Opinion
No. 08-22-00149-CV
09-21-2022
The STATE of Texas FOR the Best Interest and Protection of A.R.C.
ATTORNEY FOR APPELLANT: Kirk Cooper, Cooper Appeals, P.L.L.C., 10420 Montwood Dr., Ste. N-405, El Paso, TX 79936. ATTORNEY FOR APPELLEE: Michael Gomez, Dana Irwin Carmona, Kevin McCary, Assistant County Attorneys, 500 E. San Antonio, Room 503, El Paso, TX 79901. ATTORNEY AD LITEM: Frank Gonzalez, Texas Tech University System, 4801 Alberta Avenue, Suite B-09, El Paso, TX 79905.
ATTORNEY FOR APPELLANT: Kirk Cooper, Cooper Appeals, P.L.L.C., 10420 Montwood Dr., Ste. N-405, El Paso, TX 79936.
ATTORNEY FOR APPELLEE: Michael Gomez, Dana Irwin Carmona, Kevin McCary, Assistant County Attorneys, 500 E. San Antonio, Room 503, El Paso, TX 79901.
ATTORNEY AD LITEM: Frank Gonzalez, Texas Tech University System, 4801 Alberta Avenue, Suite B-09, El Paso, TX 79905.
Before Rodriguez, C.J., Palafox, and Alley, JJ.
OPINION
YVONNE T. RODRIGUEZ, Chief Justice
Appellant, A.R.C., appeals the trial court's judgment ordering temporary inpatient mental health treatment. In two issues, A.R.C. argues the trial court erred in granting the State's application for court-ordered mental health services because the State failed to meet the strict statutory requirements for granting such an application or, alternatively, the evidence supporting the trial court's order was legally and factually insufficient. We reverse and render.
In a companion case, A.R.C. also challenges the trial court's order to administer psychoactive medications, which we address in a separate opinion for that case. The State of Texas for the Best Interest and Protection of A.R.C. , No. 08-22-00150-CV.
BACKGROUND
In July 2022, Ferney Paez, M.D., filed an application for temporary court-ordered mental-health services, alleging that A.R.C. was a mentally ill person who, because of his mental illness: (1) was likely to cause serious harm to himself and others; (2) was experiencing severe and abnormal mental, emotional, or physical distress, as well as substantial mental or physical deterioration of his ability to function independently to provide for his basic needs; and (3) was unable to make rational, informed decisions as to whether or not to submit to treatment. Two certificates of medical examination (CME) were filed in support of the application: one completed by Dr. Paez and a second one completed by Roberto Kutcher-Diaz, M.D.
Prior to the trial court's hearing on the court-ordered mental health-services application, A.R.C. filed a motion urging the trial court to dismiss the application because the statutory requirements for holding the hearing had not been met. Specifically, he argued that the statute governing court-ordered mental-health services required that at least one of the CMEs be completed by a psychiatrist, and neither Drs. Paez nor Dr. Kutcher-Diaz—who were merely residents of a psychiatry resident program—qualified as such.
At the hearing on the application, Dr. Kutcher-Diaz, who identified himself as a "psychiatry resident," recommended that A.R.C. be committed for a period of up to 45 days so that he may receive mental health services and psychoactive medications. When cross-examined about his occupation, Dr. Kutcher-Diaz testified that he was a second-year psychiatry resident at the "Foster Medical School ... at Texas Tech[.]" When asked if he considered himself a psychiatrist, Dr. Kutcher-Diaz responded, "I'm a psychiatry resident, yes." When asked again, he responded, "Yes," explaining that he considered himself a psychiatrist because he treated patients with mental illness and used medications. As to his licensure status, Dr. Kutcher-Diaz clarified that he had a physician-in-training permit, which he considered to be the same as a license to practice medicine.
A.R.C. stipulated that Dr. Kutcher-Diaz was an expert in clinical psychiatry.
Under his physician-in-training permit, he "actively practice[d] medicine under the supervision of other physicians [which was] part of [his] training process[.]" Dr. Kutcher-Diaz testified that although a physician-in-training permit restricted him to the practice of medicine as part of a residency training or fellowship program, that did not mean he was a necessarily a student, but was, in fact, a medical doctor. He further explained that to become a psychiatrist, one had to first graduate from medical school and then complete an accredited residency program, which program he had not yet completed. He agreed that it was by virtue of his enrollment in the residency program that he was issued a physician-in-training permit, that he was not an employee of the University Medical Center (UMC), and that he had not yet applied for a "separate license as a medical doctor with the Texas Medical Board."
Dr. Kutcher-Diaz testified that Dr. Paez, the doctor who completed the first CME, was also a second-year psychiatry resident. The trial court granted the application for temporary court-ordered mental health services for a period of 45 days.
DISCUSSION
In his first issue, Appellant asserts that the trial court had a ministerial duty to dismiss the application and order his immediate release because two statutorily compliant CMEs were not on file by the time of the hearing. We agree.
