J. L. v. The State of Texas Appeal from County Court at Law No. 4 of Williamson County (memorandum opinion)

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-16-00778-CV J. L., Appellant v. The State of Texas, Appellee FROM THE COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY NO. 16-0162M, HONORABLE JOHN McMASTER, JUDGE PRESIDING MEMORANDUM OPINION J.L. appeals from the trial court’s order committing him to a mental health facility for temporary mental health services and from the order authorizing the mental health facility to administer psychoactive medication to him. In two issues, J.L. contends that the evidence was legally and factually insufficient to support these orders. We will affirm the commitment order but reverse the medication order and render judgment in J.L.’s favor as to the administration of psychoactive medication. BACKGROUND The following facts are not disputed on appeal. On October 18, 2016, J.L., an adult, voluntarily admitted himself for treatment at a hospital in Georgetown. On October 20, J.L. formally requested release. Instead of releasing him, the hospital filed an application for court-ordered temporary mental health services in the trial court. The Williamson County Attorney’s Office then filed a Motion for Order of Protective Custody, and the trial court granted the motion and set an involuntary commitment hearing. At the hearing before the trial court without a jury, Dr. Tiffany Thomure, a physician who had treated J.L., testified, as did J.L.’s father and mother. Following the hearing, the trial court signed an order of involuntary commitment for inpatient care not to exceed 90 days. In the order, the court found by clear and convincing evidence that J.L. was “likely to cause serious harm to self,” “likely to cause serious harm to others,” and “suffering severe and abnormal mental, emotional or physical distress . . . experiencing substantial mental or physical deterioration of [his] ability to function independently . . . and . . . unable to make a rational and informed decision as to [whether to] submit to treatment.” Following an additional hearing concerning the administration of psychoactive medication, the trial court signed an order authorizing the administration of medication to J.L. The court also made the following findings of fact and conclusions of law, among others: • The Patient does not have the capacity to make a decision regarding the administration of psychoactive medication. • The Patient is unable to understand the risks and benefits associated with taking the prescribed medication. • If Patient consented to taking the medication, Hospital would not allow him to take medication because he lacks capacity to consent. • Patient’s prognosis if treated with the class of psychoactive medication is fair. • Patient will continue to deteriorate if not administered the class of medication recommended by Dr. Thomure. • Dr. Thomure has considered alternatives to the administration of psychoactive medication to treat patient, but none are effective. 2 • Based on the items [enumerated in Texas Health and Safety Code section 574.106(b)], and Dr. Thomure’s testimony, the administration of psychoactive medication is the proper course of treatment for and in the best interest of Patient. This appeal followed. STANDARD OF REVIEW J.L. challenges the legal and factual sufficiency of the evidence supporting the trial court’s orders.1 To order temporary mental health services or to authorize psychoactive medication, a trial court must make certain findings by clear and convincing evidence. See Tex. Health & Safety Code §§ 574.034(a), 574.106(a-1). “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. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010) (quoting State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979) (per curiam)). “In evaluating evidence for legal sufficiency under a clear and convincing standard, we review all the evidence in the light most favorable to the finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true.” Id. (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). “We resolve disputed fact questions in favor of the finding if a reasonable factfinder could have done so, and we disregard all contrary evidence unless a reasonable factfinder could not have done so.” Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 818 (Tex. 2005)). “Evidence that merely exceeds a scintilla is not legally sufficient when the burden of proof is clear and convincing.” Id. 1 Although the 90-day period of involuntary commitment ordered by the trial court has elapsed, this case is not moot. See State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010). 3 When evaluating the factual sufficiency of the evidence under the clear and convincing standard, we view all of the evidence in a neutral light and determine whether a reasonable fact-finder could form a firm belief or conviction that a given finding was true. See In re C.H., 89 S.W.3d 17, 18–19 (Tex. 2002); In re M.T., No. 02-17-00011-CV, 2017 WL 1018596, at *5 (Tex. App.