hospital.35 Dr. Hawkins also testified E.S.R. is likely to cause serious harm to
either himself or others as a result of his mental illness. Dr. Hawkins’ primary
concerns were the likelihood E.S.R. would harm others and his ability to care
for himself.36 According to Dr. Hawkins’ testimony, “[E.S.R.’s] level of
psychosis would make it difficult for him to care for himself and protect[]
himself and mak[e] sure to do the things he needs to do to live.”37
Dr. Hawkins also stated he believes E.S.R. would suffer severe and
abnormal mental, emotional, and physical distress if he was released without
32
R.R. at 7:15 – 8:6.
33
R.R. at 11:3–5.
34
R.R. at 8:7–9.
35
R.R. at 6:20–23, 9:3–16.
36
R.R. at 10:19–25.
37
R.R. at 10:22–25.
-9-
treatment.38 Dr. Hawkins did not believe E.S.R. could make decisions regarding
his own basic needs, including health and safety, or that E.S.R. was able to
make a rational and informed decision as to whether to commit to treatment.39
Dr. Hawkins recommended a “complete medical workup” and treatment.40 He
opined, “I think if we can get his psychosis under control, he’d be more better
able to participate with us in evaluating his medical concerns . . . I do believe
that if we get him on medication, his symptoms will decrease and [he will] be
able to work with us . . . ”41
In response, E.S.R. testified that he disagreed with commitment and
offered either to go to a hotel or to ask a friend to stay on his property. 42 E.S.R.
denied threatening to harm himself or his parents.43 He admitted he tried to get
his gun for “self[-]defense” because “[he’s] been stalked and assaulted for a
number of times. [He] reported out to five police forces and gotten no actual
response or help from them.”44 E.S.R. said that people tried to harm him during
38
R.R. at 11:6–9.
39
R.R. at 11:10–20.
40
R.R. at 11:21–24.
41
R.R. at 11:25 – 12:5.
42
R.R. at 13:14–23.
43
R.R. at 14:12–16.
44
R.R. at 14:17–24.
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the entirety of his two years living in Austin, and that was a factor in his
decision to move to Houston.45 He admitted he was committed to mental-health
services in Round Rock.46 E.S.R. also testified that the manifestations of mental
illness are due to neurological issues, not psychological issues, but offered no
proof.47 E.S.R. indicated he would consider neurological treatment, which Dr.
Hawkins testified was possible while committed.48
E. The Court Orders E.S.R. Temporarily Committed
At the hearing, the probate court ordered E.S.R. temporarily committed
for mental-health services (commitment order or judgment).49 The court stated,
“the information that’s in the two doctors’ letters is very compelling, and . . . I
wouldn’t feel comfortable with myself if I did not commit [E.S.R] based upon
the second and third criteria for commitment.”50 The court expressly found by
clear and convincing evidence that:
“[E.S.R.] is mentally ill and as . . . the result of that mental illness
[1] is likely to cause harm to others; [and] [2](i) is suffering severe
abnormal mental, emotional, or physical distress; (ii) is
45
R.R. at 15:10–21.
46
R.R. at 15:21–23.
47
R.R. at 16:21 – 17:23.
48
R.R. 18:11–16, 20:14 – 21:11.
49
R.R. at 23:3–14. See also C.R. at 27.
50
R.R. at 23:5–10.
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experiencing substantial and mental or physical deterioration of
his ability to function independently, except for reasons of
indigence, to provide for [his] basic needs; including food,
clothing, health, or safety; and (iii) is not able to make a rational
and informed decision as to whether to submit to treatment.”51
The court’s judgment committed E.S.R. to Methodist Hospital up to 90 days
for mental-health services.52
F. The Court Authorizes the Administration of Medication
Immediately following the commitment hearing, the probate court heard
the petition to authorize administration of psychoactive medication.53 Again,
Dr. Hawkins and E.S.R. testified. Dr. Hawkins testified to his diagnosis of
schizophrenia or schizoaffective disorder and his prognosis that “with
medication, potentially, [E.S.R.] can do fairly well; without . . . I think the
outcome will be poor.”54
E.S.R. denied having any delusions and testified he refused to cooperate
with Dr. Hawkins because he disagrees with the treatment plan.55 E.S.R. again
stated his condition was neurological, not psychological, and Dr. Hawkins
51
C.R. at 27.
