J.A. v. The State of Texas--Appeal from County Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-91-188-CV

J. A.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court

McLennan County, Texas

Trial Court # MI 910219

O P I N I O N

The Mental Health Code requires that, prior to entry of an order for court-ordered temporary mental health services, the court must find that, as a result of mental illness, a person:

(i) is likely to cause serious harm to himself; or

(ii) is likely to cause serious harm to others; or

(iii) will, if not treated, continue to suffer severe and abnormal mental, emotional, or physical distress and will continue to experience deterioration of his ability to function independently and is unable to make a rational and informed decision as to whether or not to submit to treatment.

Tex. Mental Health Code Ann. art. 5547-50(b)(2) (Vernon Supp. 1991). The statute requires expert testimony and, unless waived, evidence of either a recent overt act or a continuing pattern of behavior, tending to confirm the likelihood of serious harm to the person or others or the person's distress and deterioration of ability to function. Id. at art. 5547-50(c). The evidence must be clear and convincing. Id.

Appellant asserts in point one that the evidence was insufficient to authorize the County Judge to order him to receive court-ordered temporary mental health services. Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). This is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable-doubt standard of criminal proceedings. Id. Although the proof must weigh heavier than merely the greater weight of the credible evidence, the evidence need not be unequivocal or undisputed. Id.

In reviewing an insufficient-evidence point, we must review the entire record. When the party complaining of a finding did not have the burden of proof at trial, we may set aside the finding if the trier of fact could not have reasonably found the existence of the fact to be established by clear and convincing evidence. See In Interest of L.R.M., 763 S.W.2d 64, 66 (Tex. App. Fort Worth 1989, no writ).

A psychiatrist testified that, in his opinion, Appellant was mentally ill. He further testified that, if Appellant were not treated, he would continue to suffer severe abnormal mental, emotional or physical distress, he would continue to experience deterioration of his ability to function independently, and he would be unable to make a rational and informed decision about whether to submit to treatment.

The record must also contain evidence, unless waived, of a "recent overt act or a continuing pattern of behavior . . . tending to confirm the likelihood of . . . the person's distress and deterioration of ability to function." Tex. Mental Health Code Ann. art. 5547-50(c) (Vernon Supp. 1991). The psychiatrist, who personally observed Appellant and reviewed his medical history, also testified that after he was detained Appellant constantly acted like he was hearing voices, laughed inappropriately, was withdrawn and isolated, had no desire to interact with others, lacked any desire for treatment, and refused to take medications. He further expressed the opinion that Appellant's condition was deteriorating and that Appellant would become more guarded and more paranoid. This testimony of recent overt acts by Appellant and his pattern of behavior tends to confirm the likelihood of his distress and a deterioration of his ability to function. See id. Thus, we hold that the evidence was sufficient to meet the requirements of article 5547-50(b) and (c). See id. at art. 5547-50(b), (c); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Addington, 588 S.W.2d at 570.

Appellant's second point asserts that he was denied due-process rights because article 5547-38 is vague and fails to provide a standard or degree of proof.

"In passing upon the constitutionality of a statute, we begin with a presumption of validity." See Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983). We presume "that the Legislature has not acted unreasonably or arbitrarily; and a mere difference of opinion, where reasonable minds could differ, is not a sufficient basis for striking down legislation as arbitrary or unreasonable." See id. "Legislative action, however, is not without bounds." Id.

"In substantive due process cases, the courts balance the gain to the public welfare resulting from the legislation against the severity of its effect on personal and property rights." In the Interest of B M N , 570 S.W.2d 493, 503 (Tex. Civ. App. Texarkana 1978, no writ). "A law is unconstitutional as violating due process when it is arbitrary or unreasonable, and the latter occurs when the social necessity the law is to serve is not a sufficient justification of the restriction of the liberty or rights involved." Id.

Article 5547-38 provides that the magistrate or master must find "probable cause" to order the continuation of protective custody. Tex. Mental Health Code Ann. art. 5547-38 (Vernon Supp. 1991). The concept of probable cause is well known in law. In this context, it means: Does the evidence of the facts and circumstances lead the magistrate or master to reasonably believe that the proposed patient presents a substantial risk of serious harm to himself or others? Id. Thus, we do not believe that the legislature acted arbitrarily in authorizing the temporary detention of an individual upon a finding of "probable cause" by a magistrate or master. See Sax, 648 S.W.2d at 664. Further, because the social necessity the law is to serve is a sufficient justification of the restriction of the liberty or rights involved, the act is not unreasonable. See In the Interest of B M N , 570 S.W.2d at 503.

In any event, Appellant's complaint is untimely. Any defect in the procedure leading to his confinement during the period prior to the hearing on the application for court-ordered mental health services would have resulted in his release only until the hearing on the application could be held. See Taylor v. State, 671 S.W.2d 535, 539 (Tex. App. Houston [1st Dist.] 1983, no writ). The hearing on the application incorporated all due-process requirements. See id. Thus, upon entry of the order for court-ordered mental health services, defects in the protective-custody process became moot. See id. We overrule Appellant's second point.

The judgment is affirmed.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed November 20, 1991

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