Reversed and Rendered and Memorandum Opinion filed September 24, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00730-CV


                    ROBERT LOUIS MARTIN, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 232nd District Court
                            Harris County, Texas
                        Trial Court Cause No. 877816


             MEMORANDUM OPINION
      This is an accelerated appeal from the trial court’s order extending
appellant’s commitment for inpatient mental health services for one year. Under
this court’s precedent, Health and Safety Code section 574.035(g) applied to the
trial court’s hearing on this issue and, therefore, to affirm the trial court’s order,
medical or psychiatric testimony must have been taken at the hearing. Because no
such testimony was taken at the hearing, we reverse the trial court’s order and
render an order denying the request for renewal of the prior order for extended
inpatient mental health services.

                I.     FACTUAL AND PROCEDURAL BACKGROUND

      Appellant Robert Louis Martin was charged by indictment with aggravated
assault after he stabbed a cab driver multiple times with a knife. Following a
bench trial, in March 2002, the trial court found Martin not guilty by reason of
insanity. Martin was committed to the maximum security unit at North Texas
State Hospital. Martin v. State, 222 S.W.3d 532, 533 (Tex. App.—Houston [14th
Dist.] 2007, pet. denied).    The trial court extended Martin’s commitment for
inpatient mental health services various times. See id. In April 2006, the trial
court released Martin from inpatient care and ordered Martin to participate in
outpatient mental health services. In March 2007, this court reversed the trial
court’s June 2005 order extending Martin’s commitment for inpatient mental
health services, concluding that subsection (g) of Health and Safety Code section
574.035 applied to the recommitment hearing and that the evidence was legally
insufficient to support the trial court’s order because no medical or psychiatric
testimony was taken at the hearing, as required by that statute. See id. at 536–37.
      In October 2007, the trial court signed an order revoking Martin’s outpatient
supervision and ordered Martin committed to the maximum security unit at North
Texas State Hospital for inpatient mental health services. The trial court extended
Martin’s commitment for inpatient mental health services various times through
September 5, 2014.      In June 2014, the state hospital in which Martin was
committed recommended to the trial court that Martin be released from inpatient

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care and ordered to participate in outpatient mental health services. The State
requested that Martin’s commitment for inpatient mental health services be
renewed for another year.
       On September 5, 2014, the trial court held a hearing as to whether it should
extend Martin’s commitment for inpatient mental health services. After hearing
testimony and admitting documentary evidence, the trial court signed an order
extending Martin’s commitment for inpatient mental health services for another
year (the “Order”).
                               II.    ISSUE AND ANALYSIS

       In his sole appellate issue challenging the Order, Martin asserts that the
evidence at the hearing is legally insufficient to support the trial court’s action in
extending his commitment for inpatient mental health services.1 Even though the
commitment proceedings in this case resulted from a criminal prosecution, these
commitment proceedings are civil in nature. Campbell v. State, 85 S.W.3d 176,
180 (Tex. 2002).

       The court conducted the hearing that resulted in the Order under former
article 46.03, section 4(d)(5) of the Texas Code of Criminal Procedure. See Act of
May 25, 1983, 68th Leg., R.S., ch. 454, § 3, sec. 4(d)(5), 1983 Tex. Gen. Laws
2640, 2640–46 (repealed 2005) (current version at Tex. Code Crim. Proc. Ann. art.
46C.261 (West 2006)). Under the unambiguous language of this statute, the trial
court must conduct such hearings “pursuant to the provisions of the Mental Health
Code . . . .” Id.; Campbell, 85 S.W.3d at 181 (holding that article 46.03, section
4(d)(5) hearing was required to be conducted pursuant to the Texas Mental Health

1
 More than twelve months have passed since the trial court signed the Order, and the Order has
expired. Nonetheless, under the collateral-consequences exception, this appeal is not moot. See
Martin, 222 S.W.3d at 533, n.1.
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Code). The Supreme Court of Texas already has decided that not all provisions of
the Mental Health Code apply to such a hearing; only those Mental Health Code
provisions pertinent to such a proceeding apply. See Campbell, 85 S.W.3d at 181–
82. This court already has determined that subsections (a), (e), and (g) of section
574.035 of the Health and Safety Code are pertinent and applicable to such a
hearing. See Tex. Health & Safety Code § 574.035(a),(e),(g) (West Supp. 2014);
Campbell v. State, 125 S.W.3d 1, 5–10 (Tex. App.—Houston [14th Dist.] 2002, no
pet.) (applying subsections (a) and (e) of section 574.035 of the Health and Safety
Code to a recommitment hearings under former article 46.03, section 4(d)(5));
Martin, 222 S.W.3d at 534–36 (holding that subsection (g) of section 574.035 of
the Health and Safety Code applies to recommitment hearings under former article
46.03, section 4(d)(5)). When the trial court conducted the hearing and signed the
Order, these subsections provided in pertinent part as follows:

