Affirmed and Majority and Dissenting Opinions filed August 28, 2018.




                                      In The

                       Fourteenth Court of Appeals

                               NO. 14-17-00248-CV


IN THE MATTER OF THE GUARDIANSHIP OF MARK SCOTT CROFT



                    On Appeal from the Probate Court No. 3
                            Harris County, Texas
                        Trial Court Cause No. 415,844


                    DISSENTING OPINION

      Mark Scott Croft is ready to get his life back. He testified before a Texas
probate judge that, if the guardianship of his estate were discharged, he would buy a
home and start looking for a job.

      The Florida court that originally established his guardianship agreed and
discharged the Florida guardianship over his person.

      The court-appointed psychiatrist agreed and, after an exhaustive examination
and records review, including consultation with a neuropsychologist, opined that
Croft possesses the ability to manage his financial affairs. See Majority Op. at 7–11.

      The court-appointed guardian ad litem agreed and filed a report concurring
with the psychiatrist’s opinion.

      And yet, the probate judge concluded that Texas Estates Code section
1202.155(3) precluded him from granting Croft’s application to close the Texas
guardianship of his estate. That subsection requires the following finding: “(3) if the
ward’s incapacity resulted from a mental condition, that the ward’s mental capacity
is completely restored.” Tex. Est. Code § 1202.155(3).

      The trial judge determined that Croft could not manage his own estate because
he suffers from Bipolar Disorder, migraines, and impaired memory and
concentration, rendering his mental capacity as less than completely restored.

      Apparently, the trial judge construed the statutory language as requiring that
Croft’s mental capacity be just as it was before the guardianship was established.
This is an incorrect construction of the statute.

      Unfortunately, none of us can restore our mental capacity to what it was ten
years ago, with or without experiencing a traumatic event such as Croft suffered in
March 2009. Our memory fades, our mood swings, and our filter loosens or
dislodges completely. We, like Croft, have trouble multi-tasking. That does not
mean, however, that we are substantially unable to manage our own financial affairs.

      All that is required under section 1202.155 is a finding that Croft has
completely regained his ability to “(A) provide food, clothing, or shelter for
[himself]; (B) care for [his] own physical health; and (C) manage [his] own financial
affairs.” See id. § 1002.017 (2) (definition of incapacitated person). The Florida trial
judge concluded that Croft has regained his ability under (A) and (B) and ordered
him restored to full capacity over those matters. The trial judge should incorporate

                                           2
those orders—thus, all he needed to determine in Texas was whether Croft had
regained his ability to manage his own financial affairs.1

       In this trial, everyone agreed that Croft has completely regained his ability to
manage his own financial affairs, except the trial judge. Perhaps Croft would not
manage things perfectly, but he could manage them competently. Factually
insufficient evidence supports the trial judge’s conclusion that Croft is substantially
unable to do so (“#4 [Croft] remains incapacitated to manage his financial affairs.”).
Factually insufficient evidence supports the trial judge’s finding (“11”) that Croft
admitted that his physical and mental conditions interfere with his ability to manage
his financial affairs.2 Indeed, Croft testified, “I feel very confident I can take [care]
of my own affairs.”

       None of the evidence speaks to Croft’s inability to manage his own financial
affairs. Interestingly, the majority emphasizes a period of time when Croft was
without medication and housing. However, the more reasonable inference from this
episode is not that Croft cannot manage his financial affairs, but that his guardian in
Texas cannot. Dr. Ray’s report stated:

       Apparently, as he had a guardian, a budget had to be prepared and
       approved, and it kept not happening. . . . He ended up homeless,
       sleeping at the marina, showering in a gym and eating at soup kitchens.
       He was without his medications for 6-8 weeks; finally he went to the
       judge in Florida who threatened to ‘put someone in jail’ if it weren’t
       straightened out. He says he at that time blamed the Guardian of his
       Estate but has come to realize that he didn’t understand the influences
       and pressures on her. He has tried to make amends but she declines to



       1
         Generally, under principles of comity, Texas courts should give effect to the judicial
decisions of other states. See, e.g., In re BP Oil Supply Co., 317 S.W.3d 915, 918 (Tex. App.—
Houston [14th Dist.] 2010, orig. proc.).
       2
           The majority did not identify any evidence from Croft’s testimony to support this finding.

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       take his calls.3

       The trial judge disregarded the expert opinion of Dr. Ray, whom he appointed
and had the opportunity to examine. All the facts detailed by the trial judge and the
evidence detailed by the majority were considered by Dr. Ray before reaching her
expert conclusion that Croft is substantially able to manage his financial affairs. No
one has argued, and the judge did not find, that Dr. Ray’s opinion was unfounded or
that she has not qualified to give her opinion. See City of Keller v. Wilson, 168
S.W.3d 802, 813 (Tex. 2005). While it is undeniable that an experienced probate
judge often determines capacity, the assistance of a medical expert is important, if
not crucial. See Hunter v. Ford Motor Co., 305 S.W.3d 202, 208 (Tex. App.—Waco
2009, no pet.) (“Uncontroverted expert testimony may be regarded as conclusive if
the nature of the subject matter requires the factfinder to be guided solely by the
opinion of experts and the evidence is otherwise credible and free from
contradictions and inconsistency.”) (citing Uniroyal Goodrich Tire Co. v. Martinez,
977 S.W.2d 328, 338-339 (Tex. 1998)).

       The trial judge got it wrong this time. Because the majority concludes
otherwise, I respectfully dissent. Give Croft back his life—and his money.



                                            /s/       Martha Hill Jamison
                                                      Justice



Panel consists of Justices Boyce, Jamison, and Brown (Boyce, J., majority).



       3
         In a similar vein, Dr. Boake’s report stated that Croft “said he is in conflict with the
guardian of the estate about managing his expenses and legal affairs.”

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