## NO. 12

- 19

- 00160

- CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

THE STATE OF TEXAS F OR THE

BEST INTEREST AND PR OTECTION

OF T.M. §
§
§ APPEAL FROM THE

COUNTY COURT AT LAW
CHEROKEE COUNTY, TEX AS

MEMORANDUM OPINION T.M. appeals from an order authorizing the administration of psychoactive medication. In three issues, he challenges the denial of his motion for continuance, the denial of his request for a jury trial, and the legal and factual sufficiency of the evidenc e. We affirm

.

B ACKGROUND
T.M. was committed to Rusk State Hospital pursuant to an order for in patient mental health services under Chapter 46C of the code of criminal procedure, not guilty by reason of insanity. When T.M. refused to voluntarily take p sychoactive medication, t he State petitioned the court for an order to administer psychoactive medications to T.M. On April 12, 2019, Dr. Jill Pontius
, T.M.’s treating physician, s igned an application to order the administration of psychoactive
medication s. After a hearing, t he trial court signed an order authorizing the administration of psychoactive medication

– forensic, which found (1) the allegations in the application are true and correct and supported by clear and convincing evidence, and (2) T.M. lacks the capacity to make a decision regarding the administration of said medication and treatment with the proposed
medication is in T.M.’s best interest. The trial court authorized the Texas Department of State Health Services to administer antidepress ants, antipsychotics, mood stabilizers, anxiolytics/sedative/hypnotics, and miscellaneous drugs. This appeal followed.2 S UFFICIENCY In his third issue
, T.M. challenges the legal and factual sufficiency of the evidence to support the trial cour t’ s order to administer psychoactive medication. S pecifically, he contends that the State failed to prove, by clear and convincing evidence, that he lacked the capacity to make a decision regarding administration of medication, and treatment with the propos ed medications
was in his best interest. We address this issue first because, if granted, it would afford the greatest
relief.
Standard of Review Texas law requires that orders authorizing administration of psychoactive medication be supported by clear and convincing evidence. See T EX

. H EALTH & S AFETY C ODE A NN

. § 574.106(a

– 1) (West 2017 ). Clear and convincing evidence is that 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
to be established. State v. Addington , 588 S.W.2d 569, 570 (Tex. 1979) (per curiam). This intermediate standard falls between the preponderance standard of civil proceedings and the
reasonable doubt standard of criminal proceedings. Id

. ; In re G.M. , 596 S.W.2d 846, 847 (Tex. 1980)

. While the proof must weigh heavier than merely the greater weight of the credible evidence, there is no requirement that the evi dence be unequivocal or undisputed. Addington , 588
S.W.2d at 570

. This higher burden of proof elevates the appellate standard of legal sufficiency
review. Diamond Shamrock Ref. Co ., L.P. v. Hall , 168 S.W.3d 164, 170 (Tex. 2005) ; Sw. Bell Tel. Co. v. Garza , 164 S.W.3d 607, 622, 625 (Tex. 2004)

. In reviewing a legal sufficiency claim, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002) . When reviewing factual sufficiency, we must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing and then determine whether, based on the entire record, a fact finder could reasonably form a firm conviction or belief that the allegations in the application were proven. Id

. The reviewing c ourt must consider whether the disputed evidence is such that a reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. Id

. If the disputed evidence is so significant that a fact finder could not reasonably have
f

ormed a firm belief in the finding, the evidence is factually insufficient. Id

.3 Applicable Law A trial court may issue an order authorizing the administration of one or more classes of psychoactive medications to a patient who is under a court order to receive inpatient mental health
services. T EX

. H EALTH & S AFETY C ODE A NN

. § 574.106(a)(1) . The court may issue an order under this section only if, after a hearing, it finds by clear and convincing evidence that (1) the patient
lacks the capacity to make a decision regarding the administration of the proposed medication, and (2) treatment with the proposed medication is in the best interest of the patient. Id

. § 574.106(a

– 1)(1)

. “Capacity” refers to a patient ’ s ability to (1) understand the nature and consequences of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment, and (2) make a decision whether to undergo the proposed treatment. Id

. § 574.101(1) (West 2017 ). A patient does not have the capacity to make a decision regarding the administration of medications if the patient does not understand the nature of his mental illness or the necessity of the
medications. See A.S. v. State , 286 S.W.3d 69, 73 (Tex. App.

