State

NO. 12-06-00283-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS THE STATE OF TEXAS FOR         §                       APPEAL FROM THE THE BEST INTEREST AND          §                       COUNTY COURT AT LAW PROTECTION OF N. P. N. §                       CHEROKEE COUNTY, TEXAS MEMORANDUM OPINION             Appellant N.P.N. appeals from the trial court’s order authorizing the Texas Department of State Health Services to administer psychoactive medication to him.   In four issues, N.P.N. asserts that the court’s order violates state and federal guarantees of due process and equal protection.   We affirm.

Background             On August 1, 2006, an application was filed requesting the court order an authorization for the administration of psychoactive medication to N.P.N.   The application, filed by Dr. C. Cuellar, recited that N.P.N., who suffers from schizophrenia, is subject to an order for court ordered inpatient mental health services pursuant to Chapter 46B of the Texas Code of Criminal Procedure.   After hearing testimony from Dr. Jon Guidry, N.P.N.’s treating physician, the trial court entered an order to administer psychoactive medication for the period of temporary commitment or until N.P.N. is acquitted, is convicted, or enters a plea of guilty, or the date on which criminal charges in the case are dismissed.

Due Process             In his first and second issues, N.P.N. contends that the trial court rendered judgment in violation of state and federal guarantees of due process when it entered an order to administer   psychoactive drugs.   N.P.N. appears to argue that he has a significant liberty interest in avoiding the administration of unwanted antipsychotic drugs that is protected by the Fourteenth Amendment.   Therefore, forcible administration of psychoactive medication violates his right to substantive due process.   He asserts that involuntary interventions are damaging and strip the patient of his humanity. This argument was not made in the trial court.   A constitutional claim must have been asserted in the trial court to be raised on appeal.   Dreyer v. Greene , 871 S.W.2d 697, 698 (Tex. 1993).   This argument is therefore waived.

            N.P.N. also asserts that Sections 574.104–.106 of the Texas Health and Safety Code are violative of his constitutional rights to due process due to ambiguity in the term “capacity.”   He argues that the term is so overly broad, vague, and ambiguous that it renders itself susceptible to a variety of interpretations.   He points out that he was allowed to serve as his own trial counsel and yet deemed lacking capacity to make a rational and informed decision about whether to take medication.

            When considering an attack upon the constitutionality of a statute, we begin with the presumption that it is valid and that the legislature did not act arbitrarily or unreasonably in enacting the statute.   Robinson v. Hill , 507 S.W.2d 521, 524 (Tex. 1974).   We must uphold the statute if a reasonable construction can be determined that will render it constitutional.   Rowan Drilling Co. v. Sheppard , 126 Tex. 276, 279 , 87 S.W.2d 706, 707 (Tex. 1935) (orig. proceeding).   The burden rests upon the individual challenging the statute to prove its unconstitutionality.   Robinson , 507 S.W.2d at 524 .   A civil statute would violate due process only if it commanded compliance in terms “so vague and indefinite as really to be no rule or standard at all.”   A.B. Small Co. v. American Sugar Refining Co. , 267 U.S. 233, 239 , 45 S. Ct. 295, 297 , 69 L. Ed. 589 (1925).

            The term “capacity” is defined in the Health and Safety Code.   “Capacity” is statutorily defined as a patient’s ability to “understand the nature and consequences of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment” and “make a decision whether to undergo the proposed treatment.”   Tex. Health & Safety Code Ann. § 574.101(1) (Vernon 2003).   Therefore, under Section 574.106(a), the trial court may authorize the administration of psychoactive medication if it finds the patient is under an order for mental health services, the patient cannot understand the nature and consequences of the proposed treatment, including benefits, risks, and alternatives, rendering him unable to make a decision regarding administration of the proposed medication, and this treatment is in the patient’s best interest.   It is not required that statutes be defined with mathematical exactitude, only that they provide fair notice in light of common understanding and practices.   See Boyce Motor Lines, Inc. v. United States , 342 U.S. 337, 340 , 72 S. Ct. 329, 331 , 96 L. Ed. 367 (1952).   Sections 574.104-.106 provide fair notice.   The statute does not encourage arbitrary or discriminatory application.   See Women’s Med. Ctr. v. Bell , 248 F.3d 411, 422 (5th Cir. 2001).   We conclude that the term “capacity,” as used here, is not so vague that people of common intelligence must guess at its meaning and would differ in its application.   See Smith v. Goguen , 415 U.S. 566 , 572 n.8, 94 S. Ct. 1242 , 1247 n.8, 39 L. Ed. 2d 605 (1974).

            As to N.P.N.’s contention that the statute in question is overly broad, he offers no argument or authority in support of that contention and therefore it is not presented for review.   Beasley v. Molett , 95 S.W.3d 590, 609 (Tex. App.–Beaumont 2002, pet. denied).   We overrule N.P.N.’s first and second issues.

Equal Protection             In his third and fourth issues, N.P.N. asserts the trial court erred in rendering judgment in violation of state and federal guarantees of equal protection.   He argues that treating individuals subject to a court order under Health and Safety Code Section 574.034 differently, while at the same time specifically stating in Section 574.109 that the orders issued under Section 574.106 are not a determination or adjudication of mental incompetency or a limitation of one’s rights, is an invidious declaration of a second class citizen.   N.P.N. did not make this argument in the trial court and has therefore not preserved it for review.   See Dreyer , 871 S.W.2d at 698 .   We overrule issues three and four.

Disposition             We affirm the trial court’s order for administration of psychoactive medication.

                                                                                                      BRIAN HOYLE                                                                                                                   Justice Opinion delivered April 18, 2007.

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

(PUBLISH)