52
C.R. at 27.
53
R.R. at 23.
54
R.R. at 23:19–23, 24:20–24.
55
R.R. at 27:6–15, 29:20–24.
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replied that he is unaware of any neurological conditions that cause persistent
delusions.56
At the end of the hearing, the court authorized the administration of
medication (medication order).57 Recognizing the “serious problems set out in
the doctor’s letter[,]” the court reasoned that “Dr. Hawkins really has [E.S.R.’s]
best interest at heart[.]”58 The court expressly relied on Dr. Hawkins’ testimony
and reasoned that “the medication sought to be administered is the least
invasive yet an effective form of treatment.”59 The medication order authorized
Dr. Hawkins and Methodist Hospital to administer psychoactive medication to
E.S.R., and E.S.R. timely appealed both orders.60
56
R.R. at 26:5–16, 27:16–19.
57
R.R. at 32:16–17. See also C.R. at 26.
58
R.R. at 28:25 – 29:2, 32:23–24.
59
C.R. at 26.
60
C.R. at 6, 26.
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SUMMARY OF THE ARGUMENT
This appeal presents a fact-specific inquiry into the legal and factual
sufficiency of two court orders. The probate court ordered E.S.R. temporarily
committed for mental-health services and authorized administration of
psychoactive medication. E.S.R. appeals both orders. But the evidence legally
and factually supports both orders.
To support a temporary commitment order, the State of Texas need only
show the presence of one statutory criterion by clear and convincing evidence.
Here, the State showed two criteria: (1) E.S.R. was likely to harm others, and
(2) E.S.R. was in distress and his ability to function independently was
deteriorating.
The State showed E.S.R. threatened to kill his parents, requested his gun,
hallucinated people were stalking and assaulting him through locked doors, and
had delusions about people shooting at him. This behavior began shortly after
E.S.R. moved to Houston from Austin to live with his parents, and just days
before E.S.R.’s father initiated these proceedings. The behavior continued
while he was in the hospital, where E.S.R. had paranoia, delusions, irritability,
and agitation.
In addition, Dr. Hawkins testified at trial about his opinions and their
factual bases. Dr. Hawkins relied on E.S.R.’s father’s statements and his own
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observations after treating E.S.R. for nearly a week. While E.S.R.’s verbal
threats to kill his parents are sufficient alone to support the commitment order,
the State offered other evidence tending to confirm E.S.R. was likely to cause
serious harm to others, he was distressed, and his ability to function was
deteriorating. Thus, the evidence is legally and factually sufficient to support
the order temporarily committing E.S.R. for mental-health services.
Because the temporary commitment order is valid, the order authorizing
medication is also valid. E.S.R. only argues the medication order is invalid
based on his erroneous challenge to the commitment order. E.S.R. waived any
other argument. Because the commitment order is valid, the medication order
is also valid. Therefore, this Court should affirm both orders.
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ARGUMENT
I. Standard of Review
When a party challenges the sufficiency of clear and convincing
evidence, the appellate court considers whether the evidence “will produce in
the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations . . . ”61 When reviewing the factual sufficiency of the evidence, the
court considers “all the evidence to determine if it was sufficient to produce a
firm belief or conviction in the mind of the fact finder of the allegations
pleaded.”62 When reviewing the legal sufficiency of the evidence, on the other
hand, the court considers “only the evidence and inferences tending to support
the finding, and [the court] disregard[s] all contrary evidence and inferences.”63
If any probative evidence supports the finding, the court should uphold the
decision.64
61
State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010) (citations omitted).
62
M.S. v. State, 137 S.W.3d 131, 135 (Tex. App-Houston [1st Dist.] 2004, no pet.)
(citations omitted).
63
Id. (citations omitted). See also K.E.W., 315 S.W.3d at 20.
64
M.S., 137 S.W.3d at 135 (citations omitted).
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II. The evidence is legally and factually sufficient to support the
temporary commitment order.
