                     In The
               Court of Appeals
 Sixth Appellate District of Texas at Texarkana
         ______________________________

               No. 06-11-00117-CV
         ______________________________



THE STATE OF TEXAS FOR THE BEST INTEREST
         AND PROTECTION OF S.W.




      On Appeal from the County Court at Law #2
                 Hunt County, Texas
              Trial Court No. M-10152




      Before Morriss, C.J., Carter and Moseley, JJ.
           Opinion by Chief Justice Morriss
                                                      OPINION

         On September 29, 2011, S.W., a twenty-five-year-old female, appeared in an emergency

room in Hunt County complaining of suicidal thoughts and acting aggressively toward

emergency-room staff.1 Diagnosed with schizoaffective disorder and as bipolar, S.W. has been

involuntarily committed to inpatient mental health treatment.2 Because we find no evidence in

the record of a recent overt act or continuing pattern of behavior that tends to confirm the

likelihood of serious harm to S.W. or a substantial deterioration of S.W.‘s ability to function

independently to provide for her basic needs, we reverse the judgment of the trial court.

         At the October 17, 2011, hearing on the State‘s application for court-ordered extended

mental health services,3 the trial court found that S.W. was mentally ill and that, as a result of her


1
 On that occasion, S.W. reported hearing voices telling her to kill herself and was agitated and threatening to the
emergency room staff. Approximately three or four days before the September 29 incident, S.W. had quit taking
certain prescription medications after complaining of abdominal pain, stomach cramps, constipation, nausea,
headaches, ear pain, and hearing difficulties.
2
According to S.W.‘s counsel, S.W. has now been released by her attending psychiatrist and is residing at her home
with her husband.
3
 The trial court took judicial notice of the court‘s file, which contained two physician‘s certificates of medical
examination for mental illness. The first certificate, dated September 29, 2011, was signed by Paul Lee, M.D., of
Hunt Regional Medical Center. The certificate indicates that S.W. has been hearing voices telling her to kill herself
and that she is extremely agitated and has no insight. The certificate further reflects the fact that S.W. is ―voicing
suicidal thoughts‖ and gives a diagnosis of schizoaffective disorder, bipolar-type. The second certificate, dated
October 16, 2011, was signed by Dante Burgos, M.D., of Hunt Regional Medical Center. The certificate indicates
that S.W. is reporting auditory hallucinations telling her to kill herself, is experiencing hopelessness and suicidal
thoughts, and is refusing and/or is resistant to taking needed medications. This certificate reflects a diagnosis of
schizophrenia, undifferentiated type vs. schizoaffective disorder. While the trial court could not properly take
judicial notice of the truth of the allegations contained within the certificates, it was proper to take judicial notice of the
file to show the documents were part of the court‘s files, that they were filed on a certain date, and that the documents
were before the court at the time of the hearing. See TEX. R. EVID. 201; Fuller v. State, 30 S.W.3d 441, 445 (Tex.
App.—Texarkana 2000, pet. ref‘d).

                                                              2
mental illness, she was likely to cause serious harm to herself. The trial court further found that

S.W. ―will, if not treated, continue to suffer severe and abnormal mental, emotional or physical

distress and will continue to experience deterioration of the ability to function independently and is

unable to make a rational and informed decision as to whether or not to submit to treatment.‖

       A trial court may order the temporary inpatient mental health services of a proposed patient

only if the fact-finder concludes, from clear and convincing evidence, that the proposed patient is

mentally ill and also satisfies at least one of the subparagraphs (A), (B), or (C) of

Section 574.034(a)(2) of the Texas Health and Safety Code, requiring that the proposed patient,

due to the mental illness:

       (A)     is likely to cause serious harm to himself;

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

       (C)     is:

                       (i)     suffering severe and abnormal mental, emotional, or
       physical distress;

                      (ii)    experiencing substantial mental or physical deterioration
       of the proposed patient‘s ability to function independently, which is exhibited by
       the proposed patient‘s inability, except for reasons of indigence, to provide for the
       proposed patient‘s basic needs, including food, clothing, health, or safety; and

                      (iii)  unable to make a rational and informed decision as to
       whether or not to submit to treatment.

TEX. HEALTH & SAFETY CODE ANN. § 574.034(a)(2) (West 2010). If the trial court finds that the

proposed patient meets the prescribed commitment criteria, it must then specify which criterion


                                                  3
forms the basis of the decision. TEX. HEALTH & SAFETY CODE ANN. § 574.034(c) (West 2010).

