      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00631-CV



                                   Carolyn Barnes, Appellant

                                                 v.

                                  The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
    NO. 10-663-K368, HONORABLE LLOYD DOUGLAS SHAVER, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Carolyn Barnes appeals the district court’s civil-commitment-renewal order that was

ultimately vacated before her trial on a felony offense of aggravated assault with a deadly

weapon. See Tex. Health & Safety Code § 574.070; Tex. Penal Code § 22.02. The State contends

that this appeal is moot because Barnes already received the relief she sought and because recognized

exceptions to the mootness doctrine do not apply in this context. Barnes filed no response to the

mootness argument. We will dismiss this appeal as moot.


                                        BACKGROUND1

               Carolyn Barnes was convicted of aggravated assault with a deadly weapon after

she pointed a gun at and shot in the direction of a 68-year-old census worker who approached



       1
          The background is summarized from testimony and evidence in the record of this appeal
and the appeal from Barnes’s criminal conviction. The parties’ briefing also relied on both records.
Barnes’s property while canvassing for the 2010 census. See Tex. Penal Code § 22.02; Barnes

v. State, No. 03-13-00434-CR, 2016 Tex. App. LEXIS ____ (Tex. App.—Austin July 13, 2016,

no pet. h.) (mem. op.). When uniformed sheriff’s officers arrived to investigate, Barnes called 9-1-1

reporting that people were outside her home intending to kill her. Upon Barnes’s initial intake

into jail, a magistrate judge sought an assessment for mental illness. See Tex. Code Crim. Proc.

art. 16.22 (authorizing magistrate to seek mental-health evaluation when there is reasonable cause

to believe—based on information including defendant’s behavior immediately before, during,

and after arrest—that defendant has mental illness). The State later filed a similar motion for

appointment of experts to examine Barnes for competency. See id. art. 46B.021. Barnes was

examined and initially found competent to stand trial.

               However, the court ordered another examination approximately ten months later

when defense counsel noted that Barnes seemed to have had a “substantial decline in psychiatric

condition.” After mental-health experts issued reports diagnosing Barnes with delusional disorder

(paranoid/persecutory type) and mood disorder and concluding that she was incompetent to

stand trial, the court ordered Barnes’s commitment to a mental-health facility for restoration to

competency. See id. art. 46B.073. During her commitment, Barnes expressed her belief that other

patients were stalking her and that hospital staff members were deliberately inciting patients

to assault her. Reports to the court from mental-health experts diagnosed Barnes with psychotic

disorder, mood disorder, personality disorder, and major depressive disorder. Relying on these

reports, the court signed a twelve-month extension and then a twelve-month renewal of Barnes’s

civil commitment. See id. arts. 46B.102, 46B.104; Tex. Health & Safety Code §§ 574.035, .066.

Only the latter order is at issue here. That unexpired order was effectively vacated when the court

                                                 2
signed an order finding, based on new reports from mental-health experts, that Barnes was competent

to stand trial. The case proceeded to trial, and the jury convicted Barnes. This appeal followed.


                                          DISCUSSION

               A case becomes moot when a court’s action on the merits cannot affect the parties’

rights or interests. Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012). The State argues

that this appeal is moot because Barnes already received the relief she sought—i.e., having her

renewal order for extended mental-health services set aside—and because recognized exceptions to

mootness do not apply in this context. We agree.


Recognized mootness exceptions

               One recognized exception to the mootness doctrine is the “capable-of-repetition-yet-

evading-review” exception. State v. Lodge, 608 S.W.2d 910, 912 (Tex. 1980). Under this exception,

which applies only in rare circumstances, Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001), the

challenged act is of such short duration that appellants cannot obtain review before the issue

becomes moot and there is a reasonable expectation that the same action will occur again if the issue

is not considered. In re Uresti, 377 S.W.3d 696, 696 (Tex. 2012). Another recognized exception

to mootness is the “collateral-consequences” exception. Lodge, 608 S.W.2d at 912. The collateral

consequences exception applies only in narrow circumstances, when adverse consequences sustained

by appellant will not be cured by vacating the underlying judgment. Marshall v. Housing Auth. of

San Antonio, 198 S.W.3d 782, 785 (Tex. 2006); see Lodge, 608 S.W.2d at 912 (concluding that

short-term orders and sentences preclude appellants from exonerating themselves by appeal).