– Dallas 2009, no pet.)

. In making its finding that treatment with the proposed medication is in the best interest of the patient, the trial court shall consider (1) the patient ’ s expressed prefere nces 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 medicati on is not administered, (5) the prognosis for the patient if
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

trea tments likely to secure the patient ’ s agreement to take the psychoactive medication

. T EX

. H EALTH & S AFETY C ODE A NN

. § 574.106(b)

. Hearing on Application Pontius testified that she is T.M.’s treating physician and that he is under a court order pursuant to Chapter 46C of the code of criminal procedure, having been found not guilty
, by reason of insanity , of murdering his stepfather . She confirmed that T.M. suffers from Bipolar I disorder, the most recent episode manic with psychotic symptoms. She discussed the need for psychoactive medications with T.M., but he verbally refused to accept the medication. He accepted other medications, but not antipsychotic medications. She believed that T.M. understands the
medication s , side effects , and indications, but does not have insight into his need for the4 medication. She explained that he denies having a mental illness and does not want any medication
or medical interventions. He complained of various side effects to certain medications, s uch as emotional numbing, a physical sensation in his nervous system, slow thinking, hair loss, weight gain, motor restlessness sensation, as well as long term risks. He express ed no religious objections. Regarding constitutional objections, he wanted fr eedom to control what substances enter his body.
She testified that T.M. has been previously hospitalized and has a history of aggression toward others, “infrequent but highly lethal violence.” She identified an instance on April 5, 2019, when he experienced escalating anger and frightened the hospital staff to the extent they called for
back

- up. T.M. had been shadowboxing, kicking an upright support, and making threats toward

a nother patient . The staff recognized the potential for harm and escorted the patient inside the building, but T.M. followed and told a nurse that he was not “going to be stopped

. ” The n urse described T.M. as having a rage

- filled tone and an intense look. The staff were so concerned for
the patient ’s safety that they placed him in the nurse’s station until he could receive one

- to

- one observation for his safety. During debriefing, the st aff expressed concern and an ongoing threat

to the patient

. They indicated never having seen the type of rage displayed by T.M. Pontius acknowledged that it was un common for T.M. to experience these incidents. She stated that T.M.
has had no behavioral m anagement episodes since being informed of the plan to pursue a court
order. According to Pontius, T.M. ’s prognosis is improved if treated with the proposed
medication s . She noted that he was discharged twice previously for out

- patient treatment , but w as

r eadmitted upon stopping the medication. During one discharge, he was prescribed an injection for long

- acting Abilify, which he stopped after fleeing the country. Pontius stated that T.M. has a history of noncompliance with medications. T.M. told her that he “cheeked” the oral medication the entire year before being discharged and wanted to prove that he did not need medication. Thus, Pontius recommended that T.M. be on a long

- ac ting injection form of medication. She expressed
concern that the lack o f treatment would lead to a high risk of aggression toward staff or patients in the hospital and prolonged hospitalization.
Pontius believed the medications are the proper course of treatment and in T.M.’s best
interest. She did not believe that less intrusive treatments would be as effective. Pontius planned

to use the lowest effective dosage of any medications administered and T.M. would be monitored
while on the medications. She testified that for his mental stability, he will need an ongoing5 medication regimen to prevent psychotic relapse. Pontius acknowledged that T.M. may possibly
benefit from psycho therapy, but therapy is not in itself a rational approach to his treatment. She wanted to pursue treatment to keep the staff and patients at the hospital safe because she could not predict T.M.’s next aggressive episode. Pontius explained that T.M. is not currently experiencing psychotic symptoms, but has irrational thinking in terms of weighing the risks and benefits of treatment for Bipola r disorder and lacks insight into his illness and the need for ongoing treatment. Because of his underlying psychiatric diagnosis, she was concerned that T.M. is at risk for impulsive, aggressive behavior, which he showed a glimpse of on April 5. Because of h is potential for lethal violence, given his history, she felt th at lithium therapy is not in itself effective and she needs the option of FDA indicated atypical antipsychotic medicine, which has been effective for T.M. previously. But, she
would not administer any medication that is not in his best interest and would administer
medications that will be beneficial with the least amount of side effects. She doubted T.M. could be discharged without the antipsychotic medications. Regarding the April 5 incident, T.M. testified that the patient had instances of violent outbursts and aggression, and attacked T.M.’s elderly roommate on three separate occasions. He felt an “overwhelming need” to protect his roommate. On April 5, he was working out when he saw the patient and decided to “let him know how I felt about him.” T.M. called the patient a coward and stated that he did not like what the patient was doing. He admitted feeling angry, but denied being aggressive toward , v erbally threatening
, or phys ically assaulting the patient. As he walked away, he heard steps behind him and turned to see the patient charging him. The patient was restrained and escorted inside. After T.M. finished working out, he wanted to return to his
unit. He believed it was wrong to confront the patient, but did not believe the incident warranted antipsychotic medication, as no one suffered harm