The temporary commitment order is valid. Section 574.034 of the Mental
Health Code authorizes a court to order temporary, involuntary mental-health
services only if clear and convincing evidence shows a person is mentally ill
and, as a result, the person:
 is likely to cause serious harm to self;
 is likely to cause serious harm to others; or
 is experiencing substantial mental or physical deterioration of the
ability to function independently and is unable to decide whether to
submit to treatment.65
To be clear and convincing, the evidence must include both (1) expert
testimony supported by a factual basis and (2) evidence of a recent overt act or
continuing pattern of behavior tending to confirm one of the three criteria listed
above.66 The court’s order must specify which criterion forms the basis of its
decision.67 Although the order may be based on more than one criteria, a valid
order requires only one.68 The overt act or continuing pattern of behavior must
65
Tex. Health & Safety Code Ann. § 574.034(a) (West 2015).
66
Tex. Health & Safety Code Ann. § 574.034(d) (West 2015).
67
Tex. Health & Safety Code Ann. § 574.034(c) (West 2015).
68
Mezick v. State, 920 S.W.2d 427, 431 (Tex. App.—Houston [1st Dist.] 1996, no pet.)
(citations omitted) (finding that because one statutory criterion was met, reviewing court
was not required to decide whether second criterion met).
- 17 -
relate to the criterion specified in the order.69 For example, there must be an
overt act showing a likelihood of harm to others if that is the specified criterion.
On appeal, E.S.R. challenges the State’s evidence on the two criteria the
probate court found to support the judgment: (1) likelihood of seriously
harming others, and (2) distress and deterioration of E.S.R.’s ability to function.
E.S.R. does not dispute that:
 he is mentally ill;70
 Dr. Hawkins’ qualifies as an expert, as stipulated by E.S.R.;71 and
 the temporary commitment order expressly bases its decision on
two criteria.72
Thus, if the State’s evidence supports a showing of either (1) a likelihood of
serious harm to others or (2) distress and deterioration, then the commitment
order is valid.
69
J.M. v. State, 178 S.W.3d 185, 193 (Tex. App.—Houston [1st Dist.] 2005, no pet.)
(citations omitted).
70
Appellant’s Brief at p. 11.
71
R.R. at 6:4–7.
72
C.R. at 27.
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A. The State showed a recent overt act or continuing pattern of
behavior tending to confirm the likelihood E.S.R. would
seriously harm others.
The evidence was legally and factually sufficient to support finding
E.S.R. was likely to seriously harm others. To satisfy this criterion, the State
must show a likelihood E.S.R. will seriously harm others.73 While the State
need not show actual harm to others, it must show more than the presence of
mental illness. For example, showing only that someone is intrusive and has
poor boundaries with others is not enough.74 But the Supreme Court in State v.
K.E.W. found the following overt acts sufficiently showed a likelihood K.E.W.
would seriously harm others:
 statements that he was assigned to impregnate specific women,
including hospital workers and his stepdaughter;
 statement seeking access to certain female hospital workers;
 written plans detailing his mission and including names of specific
women whom he firmly believed he must impregnate; and
 verbal insistence on searching for the women.75
73
K.E.W., 315 S.W.3d at 22–23 (citing Tex. Health & Safety Code Ann. § 574.034(d)
(West 2015)). See also State ex. rel. E.R., 287 S.W.3d 297, 305 (Tex. App.—Texarkana
2013, no pet.).
74
M.S., 137 S.W.3d at 137.
75
K.E.W., 315 S.W.3d at 26.
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And this Court determined in G.H. v. State that G.H.’s threatening to kill
hospital staff and throwing objects at workers were sufficient overt acts or
continuing patterns of behavior to support a commitment order.76
1. E.S.R.’s threats to kill his parents suffice alone.
Because the State must only show a likelihood of seriously harming
others, E.S.R.’s threats to kill his parents is sufficient evidence of an overt act.77
A verbal threat is a sufficient overt act.78 The Mental Health Code authorizes
commitment of a person whose statements “foreshadow violence.”79
E.S.R.’s father first claimed E.S.R. threatened to kill his parents in an
affidavit supporting the commitment application. Dr. Hawkins’ testified about
the threat at the hearing.80 His certificate of medical examination also partly
relied on the affidavit to conclude E.S.R. was psychotic and no less restrictive
means would ensure the safety of E.S.R. and others.81 The probate court
76
G.H. v. State, Nos. 01-13-00422-CV, 01-13-00423-CV, 2013 WL 5613457, at *6
(Tex. App.—Houston [1st Dist.] Oct. 10, 2013, no pet.).