—Fort Worth Mar. 16, 2017, no pet.) (mem. op.) (per curiam). We assume that the fact-finder resolved disputed facts in favor of its finding if a reasonable person could do so, and we disregard evidence that a reasonable fact-finder could have disbelieved or found incredible. See In re J.F.C., 96 S.W.3d at 266. Evidence is factually insufficient only if a reasonable fact-finder could not have resolved the disputed evidence in favor of its finding and if that disputed evidence is so significant that the fact-finder could not reasonably have formed a firm belief or conviction that its finding was true. Id. DISCUSSION Involuntary Commitment In his first issue, J.L. contends that the evidence was legally and factually insufficient to support the trial court’s order committing him to a mental health facility for temporary mental health services. The Texas Health and Safety Code provides that a trial court may only hold a hearing on an application for court-ordered mental health services if “there are on file with the court at least two certificates of medical examination for mental illness completed by different physicians each of whom has examined the proposed patient during the preceding 30 days.” Tex. Health & Safety Code § 574.009(a). Further, “[i]f the certificates required under this section are not on file at the 4 time set for the hearing on the application, the judge shall dismiss the application and order the immediate release of the proposed patient if that person is not at liberty.” Id. § 574.009(d). A certificate must include, among other things, “a brief diagnosis of the examined person’s physical and mental condition.” Id. § 574.011(a)(4). The certificate must also indicate that it is “the examining physician’s opinion that . . . the examined person is a person with mental illness” and that at least one of three criteria is met: (1) “as a result of that illness the examined person is likely to cause serious harm to the person”; (2) “as a result of that illness the examined person is likely to cause serious harm . . . to others”; or (3) the examined person “is . . . suffering severe and abnormal mental, emotional, or physical distress . . . experiencing substantial mental or physical deterioration of the proposed patient’s ability to function independently . . . and . . . not able to make a rational and informed decision as to whether to submit to treatment.” Id. § 574.011(a)(7). The Health and Safety Code further provides: 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; 5 (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, 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. Id. § 574.034(a). In addition, “[t]o 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.” Id. § 574.034(d). We begin by addressing J.L.’s arguments concerning one of the three grounds that can support commitment: harm to others. See id. § 574.034(a)(2)(B).2 J.L. first argues that the trial court should have dismissed the application for court-ordered mental health services because the two physician certificates do not agree as to the grounds supporting commitment. See id. § 574.009(d) (providing that trial court must dismiss application if two physician certificates are not on file). J.L. points out that section seven of Dr. Thomure’s certificate asks the physician to select one or more of the three statutory grounds for commitment and provide a “detailed basis” for this opinion. Dr. Thomure only selected the third ground, indicating that J.L. “is suffering severe and abnormal mental, emotion or physical distress” and “is experiencing substantial mental or physical 2 Because our analysis of this ground is dispositive, we need not address the remaining grounds for commitment. 6 deterioration or his ability to function independently.” Dr. Thomure did not check the box indicating that J.L. “is likely to cause serious harm to others.” While J.L. is correct that Dr. Thomure did not indicate in section seven of her certificate that J.L. was likely to cause serious harm to others, she did indicate this risk in section eight, where she selected the following: “[I] am further of the opinion that the Patient presents a substantial risk of serious harm to self or others if not immediately restrained . . . .” Dr. Thomure then explained the basis for this opinion, noting that J.L. “has been irritable, argumentative [and] perseverating” and that J.L.’s family reported that he believed that his family was possessed by demons and was “out to get” him. These statements indicate that Dr. Thomure opined that J.L. was likely to cause serious harm to others. J.L. has not cited any authority, and we are not aware of any, requiring that the physician certificates appear in a certain format with specified sections. Instead, the statute merely requires that the certificate “must include” certain information. See id. § 574.011(a). Because the second physician certificate, which was completed by Dr. John Bouras, also indicated that J.L. “is likely to cause serious harm to others,” the two certificates agreed as to this ground for commitment. Therefore, we cannot conclude that the trial court should have dismissed the application before holding a hearing.3 J.L. also argues that Dr. Thomure, the only expert that the State called at the hearing, “never testified unambiguously that J.L. was likely to cause serious harm to others.” During the hearing, Dr. Thomure provided the following testimony relevant to this issue: 3 Because both certificates indicate that J.L. was likely to cause serious harm to others, we need not reach the question of whether the trial court could have held a hearing if the two certificates did not agree on a ground for commitment. 