      (a) The judge may order a proposed patient to receive court-ordered
      extended inpatient mental health services only if the jury, or the judge
      if the right to a jury is waived, finds, from clear and convincing
      evidence, that:
             (1) the proposed patient is mentally ill;
             (2) as a result of that mental illness the proposed patient:
             (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
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      whether or not to submit to treatment;
            (3) the proposed patient’s condition is expected to continue for
      more than 90 days;
      ...
      (e) To be clear and convincing under Subsection (a), the evidence
      must include 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
      others; or
            (2) the proposed patient’s distress and the deterioration of the
      proposed patient’s ability to function.
      ...
      (g) The court may not make its findings solely from the certificates of
      medical examination for mental illness but shall hear testimony. The
      court may not enter an order for extended mental health services
      unless appropriate findings are made and are supported by testimony
      taken at the hearing. The testimony must include competent medical
      or psychiatric testimony.

Tex. Health & Safety Code § 574.035(a),(e),(g) (West Supp. 2014).

      Under subsection (g), the trial court could not recommit Martin absent
appropriate findings supported by testimony taken at the hearing. Id.; Martin, 222
S.W.3d at 535. The testimony must include competent medical or psychiatric
testimony. Tex. Health & Safety Code § 574.035(g); Martin, 222 S.W.3d at 535.
The record reflects that, at the hearing, the trial court did not hear any “competent
medical or psychiatric testimony.” Therefore, under this court’s binding precedent
in Martin, the evidence is legally insufficient to support the trial court’s order. See
Martin, 222 S.W.3d at 537.
      The State agrees that (1) in the prior Martin case, this court held that
subsection (g) of section 574.035 applies to recommitment hearings like the one at
issue in today’s case; (2) subsection (g) of section 574.035 requires the trial court
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to hear “competent medical or psychiatric testimony” before it can sign an order
for extended mental health services; and (3) the trial court did not hear any
“competent medical or psychiatric testimony” at the hearing on September 5, 2014.
Instead, the State argues that this court’s prior precedent holding that subsections
(e) and (g) apply is erroneous and should be reconsidered. See Campbell, 125
S.W.3d at 5–10; Martin, 222 S.W.3d at 534–36.

       The parties have not cited and research has not revealed (1) a decision from
the Supreme Court of Texas or this court sitting en banc which is on point and
contrary to these prior panel opinions, or (2) a material change in the relevant
statutes since these prior cases were decided. Therefore, we are bound by these
prior panel opinions. See Glassman v. Goodfriend, 347 S.W.3d 772, 781 (Tex.
App.—Houston [14th Dist.] 2011, pet. denied) (en banc) (noting that under
principles of horizontal stare decisis, a panel of this court is bound by a prior
holding of another panel of this court absent a decision from a higher court or this
court sitting en banc which is on point and contrary to the prior panel holding or an
intervening and material change in the statutory law). If the State would like this
court to reconsider these prior precedents, the proper course would be to seek en
banc consideration. See id.

       Under this court’s precedent in Martin, the appropriate appellate disposition
is to reverse the Order and render an order denying the State’s request for renewal
of the prior order for inpatient mental health services. See Martin, 222 S.W.3d at
537.

                                III.   CONCLUSION

       Under this court’s binding precedent, subsections (e) and (g) of section
574.035 apply to recommitment hearings like the one at issue in this case, and the

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trial court was required to hear “competent medical or psychiatric testimony”
before it could sign a recommitment order. Because the trial court did not hear any
such testimony at the hearing on September 5, 2014, this court must conclude that
the evidence is legally insufficient to support the Order. Accordingly, we sustain
Martin’s sole issue, reverse the Order, and render an order denying the State’s
request for renewal of the prior order for inpatient mental health services.   See
Martin, 222 S.W.3d at 537.




                                      /s/       Kem Thompson Frost
                                                Chief Justice




Panel consists of Chief Justice Frost and Justices Boyce and McCally.




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