COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-15-00163-CV 

IN THE MATTER OF S.S.

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FROM THE PROBATE COURT OF DENTON COUNTY

TRIAL COURT NO. MH-2015-216

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MEMORANDUM OPINION1

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This is an accelerated appeal from an order for temporary court-ordered 

mental health services. We reverse and render. 

Background Facts

The State filed an application for temporary mental health services for S.S. 

on April 29, 2015. The trial court held a hearing on the application on May 13, 

2015. The trial court found that S.S. was mentally ill and as a result of that 

mental illness will, if not treated, continue to suffer severe and abnormal mental, 

 1

See Tex. R. App. P. 47.4.
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emotional, or physical distress; will continue to experience substantial mental or 

physical deterioration of his ability to function independently, which was exhibited 

by his inability to provide for his basic needs, including food, clothing, health, or 

safety; and is unable to make a rational and informed decision as to whether or 

not to submit to treatment. The trial court committed S.S. for inpatient care not to 

exceed ninety days. This appeal followed. 

Discussion

1. Certificates of medical examination

In his first issue, S.S. argues that the trial court lacked jurisdiction over this 

case because the State failed to file the two certificates of medical examination 

as required by the health and safety code. See Tex. Health & Safety Code Ann. 

§ 574.009 (West 2010). Section 574.009 states,

(a) A hearing on an application for court-ordered mental health 

services may not be held unless there are on file with the court at 

least two certificates of medical examination for mental illness 

completed by different physicians each of whom has examined the 

proposed patient during the preceding 30 days. . . . 

. . . . 

(d) If the certificates required under this section are not on file 

at the time set for the hearing on the application, the judge shall 

dismiss the application and order the immediate release of the 

proposed patient if that person is not at liberty.

Id. 

A certificate of medical examination must include:

(1) the name and address of the examining physician;

(2) the name and address of the person examined;
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(3) the date and place of the examination;

(4) a brief diagnosis of the examined person’s physical and mental 

condition;

(5) the period, if any, during which the examined person has been 

under the care of the examining physician;

(6) an accurate description of the mental health treatment, if any, 

given by or administered under the direction of the examining 

physician; and

(7) the examining physician’s opinion that:

(A) the examined person is a person with mental illness; and

(B) as a result of that illness the examined person is likely to 

cause serious harm to the person or to others or 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) not able to make a rational and informed decision as 

to whether to submit to treatment.

Id. § 574.011(a) (West 2010).

S.S. argues that one of the two certificates on file at the time of the hearing 

was incomplete. The certificate from Dr. Diana Isachievici stated that S.S. was 

experiencing substantial mental or physical deterioration of his ability to function 

independently and was unable to make a rational informed decision as to 

whether or not to submit to treatment, but it did not state that S.S. was likely to 
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cause serious harm to himself or to others or that he was suffering severe and 

abnormal mental, emotional, or physical distress. 

This court has previously held that defects in the certificates of medical 

examination are not jurisdictional, and a trial court does not err by holding the 

hearing on the application. In re D.T.M., 932 S.W.2d 647, 652 (Tex. App.—Fort 

Worth 1996, no writ); see Campbell v. State, Nos. 14-99-00620-CV, 14-00621-

CV, 2000 WL 675142, at *9 (Tex. App.—Houston [14th Dist.] May 25, 2000, pet. 

denied) (not designated for publication) (following D.T.M. and holding that trial 

court did not err by refusing to dismiss case due to deficiencies in the medical 

certificates). We therefore overrule S.S.’s first issue. 

2. Recent overt act or continuing pattern of behavior

In his second issue, S.S. argues that the State failed to prove by clear and 

convincing evidence a recent overt act or a continuing pattern of behavior that 

tends to confirm either the likelihood of serious harm to him or others or his 

distress and the deterioration of his ability to function. See Tex. Health & Safety 

Code Ann. § 574.034(d) (West Supp. 2014).

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) (West 2008); Tex. Fam. Code Ann. § 101.007 (West 2014); U-Haul

Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012); State v. K.E.W., 

315 S.W.3d 16, 20 (Tex. 2010). This intermediate standard of proof falls 
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between the preponderance standard of proof applicable to most civil 

proceedings and the reasonable doubt standard of proof applicable to most 

criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); State v. 

Addington, 588 S.W.2d 569, 570 (Tex. 1979). While the proof must be of a 

heavier weight than merely the greater weight of the credible evidence, there is 

no requirement that the evidence be unequivocal or undisputed. Addington, 

588 S.W.2d at 570.

Proof of mental illness, such as evidence of psychosis, hallucinations, or 

delusions, without more, does not fulfill the statutory requirement for ordering 

involuntary inpatient mental health services. State ex rel. L.T., 386 S.W.3d 271, 

275 (Tex. App.—Texarkana 2012, no pet.); In re State ex rel. K.D.C., 78 S.W.3d 

543, 551 (Tex. App.—Amarillo 2002, no pet.). There must also be an overt act or 

continuing pattern of behavior that tends to confirm the likelihood of either 

serious harm or deterioration. See Tex. Health & Safety Code Ann. 

