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
2

O P I N I O N

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

 

1On 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. 

2According to S.W.‘s counsel, S.W. has now been released by her attending psychiatrist and is residing at her home 

with her husband.

3The 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).
3

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 
4

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) 
5

(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, 
6

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 

 

4Both 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).

5This allegation was investigated and determined to be baseless. 
7

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. 
8

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 

 

8The 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. 
9

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).
10

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

 

10This 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.

11The 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 
11

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.
12

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. 
13

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).
14

Josh R. Morriss, III

Chief Justice

Date Submitted: December 8, 2011

Date Decided: December 9, 2011