Standard of Review
Review of Appellant's first issue requires us to construe the statutory requirements of the Texas Health and Safety Code with respect to court-ordered mental health services. See TEX.HEALTH & SAFETY CODE ANN. §§ 571.003, 574.009 (providing pertinent definitions and requirements for medical examination). "Statutory construction is a legal question that we review de novo in order to ascertain and give effect to the Legislature's intent" as expressed by the plain and common meaning of the statute's words. Rio Valley, L.L.C. v. City of El Paso , 441 S.W.3d 482, 491 (Tex.App.—El Paso 2014, no pet.) ; see Butler v. City of Big Spring , No. 11-21-00026-CV, ––– S.W.3d ––––, ––––, 2022 WL 2975948, at *2 (Tex.App.—Eastland 2022, no pet. h.) ; TEX.GOV'T CODE ANN. § 312.005. We must presume that every word of a statute has been used for a purpose; likewise, we presume every excluded word has been purposefully excluded. See Butler , ––– S.W.3d at ––––, 2022 WL 2975948 at *2. As such, when a term is included in one section of a statute but excluded in another, we do not imply the term where excluded. See id.
When the plain language of a statute does not convey the Legislature's apparent intent, however, a reviewing court may resort to construction aids in determining that intent, such as the Code Construction Act, found in Chapter 311 of the Texas Government Code. Mitchell v. State , 473 S.W.3d 503, 514 (Tex.App.—El Paso 2015, no pet.). In accordance with Section 311.011 of the Texas Government Code, in ascertaining the meaning of an undefined term, we look to any definitions prescribed by the Legislature, as well as any acquired technical or particular meaning of the words. See id. ; TEX.GOV'T CODE ANN. § 311.011. We are also permitted to look to, among other things, prior court opinions construing the term in other contexts. Mitchell , 473 S.W.3d at 515 (citing Jaster v. Comet II Const., Inc. , 438 S.W.3d 556, 563 (Tex. 2014) ).
Moreover, when a term is "connected with and used with reference to a particular trade or subject matter or is used as a word of art, the word shall have the meaning given by experts in the particular trade, subject matter, or art." TEX.GOV'T CODE ANN. § 312.002. We read the statute as a whole and not just its isolated portions, giving effect to every part. See City of San Antonio v. City of Boerne , 111 S.W.3d 22, 25 (Tex. 2003) (citing Jones v. Fowler , 969 S.W.2d 429, 432 (Tex. 1998) ).
Applicable Law
Section 574.009 of the Texas Health and Safety Code (the Code) sets out the requirements for medical examination in an action for court-ordered mental health services, stating, in relevant part:
(a) A hearing on an application for court-ordered mental health services may not be held unless 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. At least one of the physicians must be a psychiatrist if a psychiatrist is available in the county.
....
(d) If the certificates required under this section are not on file at the 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.
TEX.HEALTH & SAFETY CODE ANN. § 574.009(a), (d) (emphasis added). "The provision that two certificates must be on file at the time of the hearing is mandatory." State ex rel. E.A. , No. 14-14-00980-CV, 2015 WL 5173036, at *3 (Tex.App.—Houston [14th Dist.], Sept. 3, 2015, no pet.) (mem. op.) (citing State ex rel. L.A. , No. 06-15-00028-CV, 2015 WL 4381340, at *1 (Tex.App.— Texarkana July 17, 2015, no pet.) (mem. op.) ; In re J.J. , 900 S.W.2d 353, 355 (Tex.App.— Texarkana 1995, no writ) ; State ex rel. M.S. , No. 12-02-00061-CV, 2002 WL 1900020, at *2 (Tex.App.—Tyler Aug. 14, 2002, no pet.). "If statutorily compliant certificates are not on file at the time set for the application hearing, the application must be dismissed." State ex rel. E.A. , 2015 WL 5173036 at *3. Failure to comply with the mandates of Section 574.009 effectively deprives the trial court of jurisdiction to issue an order for mental health services. See Porter v. State , 703 S.W.2d 840, 843 (Tex.App.—Fort Worth 1986, no writ) (construing TEX.REV.CIV.STAT.ANN. art. 5547–46, now TEX.HEALTH & SAFETY CODE ANN. § 574.009 and holding that requirement that two certificates are on file is jurisdictional in nature).
The Texas Health and Safety Code defines "physician" as "a person licensed to practice medicine in this state ... or a person authorized to perform medical acts under a physician-in-training permit at a Texas postgraduate training program approved by the Accreditation Council for Graduate Medical Education [(ACGME)] ... or the Texas Medical Board." TEX.HEALTH & SAFETY CODE ANN. § 571.003(18)(A), (C). It does not define "psychiatrist." See generally id. § 571.003.
The Texas Medical Board—the body responsible for establishing standards for and regulating the practice of medicine through licensure and discipline of physicians—has defined a "postgraduate resident" as "[a] physician who is in postgraduate training as an intern, resident, or fellow in an approved postgraduate training program or a board-approved fellowship." 22 TEX.ADMIN.CODE ANN. § 171.3(a)(5). It further defines a "physician-in-training" (PIT) permit as "a permit issued by the [Texas Medical] [B]oard in its discretion to a physician who does not hold a license to practice medicine in Texas and is enrolled in a training program ... in Texas, regardless of his/her postgraduate year (PGY) status within the program." Id. § 171.3(a)(6)(A). A PIT permit restricts a physician practicing under this permit to both (1) the specific program for which the PIT permit was granted, and (2) the supervised practice of medicine that is part of and approved by the training program. Id. § 171.3(a)(6)(C)-(D). The PIT permit expires upon the permit holder's completion or termination of the postgraduate training program, withdrawal from the program, or procurement of a full, temporary, or limited licensure. Id. § 171.3(d)(1)-(2). "The issuance of a permit to a physician shall not be construed to obligate the board to issue [him or her] subsequent permits or licenses." Id. § 171.2(e).