77
K.E.W., 315 S.W.3d at 22–23 (citing Tex. Health & Safety Code Ann. § 574.034(d)
(West 2015)).
78
K.E.W., 315 S.W.3d at 26.
79
G.H., 2013 WL 5613457, at *4.
80
E.g., R.R. at 8:1–6.
81
R.R. at 7:22 – 8:9; C.R. at 9.
- 20 -
expressly relied on Dr. Hawkins certificate in finding E.S.R. is likely to cause
serious harm to others.82
Although E.S.R. denied threatening anyone, the factfinder discredited
his testimony because it is contradicted by other evidence. For example,
E.S.R.’s father and treating doctor both claimed E.S.R. made the threats. And
E.S.R.’s testimony admitting other bizarre behavior—such as requesting a gun
from his parents and hallucinating people were stalking and assaulting him—
shows E.S.R. is willing to concede some overt acts except the threats. E.S.R.
denied threatening to kill his parents because he does not want to be committed,
and the threat alone is sufficient to commit him. Thus, E.S.R.’s self-serving
testimony that he did not threaten his parents is inconsistent with other
evidence.
E.S.R. argues on appeal that the evidence was insufficient partly because
Dr. Hawkins did not testify about the date E.S.R. threatened his family. But the
commitment application and affidavit show E.S.R. threatened his parents on
August 24, the day before he was detained on an emergency warrant and just
three days before his father initiated these proceedings.83 Dr. Hawkins also
testified the threats were made because E.S.R. did not want to be committed
82
R.R. at 23:5–7.
83
C.R. at 10. See also C.R. at 8, 12.
- 21 -
for psychiatric care.84 That his father filed the application soon after E.S.R.
moved to his parents’ house shows the threats were made soon before the filing.
E.S.R. also argues Dr. Hawkins did not explain his diagnosis of
schizophrenia or schizoaffective disorder. E.S.R. waived this argument by
failing to cross-examine Dr. Hawkins on it. And E.S.R. concedes he is mentally
ill. In any event, the alternate diagnosis is inconsequential because Dr.
Hawkins’ opinions were the same for either diagnosis—E.S.R.’s actions and
behavior show he is likely to harm others.
Thus, E.S.R.’s threat alone is sufficient to support the commitment order.
2. E.S.R. also requested the return of his gun and hallucinated
people stalking and assaulting him.
In addition to threatening to kill his parents, E.S.R. also:
 requested his parents return his gun;85
 thought he was being stalked and attacked through locked doors;86
 thought he was being shot at;87 and
 believed things were happening in the hospital that staff did not see,
and otherwise behaved with paranoia, irritability, and agitation.88
84
R.R. at 7:21 – 8:6.
85
E.g., C.R. at 10; R.R. at 7:24–25, 8:15–16.
86
E.g., C.R. at 10; R.R. at 7:20–22, 8:16–17.
87
R.R. at 7:21–25.
88
R.R. at 8:7–9.
- 22 -
All of the evidence showed a sufficient overt act or continuing pattern of
behavior tending to confirm the likelihood E.S.R. will seriously harm others.
Within a few weeks of moving to his parents’ house in Houston, E.S.R.’s
behavior caused his father to file the commitment application. Like K.E.W.’s
statements of impregnating women and his detailed plans and insistence on
searching for the women,89 E.S.R.’s overt acts and continuing patterns of
behavior support his temporary commitment. E.S.R. threatened to kill his
parents if they turned him in for psychiatric care, sought return of his gun,
hallucinated people were trying to harm him, and was irritable and agitated.
These actions and continuing patterns of behavior are the kinds that the Mental
Health Code seeks to address through temporary mental-health services.
E.S.R. argues that Dr. Hawkins did not testify to E.S.R.’s ownership,
possession, custody, or control of a gun. But E.S.R.’s father’s affidavit stated
E.S.R. “requested the return of his gun . . . ”90 And the fact that E.S.R. lacked
possession, custody, and control of the gun confirms the likelihood he may
seriously harm someone: E.S.R.’s father knows E.S.R. and decided it best
E.S.R. not have access to the gun. For E.S.R.’s own health, safety, and
protection, the probate court ordered him committed for treatment. The
89
See supra text accompanying note 75.
90
C.R. at 10. See also R.R. at 8:15–16.