7 Dr. Thomure: So when I first saw [J.L.] when he came in he presented with several mood symptoms. He was very irritable, he was very argumentative, he was yelling, he was irrational . . . . He was also very paranoid. He was threatening people. *** Assistant County Attorney: As a result of [J.L.’s] mental illness, is he likely to cause serious harm to himself? Dr. Thomure: I believe so, the potential is there, yes. Assistant County Attorney: Does a recent overt act or continuing pattern of behavior tend to confirm the likelihood of him doing so? Dr. Thomure: Based on collateral information from his family, yes. *** Dr. Thomure: So what the family had reported, they reported pretty significant safety concerns to us. They said that he had had a history of marijuana use, K2 use, and very erratic behaviors, violence. He punched holes in walls, broken a refrigerator. He had threatened to harm them. There’s a young daughter, she’s eight years old, that’s in the house with mom, mom did not feel safe with [J.L.] being in the home. His dad reported that he has mentioned hearing voices, that he believed they were demons. That he had the ability to control the wind. That he could read peoples’ minds. *** Dr. Thomure: The family is worried that he will be homeless because he was violent at his grandmother’s house, so he cannot return there. *** Assistant County Attorney: Have you received any input from the family that reveals that they are threatened by him? Dr. Thomure: Yes. *** Assistant County Attorney: And if released now, do you believe that the patient is likely to cause serious harm to others or himself? 8 Dr. Thomure: I believe he’s at risk for that, yes. Dr. Thomure also testified that J.L. never harmed anyone at the hospital and never threatened to cause bodily injury to any specific person while at the hospital and that no one at the hospital observed “any violent outbreaks” from J.L. In addition, the following exchange took place: J.L.’s Attorney: My client’s not a substantial risk to himself or others based on what you observed in the hospital during these past three weeks; is that correct? Dr. Thomure: Correct. We recognize that Dr. Thomure’s testimony was not as direct or clear as it could have been. Nevertheless, we also recognize that the trial court is “best able to observe and assess the witnesses’ demeanor and credibility, and to sense the forces, powers, and influences that may not be apparent from merely reading the record on appeal.” Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.—Austin 2014, no pet.) (internal quotation marks omitted). Dr. Thomure did affirm that J.L. posed a substantial risk to others, and she supported this opinion by describing her first-hand observations of J.L. as well as reports from family members concerning violence against objects and threats to family members, as well as delusions (such as demon possession) that could increase the likelihood that J.L. would try to harm those around him. Furthermore, although Dr. Thomure agreed that J.L. was “not a substantial risk to himself or others based on what [she] observed in the hospital,” Dr. Thomure also relied on reports from family members. J.L. has not cited any authority, and we are not aware of any, requiring a physician’s opinion in a commitment proceeding to be based solely on personal observation without any reference to information from other sources. 9 In addition to Dr. Thomure, J.L.’s parents also testified at the commitment hearing. Their testimony includes the following: J.L.’s Father: In the past he has punched a hole in [J.L.’s grandmother’s] wall. He’s stolen money from her. The last time that he was there he just about ripped the door off the refrigerator. I believe he was having trouble getting something in the refrigerator and was upset that it wouldn’t go, so in a fit of anger he just about took the door off the refrigerator. *** Assistant County Attorney: Has he been physically violent recently? J.L.’s Father: Yes. He—the reason that he and I were in the car coming back from New Mexico was actually early, we were taking a trip out to see [J.L.’s] younger brother, my younger son, in New Mexico . . . . [J.L.] ended up getting in a fight with his younger brother. And on the way home, he didn’t actually fight with me, but he did threaten to gouge my eyes out. Assistant Count Attorney: Do you believe your son is likely to harm someone if he’s released today? J.L.’s Father: I believe that there is a distinct possibly that he could do that. *** Assistant County Attorney: Are you aware if he has a place to go if he’s released? J.L.’s Father: I do know that nobody in my family will keep him. Everyone is afraid of him. *** Assistant County Attorney: Has he been physically violent in the past? J.L.’s Mother: Yes. Assistant County Attorney: Can you explain? 10 J.L.’s Mother: He lived with me from, the current year, January through the middle of July, when we got into an argument and he screamed and throwing [sic] things and yelling. *** Assistant County Attorney: And do you believe that he is capable of harming others if he were to be released? J.L.’s Mother: Yes. Assistant County Attorney: Do you think it’s—and what do you base that on? J.L.’s Mother: His violent outburst, feeling he can see and hear things. Given the testimony of Dr. Thomure and J.L.’s parents, we conclude that the trial court could have reasonably determined, based on clear and convincing evidence, that J.L. suffered from mental illness, that as a result of his mental illness he was likely to cause serious harm to others, and that J.L. committed a recent overt act or a continuing pattern of behavior that tended to confirm the likelihood of serious harm to others. Moreover, we conclude that a reasonable fact-finder could have resolved the disputed evidence in favor of its finding and that disputed evidence was not so significant that the fact-finder could not reasonably have formed a firm belief or conviction that its finding was true. Therefore, we conclude that the evidence was legally and factually sufficient to support the trial court’s commitment order, and we overrule J.L.’s first issue. Medication In his second issue, J.L. contends that the evidence was legally and factually insufficient to support the trial court’s order authorizing the mental health facility to administer psychoactive medication to him. 11 A trial 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.” Tex. Health & Safety Code § 574.106(a). As relevant here, the Health and Safety Code also provides that the court “may issue an order under this section only if the court finds by clear and convincing evidence after the hearing . . . 