Mootness
In a "Notice to Court Regarding Case Facts Update", the State advised this Court that Appellant was released from inpatient hospitalization to an "Outpatient Commitment" following the commencement of this appeal. To the extent that a request to dismiss this appeal as moot may be gleaned from the State's notice in this regard, we decline to do so. It is well-settled that the mootness doctrine does not apply to appeals from involuntary commitments. See, e.g., State v. K.E.W. , 315 S.W.3d 16, 20 (Tex. 2010) ("The expiration of the time for which [the patient] was ordered to receive services [and medication] does not require the appeal to be dismissed for mootness."); J.M. v. State , 178 S.W.3d 185, 189-90 (Tex.App.—Houston [1st Dist.] 2005, no pet.) (appeal from an order to administer psychoactive medication when the term of the order has expired is not moot); In re State ex rel. D.L.S. , 446 S.W.3d 506, 513-14 (Tex.App.—El Paso 2017, no pet.) (appellate court retained subject-matter jurisdiction despite expiration of involuntary commitment orders due to collateral-consequences exception to mootness doctrine in involuntary commitment case). Having determined that we possess jurisdiction over this appeal, we turn to the merits of Appellant's challenges to the trial court's order for temporary mental health services.
Analysis
In his first issue, Appellant argues that, while the Texas Health and Safety Code allows for one of the CMEs in a mental-health-commitment proceeding to be completed by a physician practicing at a postgraduate training program under a PIT permit—such as psychiatry residents Drs. Paez and Kutcher-Diaz—it does not allow for both CMEs to be completed by such a physician. The State counters that, given the Code's stated purpose of providing accessible and affordable psychiatric treatment to individuals in need of emergency psychiatric treatment, it is "well accepted that certain medical residents practicing under a PIT permit could also be considered ‘psychiatrists’ " for purposes of fulfilling the Code's CME requirements. We agree with Appellant.
Texas Tech University Health Sciences Center-El Paso (TTUHSC) filed a brief as amicus curiae in support of the State.
No other Texas Appellate Court has been presented with the question of whether, in a mental-health-commitment proceeding, a psychiatry resident constitutes a "psychiatrist" for purposes of satisfying the statutory requirements that at least one CME be completed by a psychiatrist. As such, this question appears to be one of first impression. We note that while the Legislature chose to include in the Health and Safety Code a definition of "physician" that expressly included a physician practicing under a PIT permit, it did not do so with respect to "psychiatrist." TEX.HEALTH & SAFETY CODE ANN. § 571.003(18)(A), (C). We presume, as we must, that this exclusion was a purposeful one. See, e.g., Butler , ––– S.W.3d at ––––, 2022 WL 2975948 at *2 ; City of Richardson v. Oncor Elec. Delivery Co. , 539 S.W.3d 252, 260 (Tex. 2018).
25 TEX. ADMIN. CODE ANN. § 415.3 Does not Apply to Involuntary Commitment Proceedings
The State maintains that Dr. Kutcher-Diaz is, indeed, a "psychiatrist" according to the Department of State Health Services (DSHS), the agency designated to serve as the state's mental health authority, TEX.HEALTH & SAFETY CODE ANN. § 531.001(h), and which agency defines "psychiatrist" as:
A physician who is certified by the American Board of Psychiatry and Neurology or who is board eligible, i.e., has an active approved application on file in the board office, or a physician who is currently in training in such a program and is supervised by a board[-]eligible or board[-]certified psychiatrist.
25 TEX.ADMIN.CODE ANN. § 415.3(13) ; see also 40 TEX.ADMIN.CODE ANN. § 5.3(13) (wherein the Department of Aging and Disability Services defines "psychiatrist" in the same way). The State asserts that Dr. Kutcher-Diaz meets this definition in that the record shows that he has an active license to practice medicine, is in his second-year residency, and practices under the supervision of a physician.