Here, mental illness is not disputed, and there is no claim S.W. is a threat to others. Rather, S.W.

contends the evidence is legally insufficient to establish, by clear and convincing evidence, a

recent overt act or a continuing pattern of behavior that tends to confirm (1) that S.W. was likely to

cause serious harm to herself or (2) S.W.‘s distress and the deterioration of her ability to function.

See TEX. HEALTH & SAFETY CODE ANN. § 574.034(a)(2)(A), (C).

       ―[A] State cannot constitutionally confine without more a nondangerous individual who is

capable of surviving safely in freedom by himself or with the help of willing and responsible

family members or friends.‖        O’Connor v. Donaldson, 422 U.S. 563, 576 (1975).                The

requirements for an involuntary commitment are strict because an involuntary commitment is a

drastic measure. In re Breeden, 4 S.W.3d 782, 789 (Tex. App.—San Antonio 1999, no pet.).

The evidentiary standards for involuntary commitment are high. State ex rel. E.E., 224 S.W.3d

791, 794 (Tex. App.—Texarkana 2007, no pet.); Harris v. State, 615 S.W.2d 330, 333 (Tex. Civ.

App.—Fort Worth 1981, writ ref‘d n.r.e.). The State has the burden of establishing by clear and

convincing evidence that the proposed patient meets at least one of the additional criteria listed in

Section 574.034(a)(2) of the Texas Health and Safety Code. State ex rel. L.H., 183 S.W.3d 905,

909 (Tex. App.—Texarkana 2006, no pet.). Clear and convincing evidence is that measure or

degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the

truth of the allegations sought to be established. TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(2)



                                                   4
(West 2008); State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010).

       To be clear and convincing, the evidence must include, unless waived, expert testimony

and evidence of a recent overt act or a continuing pattern of behavior that tends to confirm ―(1) the

likelihood of serious harm to the proposed patient or to others; or (2) the proposed patient‘s

distress and the deterioration of the proposed patient‘s ability to function.‖ TEX. HEALTH &

SAFETY CODE ANN. § 574.034(d) (West 2010). The threat of harm must be substantial and based

on actual dangerous behavior manifested by some overt act or threats in the recent past. Id.; State

ex rel. K.D.C., 78 S.W.3d 543, 547 (Tex. App.—Amarillo 2002, no pet.). Further, evidence that a

person has a mental illness or is exhibiting psychotic behavior alone is insufficient to justify

commitment on the grounds of mental distress and the deterioration of the ability to function

independently. T.G. v. State, 7 S.W.3d 248, 252 (Tex. App.—Dallas 1999, no pet.).

       Because the State‘s burden of proof is clear and convincing evidence, we apply a

heightened standard of review. See K.E.W., 315 S.W.3d at 20; In re C.H., 89 S.W.3d 17, 25 (Tex.

2002). To review the legal sufficiency of the evidence where the burden of proof is clear and

convincing evidence, we review all the evidence in the light most favorable to the finding to

determine whether a reasonable fact-finder could have formed a firm belief or conviction that the

finding was true. See K.E.W., 315 S.W.3d at 20. Disputed fact questions are resolved in favor of

the finding if a reasonable fact-finder could have done so. Contrary evidence is disregarded

unless a reasonable fact-finder could not have done so. City of Keller v. Wilson, 168 S.W.3d 802,



                                                 5
817 (Tex. 2005).

            Paul Lee, a medical doctor specializing in psychiatry, is a member of S.W.‘s treatment

team. Having evaluated S.W. in excess of ten times, Lee determined that S.W. suffered from

schizoaffective disorder of the bipolar-type. Lee opined that S.W. suffers from a combination of

mood and thought disorder. The thought disorder ―represents distortions in thought, delusions,

[and] hallucinations.‖ The mood disorder of the bipolar type results in very intense periods of

euphoria and intense periods of depression. Lee expressed great concern over the hallucinatory

activity. S.W. experienced frequent auditory hallucinations ―that expressed telling her to do

things, telling her to hurt herself.‖4 S.W. also experienced persecutory delusions, in which she

feels like people are trying to hurt her. One example of this type of delusion occurred during

S.W.‘s hospitalization—she reported that a peer followed her onto the unit intending to sexually

assault her. S.W. expressed a belief that this peer killed his mother and intended to kill all of the

people on the unit.5

            Undeniably, Lee‘s testimony tracked the language found in Section 574.034. However,

an expert opinion recommending involuntary commitment must be supported by the factual bases

on which it is grounded and not simply recite the statutory criteria. See K.T. v. State, 68 S.W.3d
4
 Both certificates of medical examination for mental illness indicate that S.W. reported experiencing suicidal
thoughts. Because the certificates were not admitted as evidence at trial, they cannot be considered in the
determination of whether temporary mental health services should be ordered. See TEX. HEALTH & SAFETY CODE
ANN. § 574.034(f) (West 2010).
5
    This allegation was investigated and determined to be baseless.