                                                 3
                Both mootness exceptions were applied in State v. Lodge to allow review of

temporary mental-health-commitment orders that, unlike this order, would not exceed 90 days. See

Lodge, 608 S.W.2d at 911-12. The court found that such short-term orders allowed insufficient

time for appellate review and for the removal of collateral consequences of a mental-health

commitment through a favorable decision. Id. at 912; see State v. K.E.W., 315 S.W.3d 16, 20

(Tex. 2010) (citing Lodge in concluding that expired temporary-commitment order for mental-health

services was not moot). The holding in Lodge was extended without analysis to cases addressing

long-term commitment orders where, unlike here, appellants remained subject to further court-

ordered mental-health services and supervision. See, e.g., Marroquin v. State, 112 S.W.3d 295, 304

n.6 (Tex. App.—El Paso 2003, no pet.) (noting possibility of subsequent commitment proceedings

against appellant); Campbell v. State, 68 S.W.3d 747, 754 (Tex. App.—Houston [14th Dist.] 2001)

(noting that challenged commitment order expired during appeal but was replaced by new

commitment order for appellant who was acquitted by reason of insanity), aff’d, 85 S.W.3d 176, 180

(Tex. 2002); cf. L.S. v. State, 867 S.W.2d 838, 840 n.1 (Tex. App.—Austin 1993, no writ) (noting

that mootness exception applied by agreement of parties to case involving appellant with mental

retardation).


Mootness exceptions inapplicable

                Neither mootness exception applies here. The “capable-of-repetition-yet-evading-

review” exception does not apply because the “capable-of-repetition” element is not met. Barnes

is not confined in a mental-health hospital, she is not subject to the vacated renewal order, and

there is no indication that in the future she will be subject to the renewal of a civil-commitment


                                                4
order pending her competency to stand trial for another felony offense. See Lara, 52 S.W.3d at 184-

85 (rejecting “capable-of-repetition” element because it would be speculative and unreasonable

for court to expect that appellants, former inmates, would be charged with future crime leading to

their incarceration in jail); id. at 185 (recognizing former inmates were legally required to prevent

their own recidivism); see also In re M.C., No. 11-98-00310-CV, 1999 WL 33748086, at *1

(Tex. App.—Eastland May 6, 1999, no pet.) (not designated for publication) (dismissing as moot

appeal of order for extended inpatient mental-health services because there was no reasonable

expectation that appellant would again be involuntarily committed to mental hospital and kept after

she no longer met statutory criteria for her commitment).

               The “collateral consequences” exception to the mootness doctrine does not apply

because there is no exoneration or removal of stigma that would be redressed by this appeal. The

mootness doctrine is inapplicable when the stigma of a mental-health-commitment order will not

be redressed by appeal. See State ex rel. E.C., No. 14-15-00362-CV, 2015 Tex. App. LEXIS 12641,

at *5-6 (Tex. App.—Houston [14th Dist.] Dec. 15, 2015, no pet.) (mem. op.) (concluding that appeal

was moot and any stigma attached to involuntary commitment would not be redressed by appeal

because appellant challenged only his placement in one mental-health facility instead of another);

see also In re M.C., 1999 WL 33748086, at *1 (concluding that appeal was moot and any stigma

attached to involuntary commitment would not be redressed by reversing order for extended inpatient

mental-health services when preexisting order committing appellant to state mental-health hospital

remained). Barnes’s appeal here challenges only the renewal order for her civil commitment,

not any prior commitment order. Further, Barnes’s only alternative to receipt of inpatient mental-

health services while criminal charges were pending was to stand trial for the felony offense

                                                 5
of aggravated assault with a deadly weapon. See Tex. Code Crim. Proc. art. 46B.116 (“If the

defendant is found competent to stand trial, the proceedings on the criminal charge may proceed.”).

Standing trial for that crime would itself carry a stigma, which would be unaffected by any ruling

on this vacated order renewing her civil commitment. See Thrift v. Hubbard, 974 S.W.2d 70, 81

(Tex. App.—San Antonio 1998, pet. denied) (noting “gross social stigma” attached to pending

criminal charges).


                                        CONCLUSION

               We dismiss this appeal as moot.




                                             Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Pemberton and Bourland

Dismissed as Moot

Filed: July 13, 2016




                                                 6