. According to T.M., the hospital is a stressful environment and people have disagreements. He has since made amends with the patie nt. T.M. acknowledged that this is his third hospitalization at Rusk State Hospital
, and he has been hospitalized approximately three times outside of Rusk. He was hospitalized shortly before the murder for an anxiety disorder. Regarding the murder, he explained that he became concerned about some activity between his young sister and his st epfather, which he reported to the police, who suggested that T.M. seek help. He agreed and was prescribed anxiety medication. He testified that he had no ill will toward his stepfather and that he subsequently learned that benzodiazepines6 are linked to instance s of aggression and violence. T.M. stated that he has never heard voices. He acknowledged leaving the country to avoid court orders that required he take medication. He testified to contemplating suicide and described leaving the country as a “l ast resort” to escape the pain from the medication.
T.M. testified that he last had a violent episode when people tried to inject him with antipsychotic medication, but he explained that this was in defense of himself. He testified that he
still takes li thium and that an antipsychotic caused “great pain and suffering” in the past. He understood that Bipolar disorder is treated with mood stabilizers and certain antipsychotics. And he knew he needed to take medication for the Bipolar disorder. W hile he h ad no objection to other medications, he did not feel any need for antipsychotics because he has been treated with antipsychotic medications in the past and they do not work for him. He described them as counterproductive and painful , a “living nightmare

. ” Specifically, he experienced akathisia, which
he described as restlessness in his legs, arms, and upper body. According to T.M., aripiprazole, or Abilify, is associated with akathisia, which causes people to commit suicide. The side effects
, including cognitive dysfunction, intensified when his doctor increased the dosage. He wanted the doctor to work with him on the appropriate medication for his individual needs. He acknowledged that taking medication is in his best interest, but that it is importa nt to choose the right medications. Jennifer Thomason, a former nurse at Rusk and T.M.’s friend, testified that T.M. was violent when taking Abilify, but was not aggressive when taking lithium and Depakote. She believed that Abilify would increase T.M.’s side effects and that other medications would be more effective. Although she believed that T.M. sometimes has anger issues, she did not believe T.M. poses a threat to anyone or that his anger justifies an injection that causes him severe pain. Analysi s T.M. d oes not dispute that the evidence is legally and factually sufficient to show that he is under a court order to receive inpatient mental health services. Thus, we will consider whether the evidence support s finding s that he lacked the capacity to make a decision regarding the administration of psychoactive medications and that treatment with the proposed medications i s in
his best interest. See T EX

. H EALT H & S AFETY C ODE A NN

. § 574.106(a

- 1). Citing this Court’s
decision s in State ex. rel. E.G. , 249 S.W.3d 728 (Tex. App.

– Tyler 2008, no pet.) and State ex. rel.
B.D. , No. 12

- 17

- 00174

- CV, 2017 WL 4161297 (Tex. App.