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.” Id. § 574.106(a-1)(1). The statute defines “capacity” as “a patient’s ability to: (A) understand the nature and consequences of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment; and (B) make a decision whether to undergo the proposed treatment.” Id. § 574.101(1). At the hearing on the application for psychoactive medications, Dr. Thomure was the only witness to testify. During her testimony, the following exchange occurred: Assistant County Attorney: Do you believe that the patient has the capacity to make a decision regarding the administration of psychoactive medications? Dr. Thomure: I believe that he has limited insight into the medications and the reason for them. Assistant County Attorney: Do you believe that the patient lacks the capacity to make a decision, so in other words, is he able to understand the risks and benefits associated with taking the medication? Dr. Thomure: I believe that he—no. 12 Assistant County Attorney: And at this point in time, since you’re saying he doesn’t have the capacity or understand the risks and benefits, if he were to consent to even taking the medications at this point in time, as a professional would you allow him to even take the medications without a court order? Dr. Thomure: No. Assistant County Attorney: And have you determined that the administration of psychoactive medications is in the proper course of treatment for and in the best interest of the proposed patient? Dr. Thomure: Yes. On cross-examination, however, Dr. Thomure gave the following testimony: J.L.’s Attorney: Doctor, during the hearing we had today just before this one, you testified that my client’s associations were intact and his judgment was fair; is that correct? Dr. Thomure: Yes. J.L.’s Attorney: You still hold to the statement you testified to just moments ago? Dr. Thomure: I think that he needs—I think in order for him to improve, I think medications are going to be a big part of that. So this is a bit of a gray area, so I think that—obviously I’ve been wanting him to take medications and he would have improved. He’s been given opportunity to take them voluntarily and he doesn’t want to. I think that he may have limited insight into his mental illness, and so the recommendation is that he does take medication. J.L.’s Attorney: But you agree with me that you testified moments ago that his associations are intact; is that correct? Dr. Thomure: Correct. J.L.’s Attorney: And that his judgment is fair; is that correct? Dr. Thomure: Correct. 13 J.L.’s Attorney: When I asked you earlier today about whether he has, because of his intact associations and fair judgment, that provides him with adequate decision-making skills, you testified yes; is that correct? Dr. Thomure: Yes. J.L.’s Attorney: So you’re not changing that now? Dr. Thomure: No. J.L.’s Attorney: And you believe that he does have the ability to make proper decisions? Dr. Thomure: Yes. J.L.’s Attorney: And even though you state that you believe that he has the capacity to make decisions, you’re still wanting to put him on an antipsychotic medication; is that correct? Dr. Thomure: Correct. J.L.’s Attorney: Wanting to force that? Dr. Thomure: Correct. The trial court found that J.L. “does not have the capacity to make a decision regarding the administration of psychoactive medication” and that J.L. “is unable to understand the risks and benefits associated with taking the prescribed medication.” However, we conclude that these findings are not supported by sufficient evidence. Although Dr. Thomure did testify that J.L. “has limited insight into the medications and the reason for them” and that J.L. is not able “to understand the risks and benefits associated with taking the medication,” these responses were conclusory and unsupported by factual bases. Dr. Thomure did not explain how she determined that J.L. lacked the capacity to make a decision regarding his treatment. Even in an ordinary civil 14 case, conclusory expert testimony constitutes no evidence. See City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009) (“Bare, baseless opinions will not support a judgment even if there is no objection to their admission in evidence.”); id. (“We held that a party may complain that conclusory opinions are legally insufficient evidence to support a judgment even if the party did not object to the admission of the testimony.”) (citing Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004)); see also Natural Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156 (Tex. 2012) (“If an expert ‘br[ings] to court little more than his credentials and a subjective opinion,’ his testimony will not support a judgment.”) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997)); Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP, 520 S.W.3d 145, 160 (Tex. App.