We are not persuaded that this particular definition applies to involuntary commitment proceedings under the Code. By its own terms, the DSHS definition applies only to the regulation of psychoactive-medication prescriptions. Appearing under the subchapter entitled "Prescribing of Psychoactive Medication," the definition is preceded by the phrase, "The following words and terms, when used in this subchapter [(Subchapter A. Prescribing of Psychoactive Medication)], have the following meanings[.]" 25 TEX.ADMIN.CODE ANN. § 415.3 (emphasis added). The stated purpose of this subchapter is "to establish standards for prescribing psychoactive medication to patients served by the state mental health and mental retardation system in Texas." Id. § 415.1(a) (entitled, "Purpose") (emphasis added). Nothing in this subchapter indicates that it applies to or in any way relates to the context of involuntary commitments for temporary mental-health services or the involuntary administration of psychoactive medication. Indeed, there is a difference between merely prescribing psychoactive medications—accessible to a patient wishing to voluntarily avail himself or herself of such treatments—and obtaining a court order authorizing a medical facility to forcefully administer psychoactive medications against a patient's will during his or her court-ordered involuntary commitment. Physicians Practicing under PIT Permits are not "Psychiatrists" within the Meaning of the Code
Even if we determined that this definition applied, we do not agree with the State that the record before us is sufficient to meet it. Dr. Kutcher-Diaz testified only that he was supervised by "other physicians", but not that he was supervised by a board-certified or board-eligible psychiatrist , which is what DSHS’ definition requires. 25 Tex.Admin.Code Ann. § 415.3. Nor do we agree with the State's assertion that Dr. Kutcher-Diaz has a an "active license to practice medicine," as Dr. Kutcher-Diaz merely testified that he could apply for his medical license from the Texas Medical Board but instead currently practiced under a PIT permit limiting him to the supervised practice of medicine within his residency program. Dr. Kutcher-Diaz did not testify that he was board certified or board eligible, nor does the State contend as much. And while TTUHSC's amicus brief and accompanying affidavit in support assert that Drs. Kutcher-Diaz and Paez were actually supervised by at least one board-certified psychiatrist, as noted above, this purported fact is not in the appellate record, and we do not consider it, or the affidavit, in this appeal. See Fox v. Wardy , 234 S.W.3d 30, 33 (Tex.App.—El Paso 2007, pet. dism'd w.o.j.) (refusing to consider affidavit attached to brief that did not appear in the record); see also Gonzales v. State , 474 S.W.3d 345, 350 (Tex.App.—Houston [14th Dist.] 2015, pet. ref'd) ; Elkins v. Stotts-Brown , 103 S.W.3d 664, 669 (Tex.App.—Dallas 2003, no pet.) (noting motions and arguments of counsel are not evidence). In any event, as discussed, we find that the DSHS definition of "psychiatrist" does not apply to the statute in question.
Appellant contends that the term "psychiatrist"—which the Code does not define—is a term of art or science that has a technical meaning: a physician who has completed all phases of their professional development by first obtaining an M.D. from an accredited medical school and then completing a residency program whereby he or she learns by doing. See, e.g., Texas Tech Univ. Health Sci. Ctr. v. Enoh , 545 S.W.3d 607, 619-21 (Tex.App.—El Paso 2016, no pet.) (discussing structure of Texas Tech University Health Sciences Center residency program and holding medical residency program was educational and did not constitute employment); Shaboon v. Duncan , 252 F.3d 722, 731 (5th Cir. 2001) (noting medical postgraduate resident had limited privileges to treat patients under supervision of other staff, which privileges were part of the educational program and not distinct from her residency).
We need not decide precisely what the technical meaning, if any, of "psychiatrist" is. The Texas Medical Board has defined "postgraduate resident" as "[a] physician who is in postgraduate training as an intern, resident, or fellow in an approved postgraduate training program or a board-approved fellowship." 22 TEX.ADMIN.CODE ANN. § 171.3(a)(5). It then clearly defines a PIT permit—the kind held by Drs. Paez and Kutcher-Diaz as "a permit issued by the [Texas Medical] [B]oard in its discretion to a physician who does not hold a license to practice medicine in Texas and is enrolled in a training program ... in Texas, regardless of his/her postgraduate year (PGY) status within the program." Id. § 171.3(a)(6)(A).
By Dr. Kutcher-Diaz’ own admission, he had not yet met the requirements to become a psychiatrist, which he testified entailed first graduating from medical school and then completing an accredited residency program. Identifying himself as a second year "psychiatry resident," he admitted he had not yet completed his residency training and that he had a "resident license," which he later clarified was a PIT permit, issued only by virtue of his enrollment in the Texas Tech residency program. Although he was eligible to do so, he had not applied for and obtained a medical license from the Texas Medical Board. Instead, Dr. Kutcher-Diaz’ practice of medicine was restricted to performing only supervised medical acts as part of his postgraduate residency program at UMC. And he testified that Dr. Paez (the doctor who completed one of the two CMEs) was also a second-year psychiatry resident. (RR21). Thus, although we do not question Dr. Kutcher-Diaz’ qualifications or aptitude as a physician, despite his wavering between whether he had a "resident license," a "medical license," or a "PIT license," upon examination of the record and the pertinent Texas Administrative Code provisions, it is evident that he and Dr. Paez are, indeed, postgraduate residents practicing under a PIT permit. See 22 TEX.ADMIN.CODE ANN. § 171.3(a)(5)-(6)(D); (d)(1)-(2).
It is unclear from the record whether Drs. Paez and Kutcher-Diaz passed the examinations required by the Texas Medical Board to be eligible to practice medicine in the State, such that they would be able to obtain a license to practice medicine outside of the residency program. See Tex.Occ.Code Ann. § 155.003(a)(1)-(4) (requiring completion of bachelor of arts or science degree or acceptable equivalent, graduation from a medical school, completion of one year of approved graduate medical training, and passing of an examination accepted or administered by the board in addition to a Texas medical jurisprudence examination determined by board rule). Such eligibility does not alter our analysis.