§ 574.034(d); K.E.W., 315 S.W.3d at 23; State ex rel. S.W., 356 S.W.3d 576, 

580 (Tex. App.—Texarkana 2011, no pet.).

The only testimony at the commitment hearing came from Dr. James 

Shupe. Dr. Shupe testified that S.S. came into contact with the police after they 

had received phone calls about bizarre behavior. S.S. told the police that he had 

been fighting other people and disarming them of their weapons. The police did 

not find any weapons on S.S. 
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Dr. Shupe testified that S.S. remained psychotic, had an “extremely 

limited” understanding of what was going on, and did not believe that he had an 

illness or a reason to seek treatment. He believed that S.S. was not likely to 

cause serious harm to himself or to others. He did say that S.S. was suffering 

from severe and abnormal distress that, if untreated, would continue and would 

cause deterioration of his ability to function. Dr. Shupe testified that S.S. was 

involved in a family violence incident, but that incident occurred on 

September 28, 2014, over six months before the most recent events. Dr. Shupe 

mentioned “at least two other incidences since [S.S.] was released from jail 

approximately 90 days ago,” but Dr. Shupe did not explain what those instances 

were or how they could be construed as a continuing pattern of behavior. 

When asked what specifically had led Dr. Shupe to the conclusion that 

S.S. could not provide for his basic needs, Dr. Shupe said, “Basically, that [S.S.]

won’t even stay in his own house that’s being provided for him. He goes out in 

the community, believes he’s fighting other people, and has to have the police 

come multiple times over the last six months to pick him up.” Dr. Shupe said that 

S.S. did not appear emaciated, that he appeared appropriately dressed, and that 

he seemed to be in good health other than his psychosis. Dr. Shupe also read 

Dr. Isachievici’s certificate of medical examination and stated that she had also 

reported that S.S. was not likely to cause serious harm to himself or others. 

Although the evidence clearly indicates that S.S. suffers from a mental 

illness, it does not demonstrate an overt act or a continuing pattern of behavior 
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sufficient to support his commitment. There is no evidence of what harm would 

befall S.S. or others by his leaving his house or how it was a sign of his 

deterioration. See In re C.O., 65 S.W.3d 175, 182 (Tex. App.—Tyler 2001, no 

pet.) (holding that testimony that did not explain the nature of the anticipated 

impairment and resulting harm was insufficient to support commitment); D.J. v. 

State, 59 S.W.3d 352, 355 (Tex. App.—Dallas 2001, no pet.) (holding that 

evidence of poor nutrition, noncompliance with medication, and “wandering” 

away from home was not sufficient to support finding that patient was likely to 

harm herself or that she was distressed and deteriorating within the meaning of 

the statute); In re J.S.C., 812 S.W.2d 92, 96 (Tex. App.—San Antonio 1991, no 

writ) (holding doctor’s statement that patient is “not able to take care of himself 

outside the hospital” was not specific enough and therefore factually insufficient 

to support court-ordered treatment). There was no evidence that S.S. was 

unable to care for his basic needs. There was no testimony describing the other 

“incidents” in which S.S. was involved so as to indicate to the factfinder that S.S. 

was deteriorating or likely to cause harm. See Johnstone v. State, 961 S.W.2d 

385, 389 (Tex. App.—Houston [1st Dist.] 1997, no writ) (holding that testimony of 

patient’s repeated refusal to take medication and his ability to function 

independently would continue to deteriorate are not specific enough to show an 

overt act or continuing pattern of behavior); Broussard v. State, 827 S.W.2d 619, 

622 (Tex. App.—Corpus Christi 1992, no writ) (holding that lack of “specific 

evidence” of the facts of a disturbance caused by the patient failed to meet 
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burden of establishing an overt act). As stated by our sister court, we are 

reluctant to deny court-ordered treatment to an obviously ill appellant, but “we 

cannot lower the requirements imposed under section 574.034(c) of the Texas 

Mental Health Code regarding proof by clear and convincing evidence.” 

Broussard, 827 S.W.2d at 622. We therefore sustain S.S.’s second issue. 

Because this issue is dispositive of the appeal, we do not need to reach S.S.’s 

third issue. See Tex. R. App. P. 47.1.

Conclusion

Having overruled S.S.’s first issue and sustained his second issue, we 

reverse the trial court’s order for temporary inpatient mental health services and 

render judgment denying the State’s application for court-ordered temporary 

mental health services. See J.M. v. State, 178 S.W.3d 185, 197–98 (Tex. App.—

Houston [1st Dist.] 2005, no pet.) (rendering judgment denying court-ordered 

temporary mental health services after holding evidence legally and factually 

insufficient to support trial court’s ruling). We further order S.S.’s immediate 

release from involuntary commitment. See Tex. Health & Safety Code Ann. 

§ 574.033 (West 2010); State ex rel. S.W., 356 S.W.3d 576, 584 (Tex. App.—

Texarkana 2011, no pet.).

/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

GARDNER, J. filed a concurring and dissenting opinion.

DELIVERED: July 28, 2015