- 23 -
commitment order is supported by legally and factually sufficient evidence, and
this Court should affirm it.
B. The State also showed a recent overt act or continuing pattern
of behavior tending to confirm E.S.R.’s distress and the
deterioration of his ability to function.
The State’s evidence of E.S.R.’s distress and deterioration of his ability
to function was also sufficient to support the commitment order. Although
refusal of medication alone is insufficient, it may suffice if the State also shows
the necessary medication and the effect of the patient’s refusal to take it.91
This was the fatal flaw in J.M. v. State, in which this Court found the
evidence was legally and factually insufficient. Instead of showing what
medication is necessary to help J.M. and the effect of his refusal to take it, the
State argued that involuntary commitment and treatment was necessary
because J.M. would not voluntarily submit to it. Without evidence of the
necessary medication and the consequences of the refusal to take it, the J.M.
Court described this reasoning as tautological, and rejected it.92
91
See J.M., 178 S.W.3d at 194–95 (citations omitted).
92
Id. See also K.T. v. State, 68 S.W.3d 887, 893 (Tex. App.—Houston [1st Dist.] 2002,
no pet.) (finding patient’s leaving hospital did no more than demonstrate she did not wish to
be treated or to remain at hospital).
- 24 -
In Goldwait v. State, on the other hand, this Court found the evidence
sufficient to support a temporary commitment order.93 In Goldwait, the
examining physician diagnosed Goldwait with paranoid schizophrenia and
recommended he not be released. The physician opined that Goldwait’s
judgment was impaired beyond his ability to function properly, he would
further deteriorate, and he was incapable of making a rational and informed
decision about the need for treatment.94 Goldwait’s brother also testified about
“unnerving events,” including making disturbing phone calls and letters, selling
all of his belongings, losing contact with friends, appearing tired, claiming he
had been gassed and forced off the road recently, asking to remove his brother’s
blood, and continuing the bizarre behavior after coming to Houston with his
brother.95 This Court found that these overt acts and continuing patterns of
behavior were sufficient to support the temporary commitment order.96
Here, the State showed E.S.R. refused medication,97 what medication
was necessary, the effect of E.S.R.’s failure to take it, and other overt acts or
93
Goldwait v. State, 961 S.W.2d 432, 435–36 (Tex. App.—Houston [1st Dist.] 1997,
no writ) (citations omitted).
94
Id. at 435.
95
Id.
96
Id. (citations omitted).
97
R.R. at 6:11–22, 9:3 – 10:12. See also C.R. at 19.
- 25 -
continuing patterns of behavior tending to confirm E.S.R.’s distress and the
deterioration of his ability to function independently. Dr. Hawkins agreed that
E.S.R. should be treated with psychotic medication to begin improvement and
then reevaluate as necessary.98 He stated the medicine would help treat E.S.R.’s
symptoms, such as being “disorganized and outside the norm” and suffering
paranoia, delusions, irritability, and agitation.99 Each of these overt acts and
continuing patterns of behavior tend to confirm E.S.R.’s distress and the
deterioration of his ability to function at the time of the hearing, not at some
time in the future.
To the extent E.S.R. challenges the factual bases of Dr. Hawkins’
opinions, E.S.R. is mistaken.100 Dr. Hawkins relied on the information in
E.S.R.’s father’s affidavit. Dr. Hawkins also relied on his experience treating
E.S.R. for almost a week at the time of the hearing.101 He observed E.S.R. was
disorganized and outside the norm, suffered paranoia, delusions, irritability,
and agitation.102 E.S.R. also refused to cooperate with Dr. Hawkins’ evaluation
98
C.R. at 19; R.R. at 9:17 – 10:12.
99
R.R. at 7:15–21, 8:7–9, 9:17–23.
100
See K.T., 68 S.W.3d at 893–94.
101
R.R. at 6:8–10, 7:22 – 8:6.
102
R.R. at 7:15–21, 8:7–9, 9:17–23.
- 26 -
and refused medication.103 E.S.R. pleads “the Fifth” when Dr. Hawkins
questions him about his delusions.104
Thus, the State’s evidence was sufficient to show an overt act or
continuing pattern of behavior tending to confirm E.S.R.’s distress and the
deterioration of his ability to function independently. Because the commitment
order was valid, this Court should affirm it.
