(dissenting).
The Mental Health Code is rather strict in its provisions. Art. 5547-2 reads as follows :
“It is the purpose of this Code to provide humane care and treatment for the mentally ill and to facilitate their hospitalization, enabling them to obtain needed care, treatment and rehabilitation with the least possible trouble, expense and embarrassment to themselves and their families and to eliminate so far as possible the traumatic effect on the patient’s mental health of public trial and criminal-like procedures, and at the same time to protect the rights and liberty of everyone. In providing care and treatment for the mentally ill, the State acts to protect the community from harm and to serve the public interest by removing the social and economic burden of the mentally ill * * * person on the family, and by care and treatment in a mental hospital to restore him to a useful life and place in society. It is also the legislative purpose that Texas contribute its share to the nation-wide effort through care, treatment and research to reduce the prevalence of mental illness.” (Emphasis added).
There is a provision of the Code for “Voluntary Hospitalization”. There is also *84a provision for Involuntary Hospitalization”. John Robert Florence, a licensed attorney, is definitely committed, if he is, under the involuntary provision. He is a resident of Rusk County, Texas. He is incarcerated by Gregg County officers.
On August 14, 1961, his mother, Mrs. P. K. McIntosh, filed an application in the County Court of Gregg County to have her son, John . Robert Florence, temporarily hospitalized as a mentally ill person. A capias was immediately issued by the County Clerk and placed in the hands of the Sheriff. This being an involuntary procedure, the Sheriff made his return on the Capias that the hospital had released John Robert Florence to Gordon Wellborn, his attorney.
There were not two doctor’s certificates filed with the Application for Emergency Treatment, and the two doctors appointed by the County Judge to examine the boy did not make the report as required by law. Without these reports, they had no authority whatever to> hold him more than ninety-six hours, as provided by Art. 5547-28. Art. 5547-30 requires an additional certificate by a doctor within 48 hours after the commitment in a hospital.
John Robert Florence was held in the first instance until August 22, 1961, at which time he was released. So far as the Application by Mrs. McIntosh is concerned, that brought the case to a close. There is no provision in the Mental Health Code for the issuance of an Alias Capias. The Alias Capias issued by the Deputy County Clerk was void. The County Judge signed an Order on August 25, 1961, labeled “Order Setting Hearing for Temporary Hospitalization”. This Order is void because John Robert Florence had already been legally released as a result of the Affidavit and Application filed by Mrs. McIntosh on August 14, 1961.
On September 29 the County Judge entered á Protective Custody Order on John Robert! Florencé. This Order was void because he had already been released on the application that was filed by Mrs. McIntosh.
The Mental Health Code, as I see it, is a provision for the immediate protection of a person who is mentally ill. Mr. Florence was out of jail- from August 22 to September 28 and apparently did not hurt himself, nor anyone else. The officers went into Rusk County with the Alias Capias and took him into custody. I can not see where the provisions for the involuntary hospitalization of him is applicable. At the time the appeal was presented to this court I would have granted John Robert Florence a bond pending the outcome of this appeal. I would still do so. And if the law is as I see it, I would have reversed the judgment of the trial court and ordered his release.