Delfin v. State , 1975 Tex. App. LEXIS 3357 ( 1975 )

ON MOTION FOR REHEARING

The Appellant urges that because of the provisions in Article 5547-37, Tex.Rev. Civ.Stat.Ann., which permit the court to make findings upon the basis of the Certificates of Medical Examination for Mental Illness, the requirement of a jury trial in Article 5547-36(e), Tex.Rev.Civ.Stat.Ann., is not mandatory unless requested, and is a right that can be waived. We cannot agree. Article 5547-37 now has application only where the proposed patient is not charged with a criminal offense.

Appellant also again urges that since this was a trial on the merits and not a summary judgment proceeding, the case of Bond v. Snow, 422 S.W.2d 842 (Tex.Civ. App.—Eastland 1967), aff’d 438 S.W.2d 549 (Tex.1969), is not applicable and that the harmless error rule should apply. We cannot agree. Opinion evidence is only evidential and is not binding upon the trier of facts. Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345 (1948); Board of Firemen’s Relief & Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181 (1951); Luttes v. State, 159 Tex. 500, 324 S.W.2d 167 (1958).

The Appellant’s motion for rehearing is overruled.