(dissenting).
There is a serious question, evidenced by the face of the record, as to whether Mrs. Greene was afforded due process in this case.
The application for determination that Mrs. Greene was mentally ill and for a ninety day order of commitment was filed on March 17, 1976. On that same date the court set hearing on the application for March 25, 1976, appointed two physicians, Irving Belz, M. D. and Jules Bohnn, M. D., to examine the patient and appointed an attorney ad litem to represent Mrs. Greene. Also on that same date it issued notice to Mrs. Greene which was served upon her the following day, advising her that the hearing would be had on March 25,1976. On March 23, 1976, the hearing was held on the application and the following day, March 24, 1976, the order of commitment was filed in the proceedings together with the instrument signed by Mrs. Greene dated March 22, 1976, indicating she did not desire to be present at the hearing.
Although it is entirely possible that the paper signed by Mrs. Greene waiving her right to be present at the hearing, was presented to the court at the time of the hearing, the clerk’s file mark raises an inference to the contrary. The order of commitment is silent as to whether the court considered the waiver by Mrs. Greene of her right to be present at the hearing.
In Lynch v. Baxley, cited in the majority opinion, it is stated:
“. . . Waiver by the person to be committed in his own behalf is valid only upon acceptance by the court following a judicial determination that he understands his rights and is competent to waive them. Waiver by counsel in his client’s behalf is valid only upon approval by the court after an adversary hearing at the conclusion of which the court judicially finds and determines that the person proposed to be committed is so mentally or physically ill as to be incapable of attending such proceedings.” (386 F.Supp. 378, 389)
The order of commitment made no express finding with respect to these matters. It did recite that the attorney ad litem had announced ready in the case and that the court proceeded to consider the evidence, including the physicians’ certificates filed in the cause. It awarded the attorney ad li-tem the sum of $25.00 as compensation for his representation of Mrs. Greene. Although the record does not reflect the extent of the court’s determination as to Mrs. Greene’s capability of attending the proceeding, it raises a serious question, in my opinion, as to whether there was a knowing and intelligent waiver by Mrs. Greene or her “representative counsel occupying a tra*104ditional adversarial role.” (386 F.Supp. 389)
The certificates of the two physicians contain conclusionary statements that Mrs. Greene “is mentally ill and ... requires observation and treatment in a mental hospital.” The handwritten descriptions of the physicians’ diagnoses of Mrs. Greene’s physical and mental condition on the date of examination are for the most part illegible. It appears doubtful that the conclusionary statements of the physicians suffice as probable cause for detention, even in the absence of opposition. See Art. 5547-37, Tex.Rev.Civ.Stat.Ann.; In re Barnard, 147 U.S.App.D.C. 302, 455 F.2d 1370, 1375 (1971).
We can only speculate as to the adverse effect a ninety day commitment in a mental hospital may have upon an 80 year old woman. Most of us cannot perceive the pain, humiliation and feeling of rejection which an aging person may occasion as a result of such an experience. The institutional detention of a person should be ordered only upon satisfactory proof and after consideration of available alternatives. Article 5547-38(b), 1975, Tex.Rev.Civ.Stat. Ann. Due to advanced age and increasing symptoms of senility a person may become a nuisance to the family members charged with the legal or moral responsibility of such person’s care. Before ordering institutional detention, our courts should exercise special care in determining that basic due process requirements are met.
I would reverse and remand the cause for another hearing.