III. Because the temporary commitment order is valid, the order
authorizing administration of psychoactive medication is also valid.
E.S.R. challenges the medication order on one ground: that its validity
depends on the validity of the commitment order, which E.S.R. disputes. A
court may only authorize administration of psychoactive medication in limited
circumstances, such as when a person is under a valid temporary commitment
order.105 When a party solely relies on its argument against the validity of a
commitment order to argue that a dependent medication order is invalid, and
an appellate court upholds the commitment order, the appellate court should
also uphold the medication order.106
103
R.R. at 6:20–22, 9:15–16.
104
R.R. at 8:17–22.
105
Tex. Health & Safety Code Ann. § 574.106(a) (West 2015).
106
K.E.W., 315 S.W.3d at 26.
- 27 -
On appeal, E.S.R. only challenges the validity of the medication order
on the erroneous ground the commitment order is invalid.107 He waived any
other argument not raised in his appellate brief.108 Therefore, because the
commitment order was valid, this Court should also affirm the medication
order.
107
Appellant’s Brief at pp. 15–16.
108
E.g., Hagberg v. City of Pasadena, 224 S.W.3d 477, 480–81 (Tex. App.—Houston
[1st Dist.] 2007, no pet.) (citations omitted).
- 28 -
CONCLUSION & PRAYER
E.S.R.’s behavior is the kind the Legislature intended to commit a person
for temporary, involuntary mental-health services under the Mental Health
Code. The Legislature has limited this remedy to three narrow circumstances
primarily involving the health and safety of the mentally ill person and others.
E.S.R. threatened to kill his parents, requested they return his gun, and
hallucinated and deluded about people stalking and assaulting him. This is the
kind of behavior warranting temporary commitment to protect the health and
safety of E.S.R. and others. Because the evidence is sufficient, this Court
should affirm the final judgment and medication order.
Respectfully submitted,
V INCE R YAN
Harris County Attorney
/s/ Keith A. Toler
K EIT H A. T OLER
Assistant County Attorney
State Bar No. 24088541
HARRIS COUNTY ATTORNEY’S OFFICE
1019 Congress, 15th Floor
Houston, Texas 77002
Phone: (713) 274-5265
Fax: (713) 755-8924
Email: Keith.Toler@cao.hctx.net
Counsel for Appellee
State of Texas
- 29 -
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft
Word and contains 4,765 words, as determined by the computer software’s
word-count function, excluding the portions of the document exempted by
Texas Rule of Appellate Procedure 9.4(i)(1). I further certify that the form of
this brief meets the requirements of Texas Rule of Appellate Procedure 9.4.
/s/ Keith A. Toler
K EIT H A. T OLER
Counsel for Appellee
CERTIFICATE OF SERVICE
I certify that on December 21, 2015, I served a true and correct copy of
this brief on Michael Scott Thomas, counsel for Appellant, by electronic
transmission via the electronic filing manager or by email.
Michael Scott Thomas
Thomas & Williams, L.L.P.
2626 S. Loop West, Suite 561
Houston, Texas 77054
mstlawyer@aol.com
Counsel for Appellant
/s/ Keith A. Toler
K EIT H A. T OLER
Counsel for Appellee
- 30 -
No. 01-15-00784-CV
__________
IN THE FIRST COURT OF APPEALS
HOUSTON, TEXAS
__________
IN THE INTEREST OF E.S.R.
__________
On Appeal from Probate Court No. 4
Harris County, Texas, Cause No. I-218340
APPELLEE’S APPENDIX
______________________________________________________________
List of Documents
1) Texas Health & Safety Code § 574.034 ..........................................Tab 1
2) Texas Health & Safety Code § 574.106 ..........................................Tab 2
- 31 -
TAB #1
§ 574.034. Order for Temporary Mental Health Services, TX HEALTH & S § 574.034
KeyCite Yellow Flag - Negative Treatment
Proposed Legislation
(a) The 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:
(1) the proposed patient is a person with mental illness ; and
(2) as a result of that mental illness the proposed patient:
(A) is likely to cause serious harm to the proposed patient ;
(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,
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 574.034. Order for Temporary Mental Health Services, TX HEALTH & S § 574.034
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.