                                                            6
887, 893 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Breeden, 4 S.W.3d at 784. The expert

should describe the patient‘s specific behaviors on which his or her opinion is based. See K.D.C.,

78 S.W.3d at 550. Even when the evidence establishes that an individual is mentally ill and in

need of hospitalization, such evidence does not meet the statutory standard for involuntary

commitment. K.T., 68 S.W.3d at 892. Moreover, psychotic behavior is not evidence of a

―continuing pattern of behavior that tends to confirm the likelihood of serious harm to [the

proposed patient] or others.‖ K.D.C., 78 S.W.3d at 547 (quoting T.G., 7 S.W.3d at 252).

         Lee testified that, as a result of mental illness, S.W. is likely to cause serious harm to

herself. This opinion is based on the report of auditory hallucinations telling S.W. to harm

herself. In order to justify committing a patient to a mental health facility against his or her will,

the threat of harm to the patient or others must be substantial and based on actual dangerous

behavior manifested by some overt act or threats in the recent past. K.D.C., 78 S.W.3d at 547.

The record indicates only that S.W. may have had suicidal thoughts.6 S.W. advised the court that

she was not hearing voices and that she had no intention of harming herself. 7 Moreover, the

record fails to indicate that S.W. engaged in any recent overt act to actually harm herself. See In

re P.W., 801 S.W.2d 1, 2 (Tex. App.—Fort Worth 1990, writ denied) (reversing commitment order

6
 In this regard, Lee testified that S.W. reported ―frequent auditory hallucinations that expressed telling her to do
things, telling her to hurt herself.‖ C.W., S.W.‘s husband, testified that S.W. never said anything to him about suicide
and he did not believe S.W. was suicidal.
7
 S.W. advised the trial court through her attorney that she was too nervous to speak in the courtroom and wanted her
attorney to tell the judge what she would tell the court. There was no objection by the State and the court permitted
S.W. to offer her communications through her attorney.


                                                           7
despite evidence that P.W. called cousin asking about how to hold pistol to kill herself without

causing a lot of pain). Here, there is no indication S.W. actually took steps to implement any

suicidal thoughts she may have experienced. There is no evidence S.W. attempted suicide or

purposely harmed herself. Moreover, S.W. has not demonstrated a pattern of behavior that tends

to confirm she wants to commit suicide. See State ex rel. Best Interest & Protection of J.T.,

No. 06-08-00007-CV, 2008 WL 617513, at *8 (Tex. App.—Texarkana Mar. 7, 2008, no pet.)

(mem. op.) (patient engaged in pattern of attempting suicide that included an almost successful

attempt).

         Although no evidence suggests that S.W. has attempted to harm herself directly, the State

nevertheless claims that S.W.‘s intrusive and aggressive behavior is likely to result in serious harm

to S.W. because such behavior may incite others to harm her.8 Lee testified that S.W. suffered

from persecutory delusions and that she feels as if others are trying to hurt her. On multiple

occasions while on the unit, S.W. became agitated, uncontrollable, and intrusive with other

patients and with staff. As a result of this behavior, Lee opined that S.W. might invite injury to

herself.9


8
 The State takes the position that the relevant ―overt act‖ is an assault allegedly committed by S.W. in which S.W. was
―responding to feelings of somebody trying to hurt her or do bad things to her.‖ The record, however, provides no
details of any alleged assault. Moreover, Lee specifically testified that it is not likely that S.W. will cause serious
harm to others. Because there is no evidence that an alleged assault is probative of a finding that serious harm to S.W.
or to others is probable, the record does not support the imposition of temporary mental health services on that basis.
9
 In spite of this opinion, there is no indication in the record that S.W. suffered harm or injury as a result of her
delusions or intrusive behavior. Lee testified that it is unlikely that S.W. would harm others.