Evidently aware of the supervised practice of medicine permitted by the Texas Medical Board under a PIT permit issued to eligible postgraduate residency program participants, the Legislature chose to include such PIT permit holders in its definition of "physicians" authorized to complete one of the CMEs required to involuntarily commit someone to mental health services, but wholly forewent the opportunity to define "psychiatrist" to similarly include such PIT holders. See TEX.HEALTH & SAFETY CODE ANN. § 571.003(18)(A), (C). As such, we presume that the Legislature acted deliberately in this regard, intentionally carving out a less-restrictive requirement as to one of the minimum two required CMEs, but ensuring that a more qualified physician, a "psychiatrist," completed at least one of the CMEs when such a more specialized physician was available. See, e.g., Butler , ––– S.W.3d at ––––, 2022 WL 2975948 at *2 ; Oncor Elec. Delivery Co. , 539 S.W.3d at 260.
"The statutory requirements for an involuntary commitment are strict because an involuntary commitment is a drastic measure." See State ex rel. E.A. , 2015 WL 5173036 at *3 (and cases cited therein). We will not imply a less restrictive requirement that both required CMEs may be completed by a physician who is practicing under a PIT permit and has not yet completed a postgraduate residency program where the Legislature has failed to provide that such is permissible. See Butler , ––– S.W.3d at ––––, 2022 WL 2975948 at *2 ; Oncor Elec. Delivery Co. , 539 S.W.3d at 260 (terms excluded should not be implied).
Here, the State did not claim or otherwise demonstrate that it was not required to file at least one CME completed by a psychiatrist because one was not available in the county. See TEX.HEALTH & SAFETY CODE ANN. § 574.009(a) (requiring that at least one of the physicians who examines the proposed patient and completes a CME be a psychiatrist if one is available in the county). Thus, while it was permissible for either Dr. Paez or Dr. Kutcher-Diaz to complete one of the two CMEs on file before the hearing, if no more than two CMEs were filed, neither one of these doctors could complete the remaining CME to meet the minimum two statutorily required CMEs. See id.
The State's Policy Arguments Will Not Control Over Matters of Statutory Construction
The State and amicus curiae urge us to consider the policy implications of strictly construing Section 574.009(a) of the Texas Health and Safety Code to preclude psychiatry residents from completing the second, dispositive CME in involuntary commitment proceedings. To this end, the State asks us to incorporate the less-restrictive, more expansive definition of "psychiatrist" promulgated by DSHS because "medical resources are scarce." In this regard, we note that the Legislature already accounted for the possibility of scarce or inadequate medical resources when it provided that a psychiatrist must complete one of the CMEs only if a psychiatrist was available in the county. See TEX.HEALTH & SAFETY CODE ANN. § 574.009(a). Such is the extent of the accommodation the Legislature chose to make with respect to scarcity of resources, and we must interpret this choice as a deliberate one. See Butler , ––– S.W.3d at ––––, 2022 WL 2975948 at *2 ; Oncor Elec. Delivery Co. , 539 S.W.3d at 260. The Legislature could have, for example, stated that a psychiatrist was required to complete the second CME only when the county was "sufficiently equipped" with psychiatrists to meet demand for medical services, or when the number of available psychiatrists in a given county fell at or above the national average corresponding to the county's population; or it could have otherwise set a specific per-capita threshold for deeming a county "underserved" and thus not subject to the psychiatrist-sign-off requirement. Alas, the Legislature did not make such an exception, and we will not imply one in its stead. See Butler , ––– S.W.3d at ––––, 2022 WL 2975948 at *2 ; Rio Valley, L.L.C. , 441 S.W.3d at 491.
Similarly, TTUHSC insists that refusing to allow psychiatry residents to qualify as "psychiatrists" for purposes of meeting the statute's CME requirements would prove prohibitively onerous on the State because the number of psychiatrists otherwise available to evaluate, treat, and prepare CMEs for the community's mentally ill would be insufficient to meet demand. In urging us to uphold the trial court's commitment order, it then asserts that Appellant was, in fact, personally evaluated by four different psychiatrists, on seven separate occasions, even though none of them completed or signed a CME. That Appellant may have, indeed, been evaluated by several fully accredited, board-certified psychiatrists does not serve to meet the strict mandates of Section 574.009(a) of the Texas Health and Safety Code —the statute is clear that when at least one psychiatrist is available in the county, he or she must complete a CME before the involuntary commitment application may be heard, not merely evaluate the proposed patient. See TEX.HEALTH & SAFETY CODE ANN. § 574.009(a) ; see also In re J.J. , 900 S.W.2d at 355-56 (rejecting State's argument that it substantially complied with section 574.009(a) where Appellant was examined by four physicians, three of whom were psychiatrists, but there was not on file at the time of the hearing a CME completed by any of the three psychiatrists).
That, according to TTUHSC, by the time of the involuntary commitment hearing, Appellant had been personally evaluated by not one but four board-certified psychiatrists only dampens TTUHSC's position that, without the ability of psychiatry residents to complete the second, dispositive CME, no psychiatrist would be available to evaluate proposed patients in connection with commitment proceedings.