—Austin 2017, pet. filed) (“Under a legal-sufficiency analysis, an expert’s opinion may constitute no more than a mere scintilla of evidence if the opinion is not reliable under the same standards that govern admissibility, is speculative or conclusory on its face, or assumes facts contrary to the undisputed facts.”); Gardner v. Abbott, 414 S.W.3d 369, 385 (Tex. App.—Austin 2013, no pet.) (“[E]ven without an objection, conclusory opinion testimony is not evidence that could support a judgment.”). Here, where the heightened standard of proof by clear and convincing evidence applies, the inadequacy of conclusory expert testimony is even more apparent. See In re P.W., No. 02-16-00351-CV, 2016 WL 6677941, at *4 (Tex. App.—Fort Worth Nov. 10, 2016, no pet.) (mem. op.) (“The State cannot meet its burden of proof without expert opinions and recommendations supported by a showing of the factual bases on which they are grounded.”) (internal quotation marks omitted); State ex rel. H.S., 484 S.W.3d 546, 550–51 (Tex. App.—Texarkana 2016, no pet.) (“Because an expert diagnosis, without more, is 15 insufficient to confine a patient for compulsory treatment, the State must present evidence of the behavior of the proposed patient that provides the factual basis for the expert opinion.”); State ex rel. P.H., No. 12-11-00009-CV, 2011 WL 2465459, at *2 (Tex. App.—Tyler June 22, 2011, no pet.) (mem. op.) (“Expert opinions and recommendations must be supported by a showing of the factual bases on which they are grounded. A bald diagnosis alone is insufficient.”) (citation omitted); Mezick v. State, 920 S.W.2d 427, 430 (Tex. App.—Houston [1st Dist.] 1996, no writ) (“We acknowledge that expert diagnosis alone is not sufficient to confine a patient for compulsory treatment. The expert opinions and recommendations must be supported by a showing of the factual bases on which they are grounded.”) (citation omitted). Dr. Thomure merely affirmed the statutory requirements for the administration of psychoactive medication. See T.G. v. State, 7 S.W.3d 248, 252 (Tex. App.—Dallas 1999, no pet.) (“Expert opinions and recommendations must be supported by a showing of the factual bases on which they are grounded. Here, Dr. Methner did little more than testify to the conclusions required by the statute.”) (citation omitted); see also J.M. v. State, 178 S.W.3d 185, 193 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (“[A]n expert opinion recommending involuntary commitment must be supported by the factual bases on which it is grounded and not simply recite the statutory criteria. That is, the expert should describe the patient’s specific behaviors on which his or her opinion is based.”) (citation omitted). Indeed, instead of providing a factual basis for her opinions, Dr. Thomure undercut her conclusory opinions by affirming on cross-examination that J.L.’s “associations are intact,” that J.L.’s “judgment is fair,” and that J.L. had “adequate decision-making skills,” “the ability to make proper decisions,” and “the capacity to make decisions.” Cf. Tex. Health & Safety 16 Code § 574.106(a-1)(1) (requiring court to find by clear and convincing evidence that patient “lacks the capacity to make a decision regarding the administration of the proposed medication” before authorizing administration of psychoactive medication). In addition, the record contains no indication that the State presented any evidence concerning “the risks and benefits, from the perspective of the patient, of taking psychoactive medication,” which is one of several factors that a court “shall consider” when determining whether the proposed medication is in the patient’s best interest. See id. § 574.106(b)(3). For example, the State did not present any evidence concerning possible side effects from the proposed medication and whether J.L. understood those possible side effects. Given that the State’s only evidence at the medication hearing was Dr. Thomure’s conclusory and self-contradictory testimony that did not outline its factual bases and did not discuss the potential risks and benefits of the proposed medication from J.L.’s perspective, we conclude, viewing all of the evidence in the light most favorable to the trial court’s order, that no reasonable fact-finder could have formed a firm belief or conviction that J.L. lacked the capacity to make a decision regarding the administration of the proposed psychoactive medication. Accordingly, we conclude that the evidence was legally insufficient to support the trial court’s medication order, and we sustain J.L.’s second issue.4 4 Because we conclude that the evidence was legally insufficient, we need not address J.L.’s factual sufficiency arguments. 17 CONCLUSION We affirm the trial court’s order committing J.L. to a mental health facility for temporary mental health services for 90 days. We reverse the trial court’s order authorizing the mental health facility to administer psychoactive medication to J.L., and we render judgment in J.L.’s favor as to the medication order. See In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth 2006, pet. denied) (noting that appellate court must render judgment in appellant’s favor if it concludes that the evidence was legally insufficient to support the trial court’s order authorizing the administration of psychoactive medication); see also In re J.F.C., 96 S.W.3d at 266 (stating that rendition of judgment is required “if there is legally insufficient evidence”). __________________________________________ Scott K. Field, Justice Before Chief Justice Rose, Justices Field and Bourland Affirmed in Part, Reversed and Rendered in Part Filed: October 3, 2017 18

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