                                                           8
        The State relies on State v. K.E.W., 315 S.W.3d 16 (Tex. 2010), in arguing that behavior

that could invite injury to S.W. is sufficient to satisfy the statutory requirement that she is likely to

cause serious harm to herself. In K.E.W., the proposed patient was diagnosed with schizophrenia.

Id. at 18. On a visit to the mental health center as a patient, K.E.W. stated that he wanted to

impregnate some of the center‘s female staff and repeatedly asked for a particular staff member.

Id. K.E.W. was then taken to the emergency room, where he explained to physicians that he had

been chosen to help populate a new race of humans and that there was a group of women he

planned to find and impregnate, including his adult stepdaughter. Id.

        K.E.W.‘s treating physician testified at his commitment hearing that, even though K.E.W.

never expressed any intention to impregnate anyone against her will, the physician ―did not know,

given [K.E.W.‘s] state of mind, if he would understand that ‗no‘ means ‗no.‘‖ Id. at 24–25. The

court of appeals reversed the trial court‘s order of temporary inpatient commitment, finding there

was no evidence of an overt act or continuing pattern of behavior that tended to confirm either the

deterioration of K.E.W.‘s ability to function independently or that he was likely to cause serious

harm to others. Id.

        The high court reversed, finding sufficient evidence of an overt act.

        [T]he statute requires evidence of a recent act by the proposed patient, either
        physical or verbal, that can be objectively perceived and that is to some degree
        probative of a finding that serious harm to others is probable if the person is not
        treated. The overt act itself need not be of such character that it alone would
        support a finding of probable serious harm to others. See TEX. HEALTH & SAFETY
        CODE § 573.034(d)(1).


                                                   9
K.E.W., 315 S.W.3d at 24.

         The State contends that S.W.‘s intrusive and aggressive behavior on ―multiple occasions

while on the unit‖ establishes a continuing pattern of behavior which could invite serious harm to

S.W. This continuing pattern of behavior, the State maintains, is ―to some degree probative of a

finding‖ of serious harm. While it may be probative of some danger, that is not the standard

expressed by the Texas Supreme Court. That expressed standard requires that the overt act or

pattern of conduct be ―to some degree probative of a finding that serious harm to others is probable

if the person is not treated.‖10 Id. at 24. Here, Lee testified that the ―multiple occasions while on

the unit‖ in which S.W. became ―agitated to the point that she was uncontrollable and very

intrusive with other patients on the unit and with staff‖ caused him to conclude that ―she might

invite injury to herself.‖ Evidence that S.W.‘s aggressive behavior might invite injury falls short

of evidence that serious harm to S.W. is probable in the absence of treatment. We, therefore,

decline to apply the concept of ―invited injury,‖ as the evidence is insufficient to support such a

determination.11


10
  This standard applies to Section 573.034(d)(1) of the Texas Health and Safety Code. See K.E.W., 315 S.W.3d at 23.
Section 573.034(d)(1) provides that clear and convincing evidence must include, among other things, evidence of ―a
recent overt act or a continuing pattern of behavior that tends to confirm . . . the likelihood of serious harm to the
proposed patient or others. . . .‖ TEX. HEALTH & SAFETY CODE ANN. § 574.034(d)(1). While K.E.W. applied the
probable-harm standard only to an evaluation of danger to third parties, we see no reason that a different standard
should be applied in evaluating the likelihood of danger to the proposed patient—especially considering the statutory
language.
11
  The concept of ―invited injury‖ has heretofore been applied by Texas appellate courts on a limited basis in
involuntary commitment cases. See Taylor v. State, 671 S.W.2d 535, 538 (Tex. App.—Houston [1st Dist.] 1983, no

                                                         10
         Because there is no evidence of a recent overt act or continuing pattern of behavior that

tends to confirm that S.W. is likely to cause serious harm to herself, we conclude that the evidence

is legally insufficient to support that avenue to involuntary commitment. See TEX. HEALTH &

SAFETY CODE ANN. § 574.034(a)(2)(A), (d)(1).

         There is another ground on which the commitment could be affirmed. The trial court

found that S.W. ―will, if not treated, continue to suffer severe and abnormal mental, emotional or

physical distress and will continue to experience deterioration of the ability to function

independently and is unable to make a rational and informed decision as to whether or not to

submit to treatment.‖

         Lee testified that S.W. is unable to make a rational, informed decision as to whether to

submit to treatment. A person is dangerous to himself or herself if he or she cannot make a

rational decision to receive treatment. The threat results from an inability to seek treatment which

might improve her condition. L.S. v. State, 867 S.W.2d 838, 843 (Tex. App.—Austin 1993, no

pet.); Johnson v. State, 693 S.W.2d 559, 563 (Tex. App.—San Antonio 1985, no writ).