– Tyler Sept. 20, 2017 , no pet.) (mem. op.), T.M. maintains that Pontius offered nothing more than conclusory testimony, having merely7 answered “yes” in response to the State’s questioning regarding best interest, without any
elaboration

. He classifies Pontius’s testimony as mere “perfu nctory recitations.”
In E.G. , the only evidence regarding the appellant ’ s best interest was a conclusory statement in the application by the treating physician that the medications sought to be administered were in the appellant ’ s best interest. Id

. at 731

. We held that the trial court erred in entering its order to administer psychoactive medication , in part, because the treating physician offered no testimony on the subject of whether the administration of the proposed medications was in the best interest of the appellant. See id

. at 731

– 32

. We explained that a conclusory statement in the application, absent testimony from the physician at the hearing, cannot 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. Id

. at 732. We also noted that the Texas Health and Safety Code does not authorize the trial court to base its findings solely on the treating physician ’ s application, because pleadings, such as the physician ’ s application, are not evidence that the statutory standard ha s been met. Id

. at 731 ; see T EX

. H EALTH & S AFETY C ODE A NN

. §§ 574.031(e) (West 2017 ) (stating that Texas Rules of Evidence apply to hearing for court ordered mental health services unless rules are inconsistent with this subtitle), 574. 101

– .110 (West 2017 ); In re E.T. , 137 S.W.3d 698, 700 (Tex. App.

– San Antonio 2004, no pet.) ; see also Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer
, 904 S.W.2d 656, 660 (Tex. 1995) (noting that, generally, pleadings are not competent evidence, even if sworn and verified). B ecause the record only contained the physician ’ s conclusory statement in the application, evidence that the administration of the medications would be in the appellant ’ s best interest was insufficient. E.G. , 249 S.W.3d at 731

– 32

. In B.D. , the only evidence regarding B.D.’s best interest came in the form of a conclusory
statement from Dr. Stephen Poplar. B.D. , 2017 WL 4161297 , at *3. At the hearing, Poplar
testified that B.D. suffer ed from schizoaffective disorder and psychosis
, his thinking is illogical and disoriented, he suffer ed from paranoia and delusions , and he verbally refused to take the prescribed medicat ion. Id . He affirmed that all of the statements made in his application were true, and his application was entered into evidence. Id

. When asked whether he believed B.D. lacked capacity to decide whether to take his medication, Poplar said
, “I do.” Id

. When asked if
B.D. was unable to weigh the risks and benefits of medication, he answered, “yes.” Id

. In response to whether the benefits of the medication outweigh the risks, Poplar answered “yes.” Id . He also answered “yes” when asked if the medications were in B.D.’s best interest. Id

. When asked if8 B.D. would regain competency faster if the medications were used, he again answered “yes.” Id

. When t he State aske d if any of the medications would interfere with B.D.’s ability to confer with his attorney in the underlying criminal charge, Poplar replied , “ [T]he goal is for it to not. I don ’ t believe it will, but if it should, then we would address that potentially w ith other medications or reduce the dose of the offending medication[.] ” Id

. B.D.’s counsel asked Poplar if B.D. complained of any side effects, and Poplar answered that B.D. complained that he was being given heroin and being drugged. Id . C ounsel also asked if B.D. had any religious or constitutional objections to his medication, to which Poplar answered “no.” Id . B.D. was not present at the hearing, and gave no testimony. Id

. Based on this evidence, we conclude d that the trial court erred in granting the order to administer psychoactive medication to B.D

. Id . We explained that Poplar ’ s testimony regarding
B.D.’s best interest was merely a perfunctory recitation of the conclusory statements made in his application. Id

. He offered no testimony as to the consequences to B.D. of not administering the medications, his prognosis if the medication is administered, or the alternatives to treatment with psychoactive medicatio n

. Id

. We also noted that t he trial court could not rely solely on the State ’ s application. Id . For these reasons, we held that the evidence presented at the hearing could not have produced in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations to be established ; thus, the evidence wa s legally insufficient to support the trial court ’ s order. Id

. In the present case, the trial court’s findings do not rest on conclusory statements in an application to administer psychoactive medication. In her application, Pontius stated that T.M. has been diagnosed with Bipolar I disorder