(b) The judge may order a proposed patient to receive court-ordered temporary outpatient mental
health services only if:
(1) the judge finds that appropriate mental health services are available to the proposed patient;
and
(2) the judge or jury finds, from clear and convincing evidence, that:
(A) the proposed patient is a person with mental illness ;
(B) the nature of the mental illness is severe and persistent;
(C) as a result of the mental illness, the proposed patient will, if not treated, continue to:
(i) suffer severe and abnormal mental, emotional, or physical distress; and
(ii) experience deterioration of the ability to function independently to the extent that the
proposed patient will be unable to live safely in the community without court-ordered
outpatient mental health services; and
(D) the proposed patient has an inability to participate in outpatient treatment services
effectively and voluntarily, demonstrated by:
(i) any of the proposed patient's actions occurring within the two-year period which
immediately precedes the hearing; or
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 574.034. Order for Temporary Mental Health Services, TX HEALTH & S § 574.034
(ii) specific characteristics of the proposed patient's clinical condition that make impossible
a rational and informed decision whether to submit to voluntary outpatient treatment.
(c) If the judge or jury finds that the proposed patient meets the commitment criteria prescribed
by Subsection (a), the judge or jury must specify which criterion listed in Subsection (a)(2) forms
the basis for the decision.
(d) To be clear and convincing under Subsection (a), 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.
(e) To be clear and convincing under Subdivision (b)(2), 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 proposed patient's distress;
(2) the deterioration of ability to function independently to the extent that the proposed patient
will be unable to live safely in the community; and
(3) the proposed patient's inability to participate in outpatient treatment services effectively and
voluntarily.
(f) The proposed patient and the proposed patient's attorney, by a written document filed with
the court, may waive the right to cross-examine witnesses, and, if that right is waived, the
court may admit, as evidence, the certificates of medical examination for mental illness. The
certificates admitted under this subsection constitute competent medical or psychiatric testimony,
and the court may make its findings solely from the certificates. If the proposed patient and the
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
§ 574.034. Order for Temporary Mental Health Services, TX HEALTH & S § 574.034
proposed patient's attorney do not waive in writing the right to cross-examine witnesses, the court
shall proceed to hear testimony. The testimony must include competent medical or psychiatric
testimony. In addition, the court may consider the testimony of a nonphysician mental health
professional as provided by Section 574.031(f).
(g) An order for temporary inpatient or outpatient mental health services shall state that treatment
is authorized for not longer than 90 days. The order may not specify a shorter period.
(h) A judge may not issue an order for temporary inpatient or outpatient mental health services for
a proposed patient who is charged with a criminal offense that involves an act, attempt, or threat
of serious bodily injury to another person.
(i) Repealed by Acts 2013, 83rd Leg., ch. 1170 (S.B. 646), § 11.
Credits
Added by Acts 1991, 72nd Leg., ch. 76, § 1, eff. Sept. 1, 1991. Amended by Acts 1993, 73rd Leg.,
ch. 107, § 6.49, eff. Aug. 30, 1993; Acts 1995, 74th Leg., ch. 770, § 7, eff. June 16, 1995; Acts
1997, 75th Leg., ch. 744, § 5, eff. Sept. 1, 1997; Acts 2013, 83rd Leg., ch. 1170 (S.B. 646), § 11,
eff. Sept. 1, 2013; Acts 2015, 84th Leg., ch. 1 (S.B. 219), § 3.1379, eff. April 2, 2015.
V. T. C. A., Health & Safety Code § 574.034, TX HEALTH & S § 574.034
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
TAB #2
§ 574.106. Hearing and Order Authorizing Psychoactive..., TX HEALTH & S §...
(a) The court may issue an order authorizing the administration of one or more classes of
psychoactive medication to a patient who:
(1) is under a court order to receive inpatient mental health services; or
(2) is in custody awaiting trial in a criminal proceeding and was ordered to receive inpatient
mental health services in the six months preceding a hearing under this section.
(a-1) The court may issue an order under this section only if the court finds by clear and convincing
evidence after the hearing:
(1) that the patient lacks the capacity to make a decision regarding the administration of the
proposed medication and treatment with the proposed medication is in the best interest of the
patient; or
(2) if the patient was ordered to receive inpatient mental health services by a criminal court with
jurisdiction over the patient, that treatment with the proposed medication is in the best interest of
the patient and either:
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 574.106. Hearing and Order Authorizing Psychoactive..., TX HEALTH & S §...