         While S.W. may not always be in a position to make a rational decision to receive

treatment, the evidence indicates that she is not alone to make such a decision. C.W., S.W.‘s

writ) (proposed patient‘s hostile and provocative behavior toward family and others could foreseeably result in injury
to the proposed patient, thus placing proposed patient in need of hospitalization for his or her own protection); Seekins
v. State, 626 S.W.2d 97, 99 (Tex. App.—Corpus Christi 1981, no writ) (proposed patient‘s behavior of making
obscene gestures and directing profanity at passers-by, shouting of obscenities with clenched fists to customers at
store, and ―goosing‖ female customers is provocative conduct which could result in physical danger to proposed
patient); Reed v. State, 622 S.W.2d 910, 911 (Tex. App.—Fort Worth 1981, no writ) (proposed patient‘s violent
behavior toward others required submission to treatment for her own welfare and protection and/or protection of
others). These cases all predate K.E.W. and might be seen as violating its probable-harm standard.

                                                          11
husband, testified that he would take S.W. to her psychiatrist—Dr. Burgos—when the need arises,

and will make certain S.W.‘s medications are refilled in a timely manner. If S.W. were to ever

exhibit any suicidal tendencies, C.W. testified that he would get help immediately. C.W. does the

cooking and the cleaning, and generally looks after and takes care of S.W.

       The record suggests that S.W. is capable of surviving safely in freedom by herself with the

help of C.W. Her inability to make a rational decision on her own to receive treatment is thus not

a factor which mitigates in favor of concluding that S.W. should be confined against her will on

this basis. See TEX. HEALTH & SAFETY CODE ANN. § 574.034(a)(2)(C); O’Connor, 422 U.S. at

576.

       Lee further testified that, if not treated, S.W. will continue to suffer from mental illness,

which will continue to worsen over time. Currently, S.W. is receiving treatment. C.W. testified

that he will make sure S.W.‘s medications are refilled in a timely fashion and that he will seek

treatment for S.W. whenever necessary. Finally, Lee testified that S.W. is able to provide for her

basic needs.

       Moreover, evidence of hallucinations or delusions, without more, is insufficient to justify

involuntary commitment on the grounds of mental distress and the deterioration of the ability to

function independently. E.R., 287 S.W.3d 297, 306 (Tex. App.—Texarkana 2009, no pet.).

Evidence of S.W.‘s delusions and hallucinations confirm that S.W. is mentally ill. However, an

expert medical diagnosis of mental illness alone is not enough to support involuntary commitment.



                                                12
E.E., 224 S.W.3d at 794; see Armstrong v. State, 190 S.W.3d 246, 252 (Tex. App.—Houston [1st

Dist.] 2006, no pet.) (evidence of effects of mental illness does not necessarily establish evidence

of substantial mental or physical deterioration unless effects impair ability to function

independently or provide basic needs); see also T.G., 7 S.W.3d at 251–52 (physician‘s diagnosis

that appellant suffered from ―psychosis NOS‖ not sufficient to support commitment). Lee‘s

testimony, required under the statute to support commitment, does not provide evidence of a recent

overt act or a continuing pattern of behavior confirming S.W.‘s distress and deterioration of her

ability to function.

        The facts on which Lee has based his conclusions do not present clear and convincing

evidence to support the trial court‘s order. Therefore, this record does not support the findings

required by Section 574.034 of the Texas Health and Safety Code by clear and convincing

evidence, because there was no evidence of a recent overt act or continuing pattern of behavior that

tends to confirm the likelihood of serious harm to S.W. or a substantial deterioration of S.W.‘s

ability to function independently to provide for her basic needs. See TEX. HEALTH & SAFETY

CODE ANN. § 574.034(a), (d)(1), (2).

        We reverse the trial court‘s judgment and render judgment denying the State‘s application

for mental health services. Having been advised by S.W.‘s counsel that S.W. has already been

released, we need not order that release. See TEX. HEALTH & SAFETY CODE ANN. § 574.033(b)

(West 2010); see also TEX. R. APP. P. 43.2(c).



                                                 13
                                          Josh R. Morriss, III
                                          Chief Justice

Date Submitted:   December 8, 2011
Date Decided:     December 9, 2011




                                     14