– manic, severe, with psychotic symptoms, and verbally refused to take medication voluntarily. The proposed method for administ ering medication included oral and intramuscular, the customary methods for administering the medications.
Pontius believed that T.M. lacked the capacity to make a decision regarding the administration of psychoactive medication because he “lacks insight into the nature of his mental illness and the risk for psychotic relapse if not maintained on medication.” She determined that medication is the proper course of treatment and if T.M. is so treated, his prognosis is improved, including a lower risk for ag gression and an improved chance of discharge to the community. If not so treated, the consequences would be prolonged hospitalization and aggression toward others. She stated that medical alternatives would not be as effective as psychoactive medication, she considered less9 intrusive treatments, and psychoactive medication outweighs the risks in relation to present medical treatment and T.M.’s best interest. She asked the trial court to compel T.M. to take medications from the following classes: antidepr essants, antipsychotics, anxiolytics/sedatives/hypnotics, mood stabilizers, and miscellaneous drugs, such as clonidine.
In addition to the statements in her application, Pontius testified that she is T.M.’s treating physician, he is under a court order for inpatient mental health services, and he suffers from Bipolar I disorder, the most recent episode manic with psychotic symptoms

. She sought to administer medication through oral and intramuscular methods, i.e., the customary methods of administration.
A ccording to Pontius
, T.M. verbally refused to voluntarily take antipsychotic medication. She
believed that T.M. lacked insight into his illness and the need for certain medication , as he claims
to have no mental illness and has irrational thinking regarding the weighing of risks and benefits
of treatment

. She noted that T.M. has been hospitalized on numerous occasions, has a history of aggression, left the country to avoid taking antipsychotic medications, admitted to h aving “cheeked” oral medication, and had no behavioral episodes once being informed of the State’s intent to pursue a court order. In her opinion, lithium therapy alone is insufficient given T.M.’s history for lethal violence.
She believed that medicati on was the proper course of treatment for T.M. , that T.M.’s prognosis with medication is “ much improved
, ” and that he needs an ongoing medication regimen to prevent psychotic relapse. Pontius explained that T.M.’s taking of antipsychotic medication in
the past led to his discharge from hospitalization. If not treated with medication, she testified that
T.M. is at a high risk of aggression and it is doubtful he would be released

. Pontius considered less intrusive treatments, but testified that none would b e as effective as psychoactive medication.
Based on Pontius’s testimony at the hearing, we simply cannot conclude that the trial court’s order is based solely on the application or that Pontius’s testimony is tantamount to the type of perfunctory testimony that precludes such an order

. Nevertheless, T.M. further contends
that portions of Pontius’s testimony conflict with the application and other testimony offered at the hearing : (1) she testified to having good conversations with T.M. about medications and treatment and that he understood these conversations, while the application states he lacks insight into his illness, (2) she acknowledged T.M.’s acceptance of other medicatio ns, but not Abilify, (3) she acknowledged that T.M. is knowledgeable regarding his body functioning and side effects, (4) T.M.’s testimony demonstrates insight , including his stated objections to taking the medications,10 his description of side effects, his acknowledgment that he does need medication, and his desire that doctors work with him on the appropriate medication , and (5) Thomason ’s testimony
contradicts the State’s evidence

. However, t he trier of fact is the exclusive judge of
the credibility of t he witnesses and the weight to be given their testimony. State ex. rel. R.L. , No.
12

- 08

- 00207

- CV, 2008 WL 4757006, at *5 (Tex. App.

— Tyler Oct. 31, 2008, no pet.) (mem. op.).
In this role , the trial court was entitled to resolve any conflicts in the evide nce in favor of the State and to credit Pontius’s testimony over that of T.M. and Thomason

. See J.F.C. , 96 S.W.3d at 266

. T he right to refuse treatment, and the right of patients, generally, to direct the course of their treatment are important. Although by its very nature, involuntary treatment is against the stated wishes of a patient, the trial court was not required to si mply defer to T.M.’s beliefs or preferences when determining whether to order the administration of psychoactive medication.
See T EX

. H EALTH & S AFETY C ODE A NN

. § 574.106(b)

. Accordingly, viewing all the evidence in the light most favorable to the trial court ’ s findings, we conclude that a reasonable trier of fact
could have formed a firm belief or conviction that its findings were true

. See id . § 574.106(a

– 1);
see also J.F.C. , 96 S.W.3d at 266. Reviewing the record as a whole, we also conclude that the conflicting evidence is not so significant that a reasonable trier of fact could not have reconciled the evidence in favor of its finding. See J.F.C. , 96 S.W.3d at 266. The trial court could have
formed a firm belief or conviction that T.M. lacked the capacity to make a decision regarding the administration of psychoactive medications and that the administration of psychoactive medication
is in T.M.’s best interest

. See T EX

. H EALTH & S AFETY C ODE A NN

. § 574.106(a

– 1). Because the evidence is legally and factually sufficient to support the trial court ’ s order, we overrule T.M.’s
third issue

.