(A) the patient presents a danger to the patient or others in the inpatient mental health facility in
which the patient is being treated as a result of a mental disorder or mental defect as determined
under Section 574. 1065; or
(B) the patient:
(i) has remained confined in a correctional facility, as defined by Section 1.07, Penal Code, for a
period exceeding 72 hours while awaiting transfer for competency restoration treatment; and
(ii) presents a danger to the patient or others in the correctional facility as a result of a mental
disorder or mental defect as determined under Section 574.1065.
(b) In making the finding that treatment with the proposed medication is in the best interest of the
patient, the court shall consider:
(1) the patient's expressed preferences regarding treatment with psychoactive medication;
(2) the patient's religious beliefs;
(3) the risks and benefits, from the perspective of the patient, of taking psychoactive medication;
(4) the consequences to the patient if the psychoactive medication is not administered;
(5) the prognosis for the patient if the patient is treated with psychoactive medication;
(6) alternative, less intrusive treatments that are likely to produce the same results as treatment
with psychoactive medication; and
(7) less intrusive treatments likely to secure the patient's agreement to take the psychoactive
medication.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 574.106. Hearing and Order Authorizing Psychoactive..., TX HEALTH & S §...
(c) A hearing under this subchapter shall be conducted on the record by the probate judge or judge
with probate jurisdiction, except as provided by Subsection (d).
(d) A judge may refer a hearing to a magistrate or court-appointed associate judge who has training
regarding psychoactive medications. The magistrate or associate judge may effectuate the notice,
set hearing dates, and appoint attorneys as required in this subchapter. A record is not required if
the hearing is held by a magistrate or court-appointed associate judge.
(e) A party is entitled to a hearing de novo by the judge if an appeal of the magistrate's or associate
judge's report is filed with the court within three days after the report is issued. The hearing de novo
shall be held within 30 days of the filing of the application for an order to authorize psychoactive
medication.
(f) If a hearing or an appeal of an associate judge's or magistrate's report is to be held in a county
court in which the judge is not a licensed attorney, the proposed patient or the proposed patient's
attorney may request that the proceeding be transferred to a court with a judge who is licensed to
practice law in this state. The county judge shall transfer the case after receiving the request, and
the receiving court shall hear the case as if it had been originally filed in that court.
(g) As soon as practicable after the conclusion of the hearing, the patient is entitled to have provided
to the patient and the patient's attorney written notification of the court's determinations under this
section. The notification shall include a statement of the evidence on which the court relied and
the reasons for the court's determinations.
(h) An order entered under this section shall authorize the administration to a patient, regardless of
the patient's refusal, of one or more classes of psychoactive medications specified in the application
and consistent with the patient's diagnosis. The order shall permit an increase or decrease in a
medication's dosage, restitution of medication authorized but discontinued during the period the
order is valid, or the substitution of a medication within the same class.
(i) The classes of psychoactive medications in the order must conform to classes determined by
the department.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
§ 574.106. Hearing and Order Authorizing Psychoactive..., TX HEALTH & S §...
(j) An order issued under this section may be reauthorized or modified on the petition of a party.
The order remains in effect pending action on a petition for reauthorization or modification. For
the purpose of this subsection, “modification” means a change of a class of medication authorized
in the order.
(k) This section does not apply to a patient who receives services under an order of protective
custody under Section 574.021.
(l) For a patient described by Subsection (a-1)(2)(B), an order issued under this section:
(1) authorizes the initiation of any appropriate mental health treatment for the patient awaiting
transfer; and
(2) does not constitute authorization to retain the patient in a correctional facility for competency
restoration treatment.
Credits
Added by Acts 1993, 73rd Leg., ch. 903, § 1.08, eff. Aug. 30, 1993. Amended by Acts 1995,
74th Leg., ch. 770, § 12, eff. June 16, 1995; Acts 2005, 79th Leg., ch. 717, § 3, 4, eff. June 17,
2005; Acts 2009, 81st Leg., ch. 334, § 8, eff. Sept. 1, 2009; Acts 2009, 81st Leg., ch. 624, § 1,
eff. June 19, 2009.
V. T. C. A., Health & Safety Code § 574.106, TX HEALTH & S § 574.106
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4