We note that "[d]rafting and passing legislation is often the result of compromise between competing policy interests, so it is essential that courts ‘stay in their lane’ when construing the meaning of statutes." Kostura v. Judge , 627 S.W.3d 380, 385 (Tex.App.—Amarillo 2021, pet. denied) (quoting In re Texas Dep't of Family & Protective Servs. , 210 S.W.3d 609, 614 (Tex. 2006) (orig. proceeding) ). As appellate courts, we are tasked merely with determining the Legislature's intent by examining the plain language of its enacted statutes; we do not pass on the soundness of policy created by the Legislature, nor do we construe statutes to craft a policy we deem more reasonable, appropriate, or efficient. See id. ("We do not read words into a statute to make it what we consider to be more reasonable, rather we may do so only to prevent an absurd result.") (quoting Union Carbide Corp. v. Synatzske , 438 S.W.3d 39, 52) (Tex. 2014) ). Whatever the legitimacy or strength of the State's and amicus's policy arguments, they cannot serve to circumvent the statutory construction issue before us. The State and amicus curiae may very well have strong arguments to present to the Legislature, and they might even be successful in lobbying the Legislature to amend the statute accordingly. Until then, however, we are bound the by the plain language of the statute currently in effect.
Because we find that neither of the two physicians who completed the two CMEs on file with the court at the time set for the hearing on the application was a psychiatrist under the strict statutory requirements of Section 574.009(a) of the Texas Health and Safety Code, the trial court was required to dismiss the application, and its failure to do so constituted harmful error. See TEX.HEALTH & SAFETY CODE ANN. § 574.009(d) (providing that judge "shall" dismiss the application and order release of proposed patient where CMEs required under the statute are not on file by the time of the hearing on the application); Marroquin v. State , 112 S.W.3d 295, 303 (Tex.App.—El Paso 2003, no pet.) (holding it was harmful error to conduct hearing on application for court-ordered mental health services where only one proper CME was on file); State ex rel. E.A. , 2015 WL 5173036 at *3 (reversing trial court's order for involuntary mental health commitment where CME signed by psychiatrist was filed 30 minutes after the hearing on the application began).
Because we sustain Appellant's first issue, we do not address his second, legal-and factual-sufficiency point of error.
CONCLUSION
Having sustained Appellant's first issue, we vacate the trial court's order and render judgment dismissing the application for court-ordered temporary mental health services.
Palafox, J., dissenting
Alley, J., concurring
DISSENTING OPINION
GINA M. PALAFOX, Justice
Section 574.009 of the Texas Health and Safety Code (the Code) sets out the requirements for medical examination in an action for court-ordered mental health services. Relevant to this appeal,
[a] hearing on an application for court-ordered mental health services may not be held unless 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. At least one of the physicians must be a psychiatrist if a psychiatrist is available in the county.
TEX. HEALTH & SAFETY CODE ANN. § 574.009(a) (emphasis added). The parties dispute the meaning of the term "psychiatrist," as included in this provision. The majority ultimately decides the legislature intended "psychiatrist" to be a "more qualified physician," than a physician who is a postgraduate resident who is licensed by the state to provide mental health treatment under the direction of and enrolled in an approved psychiatry training program. Because I disagree with this conclusion, I respectfully dissent.
Section 574.009 appears within Title 7, subtitle C, of the Texas Health and Safety Code, entailing provisions for Mental Health and Intellectual Disability. See generally id. §§ 571.001–578.008. Chapter 574 provides for "Court-Ordered Mental Health Services." See id. §§ 574.001–.203. As the majority correctly observes, definitions are provided for this subtitle. See id. § 571.003. "Physician" is defined as "a person licensed to practice medicine in this state" or "a person authorized to perform medical acts under a physician-in-training permit at a Texas postgraduate training program approved by the Accreditation Council for Graduate Medical Education [(ACGME)] ... or the Texas Medical Board." Id. § 571.003(18)(A), (C). No definition is included for the term "psychiatrist." See id. § 571.003. Here, that absence leads to the controversy over the meaning of the undefined term.
When construing a statute, our primary objective is to ascertain and give effect to the legislature's intent. TGS-NOPEC Geophysical Co. v. Combs , 340 S.W.3d 432, 439 (Tex. 2011). To do so, we begin with the statute's words. Id. ; see also Fitzgerald v. Advanced Spine Fixation Sys., Inc. , 996 S.W.2d 864, 865–66 (Tex. 1999) (noting that the legislature's words are the best guide to its intent). We presume the legislature chooses a statute's language with care, including each word chosen for a purpose, while purposefully omitting words not chosen. TGS-NOPEC , 340 S.W.3d at 439. Ordinarily, words and phrases "shall be read in context and construed according to the rules of grammar and common usage." Crosstex Energy Servs., L.P. v. Pro Plus, Inc. , 430 S.W.3d 384, 389–90 (Tex. 2014) (quoting TEX. GOV'T CODE ANN. § 311.011 ). However, if a statute defines a term, or it has acquired a technical or particular meaning, a court is bound to construe the term accordingly. TEX. GOV'T CODE ANN. § 311.011(b) ; Texas Dep't of Transp. v. Needham , 82 S.W.3d 314, 318 (Tex. 2002). Ultimately, we consider statutes as a whole, and not by their isolated provisions. Cadena Comercial USA Corp. v. Texas Alcoholic Beverage Comm'n , 518 S.W.3d 318, 326 (Tex. 2017) ("[O]ur objective is not to take definitions and mechanically tack them together ... rather, we consider the context and framework of the entire statute and meld its words into a cohesive reflection of legislative intent.").