M OTION FOR C ONTINUANCE In his first issue, T.M. challenges the denial of his motion for continuance for purposes of retaining counsel and experts. The State maintains that T.M.’s first issue is not preserved for appellate review. We agree. No application for a continuance shall be granted except for sufficient cause supported by affidavit, by consent of the parties, or by operation of law. T EX

. R. C IV

. P. 251. An oral motion for continuance, unsupported by affidavit or the State’s consent, fails to satisfy Rule 251 and does not preserve error. See Matter of Marriage of Harrison , 557 S.W.3 d 99, 118 (Tex. App.

—11 Houston [14th Dist.] 2018, pet. denied); see also Phifer v. Nacogdoches Cty. Cent. Appraisal
Dist. , 45 S.W.3d 159, 173 (Tex. pp.

— Tyler 2000, pet. denied). When Rule 251’s provisi ons are
not satisfied, we presume that the trial court di d not abuse its discretion in denying a
continuance. Phifer , 45 S.W.3d at 173; see In Interest of S.M.H. , 523 S.W.3d 783, 797 (Tex.
A pp.

— Houston [14th Dist.] 2017, no pet.).
T he State filed its application on April 12, 2019, and T.M. states that he receiv ed a copy that afternoon

. T he hearing occurred on April 16. At the beginning of the hearing, T.M. moved for a continuance “on the grounds of being given more time to obtain non

- appointed counsel of his own choosing as well as expert witnesses that might contradict the experts of the State[.]” As an exhibit, T.M. p rovided the trial court with a letter that states, in pertinent part, that the “motion brought forth against me today is a direct attack on my liberty interests...I am humbly requesting that the court not deny me due process.” The trial court denied the mot ion for continuance

. To the extent T.M.’s letter can be construed as a written motion for continuance, it is not supported by affidavit or consent of the parties. See T EX

. R. C IV

. P. 251. The same is true to the extent he urged an oral motion for cont inuance. See id . Nor does T.M. argue that a continuance should have been granted by operation of law. See id . Because T.M. made no motion for continuance that satisfied the requirements of Rule 251, we presume the trial court did not abuse
its discreti on by denying the motion for continuance. 1 S ee Harrison , 557 S.W.3d at 118; see also
S.M.H. , 523 S.W.3d at 797 ; Phifer , 45 S.W.3d at 173

. We overrule issue one.

R EQUEST FOR J URY T RIAL In his second issue, T.M. challenges the trial court’s rejection of his request for a jury trial.

1 We also note that the hearing on the application “ s hall be held not later than 30 days after the filing of the application for the order to authorize psychoactive medication. ” T EX

. H EALTH & S AFETY C ODE A NN

. § 574. 104 ( d ) (West 2017 ). Subject to th is requirement
, the trial court may grant one continuance on a party’s motion and for good cause shown , but may grant more than one continuance only with the parties’ agreement. Id . § 574. 104(e)

. The patient is entitled to representation by a court appointed attorney w ho is knowledgeable regarding issues to be adjudicated at the hearing. Id . § 574.105(1) (West 2017)

. Even the absence of counsel is generally not good cause for a continuance. See T EX

. R. C IV

. P. 253. Here, counsel was not absent from the hearing; rather, as provided by the statute, T.M. was represented by appointed counsel. Additionally, the statute states that the patient is entitled to request an independent expert. T EX

. H EALTH & S AFETY C ODE A NN

. § 574.10 5(6). It does not guarantee appointment of an independent expert. See id

. ; see also Williams v. Tex. State Bd. Of Orthotics & Prosthetics , 150 S.W.3d 563, 573 (Tex. App.

