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Click here for the full text of this decision FACTS:Millet Harrison, Jr. brings this appeal from an order extending inpatient mental health services for another twelve months. Harrison was found not guilty of murder by reason of insanity on Oct. 21, 1994. Initially, he was transferred to Vernon State Hospital for treatment. Subsequently, Harrison was transferred to Rusk State Hospital. This appeal is brought challenging the trial court’s most recent order of Dec. 10, 2003, for extended inpatient mental health services. HOLDING:Reversed and remanded. Taken as a whole, the evidence supports finding Harrison continues to the meet the criteria for involuntary commitment. He is mentally ill, his condition is expected to continue for more than ninety days, he has received court-ordered inpatient mental health services under Texas Code of Criminal Procedure Article 46.03 for at least 60 consecutive days during the last 12 months, and, without treatment, is likely to cause serious harm to others, or suffer severe and abnormal mental emotional or physical distress and experience deterioration of his ability to function independently and make a rational and informed decision as to whether or not to submit to treatment. Thus, under 4(d)(5) of Article 46.03, the next question is “whether an order should be issued requiring the person to participate in a prescribed regimen of medical, psychiatric, or psychological care or treatment on an out-patient basis as provided in Subdivision (4) of this subsection. If the court determines that the acquitted person continues to meet the criteria for involuntary commitment and that out-patient supervision is not appropriate, the court shall order that the person be returned to a mental hospital. . . .” The evidence constitutes a scenario for outpatient services consistent with the recommendations of both Dr. David Self and Dr. Edward Gripon. Both doctors recommend Harrison’s release from inpatient services and both approve the proposed scheme for outpatient services as will be provided by Dr. Gripon, Spindletop MHMR, and Harrison’s family. There was no expert testimony recommending Harrison remain an in-patient at Rusk. The court concludes the trial court’s finding that out-patient supervision is not appropriate is not supported by the record. OPINION:Burgess, J.; McKeithen, C.J., Burgess, and Gaultney, JJ. DISSENT:Gaultney, J. “No expert suggests Harrison should be released from court-ordered treatment. Nevertheless, the majority’s decision is grounded in part on a conclusion there is no evidence demonstrating Harrison would not voluntarily take his medication. The majority goes so far as to reject this Court’s reference in a prior opinion to Harrison’s”history of not taking his medication.’ See Harrison, 1999 WL 160825, at *3. But even the criteria for court-ordered outpatient treatment under the Health and Safety Code requires a finding, by clear and convincing evidence, that”the proposed patient has an inability to participate in outpatient treatment services effectively and voluntarily . . . .’ See Tex. Health & Safety Code Ann. 574.035(b)(2)(D) (Vernon Supp. 2004). I do not believe it is appropriate to rely on voluntary treatment in assessing the adequacy of available supervision to assure Harrison’s compliance. The majority does not suggest Harrison should be released from court-ordered treatment and allowed to make his own treatment decisions. Court-ordered treatment is required because voluntary compliance is unreliable. The facts establish Harrison has a mental illness that, when untreated, makes impossible a rational and informed decision by Harrison to submit to voluntary treatment. If he does not take the medication he is a danger to others. He meets the criteria for court-ordered inpatient treatment and he may be ordered to take psychoactive medication. The majority errs in reversing the committing court’s judgment that outpatient supervision is inappropriate. I believe the committing court charged with the statutory responsibility for the supervision is entitled to deference in making that discretionary judgment. The judge considered the difficulties of the suggested supervision and found the requested outpatient supervision inappropriate. I would affirm. Because the majority does not, I respectfully dissent.”

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