Within its opinion, the majority says it will not decide the "technical meaning, if any, of psychiatrist." Instead, it looks at the meaning of "postgraduate resident," a relevant term but one not in dispute. Relying on rules promulgated under the authority of the Medical Practice Act, the majority notes a "postgraduate resident" is defined as "[a] physician who is in postgraduate training as an intern, resident, or fellow in an approved postgraduate training program or a board-approved fellowship." See 22 TEX. ADMIN. CODE ANN. § 171.3(a)(5). And the rule further provides that "[a] physician-in-training permit is a permit issued by the board in its discretion to a physician who does not hold a license to practice medicine in Texas and is enrolled in a training program as defined in paragraphs (1), (2), and (4) of this subsection in Texas, regardless of his/her postgraduate year (PGY) status within the program." Id. § 171.3(6). The majority otherwise notes that the TAC rule and the Mental Health Code both broadly define the term "physician" such that it includes persons who are "postgraduate residents." But the primary dispute of this case still hinges on the meaning of "psychiatrist." Comparing "physician" with "psychiatrist," the majority determines the legislature chose to include postgraduate residents within the meaning of physicians who are authorized to complete at least one CME. But it further notes the legislature wholly forewent the opportunity to similarly define the term "psychiatrist." Based on this apparent distinction between the terms—one defined to include residents while the other left undefined—the majority concludes the legislature acted deliberately such that it, "intentionally car[ried] out a less-restrictive requirement as to one of the minimum two required CMEs, but ensur[ed] that a more qualified physician, a ‘psychiatrist,’ complete[d] at least one of the CMEs when such a more specialized physician was available." In other words, without defining the meaning of "psychiatrist," the majority ultimately decides, at minimum, that inclusion of that term entailed a requirement that at least one CME be performed by "a more qualified physician," when available. That is, the majority concludes that a postgraduate resident qualifies to perform as "a physician" but does not otherwise qualify as "a psychiatrist," regardless of expertise or enrollment in a psychiatry training program. Because I would define the term "psychiatrist" by its technical meaning, I disagree.
When a word or phrase has acquired a technical or particular meaning; it must be construed accordingly. In re Texas Educ. Agency , 619 S.W.3d 679, 687 (Tex. 2021) ; In re NCS Multistage, LLC , 650 S.W.3d 182, 195-96 (Tex. App.—El Paso, orig. proceeding) ; EP Hotel Partners, LP v. City of El Paso , 527 S.W.3d 646, 655 (Tex. App.—El Paso 2017, no pet.) ; see also TEX. GOV'T CODE ANN. § 311.011(b). When doing so, we may consult appropriate trade sources, to include reference materials or expert testimony. State v. Kaiser , 822 S.W.2d 697, 700 (Tex. App.—Fort Worth 1991, pet. ref'd) ; Lloyd A. Fry Roofing Co. v. State , 541 S.W.2d 639, 642–43 (Tex. App.—Dallas 1976, writ ref'd n.r.e.) ("If such a technical term is not defined in the statute, courts have interpreted the statutes in the light of the testimony of expert witnesses familiar with the particular art, science, or trade."); see also Reliant Energy, Inc. v. Pub. Util. Comm'n of Texas , 62 S.W.3d 833, 836 n.2 (Tex. App.—Austin 2001, no pet.) (consulting administrative rules to determine a technical meaning). When the art, science, or trade involves the practice of medicine, courts may consider how medical dictionaries define a particular term of art. See, e.g., Texas State Bd. of Exam'rs of Marriage & Family Therapists v. Texas Med. Ass'n , 511 S.W.3d 28, 35 (Tex. 2017) (consulting medical dictionary for the definition of terms such as "remedy," "evaluate," and "diagnose"); Texas Orthopaedic Ass'n v. Texas State Bd. of Podiatric Med. Exam'rs , 254 S.W.3d 714, 721 (Tex. App.—Austin 2008, pet. denied) (consulting anatomy atlas to determine the meaning of "foot" in medical licensing context); State v. Bingham , 921 S.W.2d 494, 496 (Tex. App.—Waco 1996, pet. ref'd) (looking to medical dictionary and testimony of phlebotomist to define phrase "qualified technician").
Trade sources that include reference materials and expert testimony indicate the term "psychiatrist" has acquired a technical meaning. First, medical dictionaries provide that "psychiatrist" is defined as "a physician who specializes in psychiatry." Dorland's Illustrated Medical Dictionary 1383 (27th ed. 1988). In turn, "psychiatry" is defined as "that branch of medicine which deals with the study, treatment, and prevention of mental disorders." Id. Thus, a psychiatrist is simply a type of physician, one who specializes in psychiatry. Other specialists within the medical profession follow a similar pattern. For example, a "cardiologist" is "a physician skilled in the diagnosis and treatment of heart disease," while a "pediatrician" is defined as "a physician who specializes in pediatrics." Id. at 274, 1246. These definitions all show that a medical specialist is simply a physician specializing in the treatment of diseases or disorders in a particular area or branch of medicine.