— Austin 2004, no pet.) (“we will not read into an act a provision that is not there, except to give effect to clear legislative intent”).12 Standard of Review and Applicable Law We review the trial court’s denial of a request for a jury trial for an abuse of discretion.
Mercedes

- Benz Credit Corp. v. Rhyne , 925 S.W.2d 664, 666 (Tex. 1996). We consider the entire record and determine whether the trial court’s decision is arbitrary, unreasonable, and without reference to guiding principles. Id

. When construing a statute, our objective is to determine and give effect to the legislature’s
intent. Tex. Dep’t of Transp. v. Needham , 82 S.W.3d 314, 318 (Tex. 2002). We examine the entire act, not just isolated portions of it. City of San Antonio v. City of Boerne , 111 S.W.3d 22, 25 (Tex. 2003). We begin with the plain and common meaning of the statute’s words. Id . If the statutory language is unambiguous, we interpret the statute according to its plain meaning. Id

. Words and phrases shall be rea d in context and construed according to the rules of grammar and

common usage. T EX

. G OV ’ T C ODE A NN

. § 311.011(a) (West 2013). We presume that every word of the statute has been used for a purpose, and that every word excluded from the statute has been

ex cluded for a purpose. Laidlaw Waste Sys. (Dallas), Inc. , 904 S.W.2d at 659. We also presume that the legislature enacted the statute with complete knowledge of existing law and with reference
to it. Acker v. Tex. Water Comm’n , 790 S.W.2d 299, 301 (Tex. 1990). It is further presumed that the legislature enacts a statute with the intention of complying with the Texas and United States
constitutions. T EX

. G OV ’ T C ODE A NN

. § 311.021(1). We may consider the object sought to be obtained by the statute, commo n law or former statutory provisions, and the consequences of a particular construction. Id . § 311.023(1), (4), (5). Analysis
T.M. contends that the “ right to a jury trial concerning [an] Application for Order to Administer Psychoactive Medication

— Foren sic, which has the potential to fundamentally effect a patient’s brain function and body chemistry is equal to if not in excess of the right to a jury concerning matters of incarceration. ” According to T.M., he was entitled to a jury trial under the
First , Sixth, and Fourteenth Amendments of the United States Constitution
, “Article III, Section 2
of the Constitution” and the trial court violated his due process rights by denying his request for a jury trial. He contends, “As such a fundamental right is inh erent in a trial concerning the involuntary administration of psychoactive medication, it follows that it was a violation of due process to deny a written request for a jury trial in this case. ”13 On the day of the hearing, T.M.’s counsel requested a jury trial on his behalf and presented the trial court with T.M.’s letter, which stated that the application was a direct attack on his liberty interests and requested that the trial court not deny him due process. He further stated, “I am also humbly but formally [i]nvoking my right to a trial by a jury of my peers” regarding the State’s application. He asked to be informed of the costs and fees associated with a jury trial so that he could timely pay the fees or costs. The State had no objection to the statement and commented, “[h]e certainly has a right to make it.” To preserve error for appeal, a party must show that he made his complaint to the trial court by a timely request, objection, or moti on that stated the grounds for the ruling with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent
from the context , and the trial court ruled on the request, objection, or motion or refused to r ule.
T EX

. R. A PP

. P. 33.1(a). This requirement applies to constitutional claims a party wishes to raise on appeal. State ex. re. D.D. , No. 12

- 12

- 00220

- CV, 2013 WL 3486991, at *4 (Tex. App.

— Tyler July 10, 2013, no pet.) (mem. op.). At no time , however, did T.M. argue to the trial court that denying his request for a jury trial would result in a violation of due process or other constitutional provision

. And his general reference to due process is insufficient to preserve the specific complaint he now p resents on appeal. See In re Commitment of Matlock , No. 09

- 11

- 00670

- CV, 2012 WL 4712901, at *3 (Tex. App.

— Beaumont Sept. 11, 2012, pet. denied) (mem. op.). Nevertheless, as previously stated, statutes are presumed to have been enacted by the legislature w ith complete knowledge of existing law and with reference to it , including the Texas
and United States Constitutions

. Kruse v. Henderson Tex. Bancshares, Inc. , No. 12

- 18

- 00238

- CV, 2019 WL 4125966, at * 4 (Tex. App.

