dissenting.
The purpose of a civil commitment of a violent insanity acquittee is not only to *690treat the individual’s mental illness but also “to protect him and society from his potential dangerousness.” See Jones v. United States, 463 U.S. 354, 368, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983). The Texas Legislature has imposed a requirement that a violently insane acquittee “may only be discharged by order of the committing court in accordance with the procedures specified in this subsection.” See Tex. Code Crim. Proc. Ann. art. 46.03, § (4)(d)(5) (Vernon Supp.2004). “The concern motivating the judicial release requirement” is “protecting the public from a dangerous and mentally unstable individual.” State v. Roland, 973 S.W.2d 665, 667 (Tex.1998).
The judicial release provision, article 46.03, section (4)(d)(5), says that if the court finds the acquittee meets “the criteria for involuntary commitment” and “outpatient supervision is not appropriate,” the court “shall order that the person be returned to a mental hospital or other appropriate inpatient or residential facility.” See Tex.Code Crim. Proc. Ann. art. 46.03, § 4(d)(5) (Vernon Supp.2004). Therefore, in considering a judicial release under section 4(d)(5), the committing court must decide 1) whether the acquittee meets the criteria for involuntary commitment, and 2) whether outpatient supervision is appropriate. I agree Harrison meets the criteria for involuntary commitment. I disagree with the majority’s reversal of the trial court’s decision on the inappropriateness of the outpatient supervision requested by Harrison.
This is not the first time this Court has considered Harrison’s argument. See Harrison v. State, 1999 WL 160825 (Tex.App.-Beaumont Mar.24, 1999, no pet.) (not designated for publication). The Court wrote then as follows:
Harrison has a twenty year history of schizophrenia. In 1993, Harrison strangled his mother, then mutilated her body by cutting off her head, cutting out her heart, and cutting out her eyes.
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Harrison continues to suffer from chronic paranoid schizophrenia. Harrison had a history of not taking his medication. Although he has responded to treatment with psychotropic medications in an in-patient setting, none of the doctors suggested Harrison is capable of maintaining medication on his own, and no alternative treatment facility was available. Although he recommended outpatient commitment rather than continued in-patient treatment, the facts stated in Dr. Korman’s report support the required findings under Health and Safety Code Section 574.035(a)(l)(2)(C) and (3). None of the doctors suggested releasing Harrison from court-ordered mental health services. Although in the opinion of all three doctors Harrison is not a threat to others so long as he receives treatment, it is clear from the reports and Harrison’s patient history that dire consequences would result from a discontinuation of that treatment. The evidence tends to confirm the likelihood that absent treatment Harrison would suffer distress and deterioration of his ability to function or that he would seriously harm others.
Id. at *2, 3.
Harrison meets all the criteria for court-ordered treatment on an inpatient basis. He is mentally ill. See Tex. Health & Safety Code Ann. § 574.035(a)(1) (Vernon 2003 & Supp.2004). Absent treatment, he is likely to cause serious harm to others. Id. at § 574.035(a)(2)(B). His mental illness is incurable. The condition is “expected to continue for more than 90 days.” Id. at § 574.035(a)(3). He has received court-ordered inpatient health services “for a least 60 consecutive days during the *691preceding 12 months.” Id. at § 574.035(a)(4). Under article 46.03, if an acquittee meets the criteria for involuntary commitment, the committing court may nevertheless consider the appropriateness of outpatient supervision. See Tex.Code Crim. Proc. Ann. art. 46.03, § 4(d)(5) (Vernon Supp.2004). But the appropriateness of outpatient supervision is not merely a treatment issue. Rather, the decision includes consideration of the difficulty in monitoring compliance and assuring public safety. See Tex.Code Crim. Proc. Ann. art, 44.03, § 4(d)(6) (Vernon Supp.2004).
In determining the appropriateness of outpatient supervision, the committing court’s focus is the same as that of the statute: the outpatient supervision must be able to assure compliance with the treatment regimen, monitor the acquittee, and timely detect deterioration of his condition. See id. The majority notes Dr. Self felt that intensive outpatient monitoring of Harrison by the ACT team through Spindletop MHMR would satisfy Harrison’s need for regular and frequent contact with trained mental health care professionals. In December 2003, Dr. Self testified ACT services are “services offered by the community health centers, Spindletop in this case.” In February 2003, the trial court heard Dr. Self testify Spindletop did not provide the specific ACT service, though one of its other services meets Dr. Selfs requirements. And in February 2003, a representative from Spindletop testified MHMR sometimes loses track of patients:
Q. [State’s counsel] Ms. Fleming, if I understood you right, you prefer that if Millet Harrison is not reporting to M.H.M.R., that some family member call the Court and notify the Court that he’s not in compliance.
A. [Spindletop Representative] Well, we can’t.
Q. You can’t call the Court and say— A. Do that.
Q. —“Millet didn’t come for his injection today.” Is that correct?
A. We don’t normally do that.
Q. Do you experience sometimes at M.H.M.R. that if a person stops reporting to M.H.M.R. for treatment or care that sometimes their files may be just set aside or closed out, just no further contact with M.H.M.R. with this patient? Is that true?
A. Yeah. They usually surface at a state hospital or other psychiatric facilities.
Q. After they’ve gotten away from the medication, problems come up and they appear somewhere in the system.
A. Uh-huh.
Q. Is that a “yes”?
A. Usually — well, the one thing that can be done, if he’s not in compliance and begins to not show up, is that they would inform me; and then I could pursue attempting to get a hold of him by family and whatever means.
Q. But if you can’t get a hold of him or family, you-all can’t call the Court and say, ‘We didn’t see Millet today.”
A. I’m not saying we absolutely could not.
Q. But you generally don’t.
A. We’re just so — we have so many clients and we’re so busy, it would be easy at times to overlook that. But we do have secretaries that, if an appointment is missed, they call to find out if it needs to be rescheduled or when they want to reschedule.
Q. But like you said, many times a person does not appear and you don’t see them again until they surface somewhere in a mental hospital somewhere down the road; is that correct?
A. Yes.
*692Q. Thank you, ma’am.
The trial court concluded the Spindletop MHMR facility would not provide adequate supervision for Harrison. Dr. Gri-pon testified there has to be some type of monitoring in which noncompliance would be immediately reported. Harrison’s niece, with whom he would be living, works full-time, and the court concluded she could not provide sufficient supervision. Texas law does not require that the committing court allow inadequate outpatient supervision of a violently insane acquittee.
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.1 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.
. The Heath and Safety Code provides in part, "A judge may advise, but may not compel, the proposed patient to: (1) receive treatment with psychoactive medication as specified by the outpatient mental health services treatment plan ...” See Tex. Health & Safety Code Ann. § 574.035(j)(l) (Vernon Supp. 2004) (emphasis added). But article 46.03, section 4(d) says the committing court may order a prescribed regimen of medical, psychiatric, or psychological care or treatment. Harrison meets the criteria for court-ordered inpatient treatment. He may be ordered to take the medication. See article 46.03, section 4(d). References