Second, as the State points out in its briefing, administrative rules promulgated by authoritative bodies have also defined the undefined term. "Psychiatrist" is defined by the administrative rules of both the Department of State Health Services (DSHS), serving as the state's mental health authority, and the Department of Aging and Disability Services (DADS), serving as the state's intellectual disability authority. See 25 TEX. ADMIN. CODE ANN. § 415.3 ; see also 40 TEX. ADMIN. CODE ANN. § 5.3. Both of these authorities define "psychiatrist" broadly to include a physician who is currently in training in an approved psychiatry training program and is supervised by a board eligible or board-certified psychiatrist. See 25 TEX. ADMIN. CODE ANN. § 415.3(13) ; see also 40 TEX. ADMIN. CODE ANN. § 5.3(13).
Lastly, the State presented expert testimony to the trial court addressing the meaning of the term "psychiatrist." Before testimony was received from Dr. Kutcher-Diaz, Appellant stipulated that he qualified as an expert in clinical psychiatry. When asked whether he considered himself to be a psychiatrist, Dr. Kutcher-Diaz answered, "Yes." Asked to explain, he responded, "Well, because I treat patients with mental illness, and I use medications. And ... that's part of my ... job process[.]" Dr. Kutcher-Diaz also confirmed that he held an active medical license to practice medicine in the state, that is, a physician-in-training permit. He further testified that he practiced medicine under the supervision of other physicians as part of his psychiatry residency with the Paul L. Foster School of Medicine, Texas Tech Health Sciences Center, El Paso.
Because "psychiatrist" has acquired a technical meaning, I would construe the term accordingly. See In re Texas Educ. Agency , 619 S.W.3d at 687 ; TEX. GOV'T CODE ANN. § 311.011(b). Based on reference materials and expert testimony that is part of this record, I would construe "psychiatrist" as a physician who specializes in that branch of medicine that deals with the study, treatment, and prevention of mental disorders. In turn, the term "physician," which is included in the meaning of psychiatrist, is defined by section 571.003(18)(C) of the Mental Health Code to include a person authorized to perform medial acts under a physician-in-training permit at a Texas postgraduate training program. See TEX. HEALTH & SAFETY CODE ANN. § 571.003(18)(C). Here, Dr. Kutcher-Diaz provided uncontested testimony that he met such requirements including having the required training, supervision, and permit. Accordingly, I would conclude the requirements of section 574.009(a) were met as the required number of certified medical examinations were on file with the court prior to the hearing. See id. § 574.009(a). Lastly, although the majority does not address Appellant's second issue, I would also conclude the evidence was legally and factually sufficient to establish that Appellant was suffering from a mental illness and, as a result, he was both at risk of harm to self and unable to function independently. Thus, I would affirm the trial court's ruling.
CONCURRENCE
JEFF ALLEY, Justice
We take statutes as we find them. Texas Lottery Comm'n v. First State Bank of DeQueen , 325 S.W.3d 628, 637 (Tex. 2010) ("But we must take statutes as we find them and first and primarily seek the Legislature's intent in its language."). And equally true, "[a] court may not judicially amend a statute by adding words that are not contained in the language of the statute." Lippincott v. Whisenhunt , 462 S.W.3d 507, 508 (Tex. 2015). Here, as the majority points out, the legislature chose to define a "physician" to include a physician-in-training but did not include a like definition for a "psychiatrist."
We also afford deference to an agency's interpretation of the statutory terms it administers (when that interpretation is reasonable and not inconsistent with the statutory language). Texas Comm'n on Envt'l Quality v. Maverick County , 642 S.W.3d 537, 544 (Tex. 2022). And while the agency that administers many of the State's mental health issues would allow a physican-in-training—supervised by a board certified or board eligible psychiatrist—to write a prescription for medications, that is a far cry from allowing the same resident to restrain a person's freedom or require a person to take medicine against their will. Moreover, DSHS has not defined the term psychiatrist for the specific purposes relevant here, and nor does our record affirmatively show that the resident doctor was supervised by a board certified or board eligible psychiatrist, as the TAC definition would require. 25 TEX.ADMIN. CODE ANN. § 415.3(13).
Texas Tech School of Medicine, appearing as amicus, urges that requiring a psychiatrist to actually see the patient and sign the CME would unduly burden the functioning of a teaching hospital. That may or may not be true. Nothing in our record addresses that issue. And in truth, Texas Tech's argument is the sort best directed at the legislature or DSHA, which can take input from the several teaching hospitals around the State and balance any burden of having an instructor evaluate the patient against the value of a person's freedom and self-determination of their medical care. Stated otherwise, our opinion today is not the end-point of this dispute, but only a data point for the legislature (or perhaps DSHS) to consider in whether to refine or amend the statute (or the agency rules).
It is more than theoretically possible for the legislature to amend a statute that it feels a court has failed to apply as it intends. See, e.g. Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson , 209 S.W.3d 644, 653 (Tex. 2006) (noting statutory amendments by legislature were in response to court decisions); Texas Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc. , 145 S.W.3d 170, 188-89 (Tex. 2004) (noting legislature amended statute in response to intermediate appellate court decision). And conveniently, we are fast approaching a new legislative session.