— Tyler Aug. 30, 2019, no pet. h.) (op.) (citing Acker
, 790 S.W.2d at 301) ; T EX

. G OV ’ T C ODE A NN

. § 311.021(1). This Court has previously held that Section 574.106 of the Texas Health and Safety Code , which addresses the hearing and order
authoriz ing psychoactive medication, is not vague and ambiguous, and did not violate the patient’s right to due process. See State ex rel. D.H.
, No. 12

- 04

- 00181

- CV, 2004 WL 2820896, at *4

- 6 (Tex. pp.

— Tyler Dec. 8, 2004, no pet. ) (mem. op.). Moreover, t he right of trial by jury is not absolute in civil cases, but is regulated by laws and rules that specify its availability. Hayes v. State , 518 S.W.3d 585, 592 (Tex. App.

— Tyler 2017, no pet.). As applicable to the present case, t he plain language of the statute demonstrates that an application for an order authorizing the administration of psychoactive medication must be14 heard by the court, not a jury. Specifically, the “ court may issue an order authorizing the
administration of one or more classes of psychoactive medication to a patient [.]” T EX

. H EALTH &
S AFETY C ODE A NN

. § 574. 106(a) (emphasis added). Section 574.106 expressly states that a hearing on the State’s application “ shall be conducted on the record by the probate judg e or judge with probate jurisdiction
, ” and may be referred to a magistrate or court

- appointed associate judge

. Id

. § 574. 106(c)

- (d) (emphasis added). The statute provides that the “ court may issue an order under this section only if the court ” makes certain find ings by clear and convincing evidence after the hearing

. Id

. § 574. 106(a

- 1) (emphasis added). Additionally, the statute sets forth certain
factors the court shall consider when determining whether treatment with the proposed medication is in the patient’s best interest. Id

. § 574. 106(b). A “court” is a “tribunal constituted to administer justice,” especially “a governmental body consisting of one or more judges who sit to adju dicate disputes,” or the “judge or judges who sit
on such a tribunal.” Court , B LACK ’ S L AW D ICTIONARY (10th ed. 2014). The term “judge” is often used interchangeably with “court.” Judge
, B LACK ’ S L AW D ICTIONARY . The term “hearing” is defined as “[a] judic ial session, usu. open to the public, held for the purpose of deciding issues of fact or of law, sometimes with witnesses testifying.” Hearing , B LACK ’ S L AW D ICTIONARY . It is also termed “judicial hearing.” Id . In contrast, the term “trial” is defined a s “[a] formal judicial examination of evidence and determination of legal claims in an adversary proceeding” and includes both a jury trial and a trial before a judge without a jury. Trial
, B LACK ’ S L AW
D ICTIONARY . As this Court recently noted, these defi nitions indicate that the use of a jury is not anticipated at a hearing. See Kruse , 2019 WL 412 5966 , at * 3

. Accordingly , t he statute ’s plain language evidences a legislative intent that the court, not a jury, preside over the hearing to determine whether an order for psychoactive medication is
warranted. And w e will not read into a statute a provision that is not there. See Williams v. Tex. State Bd. Of Orthot ics & Prosthetics , 150 S.W.3d 563, 573 (Tex. App.

— Austin 2004, no pet.). Thus, under the circumstances of this case, we conclude that the trial court did not err by conducting the hearing , without a jury, on the State’s application to administer psychoact ive
medication . We overrule issue two.15 D ISPOSITION Having overruled T.M.’s three issues, we affirm the trial court’s order authorizing the Texas Department of State Health Services to administer psychoactive medication

.

J AMES T. W ORTHEN Chief Justice

Opinion delivered September 18, 2019. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 18 , 2019

NO. 12

- 19

- 00160

- CV

THE STATE OF TEXAS F OR THE BEST INTEREST AND PR OTECTION OF T.M.

Appeal from the County Court at Law of Cherokee County, Texas (Tr.Ct.No. 42.650) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the
trial court’s order

. It is therefore ORDERED, ADJUDGED and DECREED that the order authorizing the Texas Department of State Health Services to administer psychoactive medication
of the court below be in all things affirmed , and that this decision be certified to the court below
for observance. James T. Worthen, Chief Justice

. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.