Untitled Texas Attorney General Opinion ( 2018 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
May 16, 2018
The Honorable Renee Ann Mueller Opinion No. KP-0206
Washington County Attorney
100 East Main, Suite 200 Re: Authority of a magistrate to designate a
Brenham, Texas 77833 specific peace officer or law enforceinent
agency to execute an emergency detention
warrant under subsection 573.012(d) of the
Health and Safety Code (RQ-0204-KP)
Dear Ms. Mueller:
You ask a series of questions regarding which peace officers have the responsibility to
transport a person subject to an emergency detention warrant issued pursuant to subsection
573.012(d) of the Health and Safety Code. 1 Chapter 573 governs the emergency detention of a
person evidencing mental illness who may pose a substantial risk of imminent serious harm to
himself or others if not immediately restrained. See TEX. HEALTH & SAFETY CODE§§ 573.0001-
.026. Subchapter B of chapter 573 authorizes any adult to file a written application for the
emergency detention of such a person and requires a judge or magistrate to review the application.
See id. §§ 573.011 (providing for application), .012(a)-(b) (providing for issuance of warrant).
Upon review, if certain requirements are met, "[t]he magistrate shall issue to an on-duty peace
officer a warrant for the person's immediate apprehension." 2 Id. § 573.012(d). The statut~
provides:
(e) A pyrson apprehended under this section shall be transported for
a preliminary examination in accordance with Section 573.021 to:
(1) the nearest appropriate inpatient mental health facility; or
1
See Letter and Brief from Honorable Renee Ann Mueller, Washington Cty. Att'y, to Honorable Ken
Paxton, Tex. Att'y Gen. at 1-2 (Dec. 27,2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-
rqs ("Request Letter" and "Brief," respectively).
2
The magistrate must find "reasonable cause to believe that: (I) the person evidences mental illness; (2) the
person evidences a substantial risk of serious harm to himself or others; (3) the risk of harm is imminent unless the
person is immediately restrained; and (4) the necessary restraint cannot be accomplished without emergency
detention." TEX. HEALTH & SAFETY CODE§ 573.012(b).
The Honorable Renee Ann Mueller - Page 2 (KP-0206)
(2) a mental health facility deemed suitable by the local mental
health authority, if an appropriate inpatient mental health facility
is not available.
Id. § 573.012(e). You tell us that the City of Brenham police department and the Washington
County sheriffs department disagree about which of the two is responsible for transporting the
person apprehended if the location of the apprehension is within Brenham city limits. 3 Brief at 1.
"The dispute revolves around geographical principles and jurisdiction," you state, noting that the
"primary point of contention ... is whether a magistrate has authority to require a specific law
enforcement agency to execute a warrant pursuant to'[subsection 573 .012(d)], regardless of where
the subject to be transported is encountered or located." Id. at 3; see also Request Letter at I.
Subsection 573.012(d) directs a magistrate to issue the warrant for apprehension "to an on-
duty peace officer." TEX. HEALTH & SAFETY CODE§ 573.012(d). Article 2.12 of the Code of
Criminal Procedure defines "peace officer" to include, among others, "sheriffs" and "their
deputies," and "marshals or police officers of an incorporated city, town, or village." TEX. CODE
CRIM. PROC. art. 2.12(1), (3). As this office previously concluded, subsection 573.012(d) "uses
the phrase 'peace officer' consistently with the Code of Criminal Procedure definition" and "does
not on its face distinguish between county and municipal peace officers for purposes of executing
emergency detention warrants." Tex. Att'y Gen. Op. No. JC-0387 (2001) at 2. Thus, amagistrate 4
may direct the emergency detention warrant to any on-duty peace officer listed in article 2.12 of
the Code of Criminal Procedure, regardless of the apprehended person's location within the
county.
Next, you ask whether the responding peace officer or law enforcement agency must
"respond and transport the person" pursuant to section 573.012(e). Request Letter at I. Although
subsection 573.012(e) provides that "[a] person apprehended under this section shall be
transported for a preliminary examination" without directly identifying the person or entity
providing the transportation, the statute contemplates that the peace officer apprehending the
person also takes responsibility for transporting the person. TEX. HEALTH & SAFETY CODE
§ 573.012(e) (emphasis added); see also Boren v. Texoma Med. Ctr., Inc., 258 S.W.3d 224, 226
n.1 (Tex. App.-Dallas 2008, no pet.) (stating that a warrant issued pursuant to subsection
573.012(d) is "for the person's immediate apprehension and transportation to a mental health
facility for a preliminary examination" (emphasis added)), 25 TEX. ADMIN. CODE§ 412.176(a)(l)
(2018) (Dept. of State Health Services, Emergency Detention) (directing state mental health
facilities to accept for preliminary examination "a person who has been apprehended and
transported . .. by a peace officer in accordance with" section 573.012 (emphasis added)); Tex.
Att'y Gen. Op. No. JC-0364 (2001) at 2 (noting that pursuant to section 573.012, "a peace officer
3
You do not ask about a peace officer's responsibility to transport such a person without a warrant pursuant
to subchapter A of chapter 573, acknowledging that under that subchapter "the encountering officer or deputy is
responsible" for transporting the person to a facility for evaluation, whoever that may be. Brief at I. Thus, we
address only the transportation of a person pursuant to subchapter B.
4
Your first two questions ask about the authority of "a magistrate, specifically a Justice of the Peace."
Request Letter at I. The authority bestowed by subsection 573.012(d) does not distinguish among the various officers
who may serve as a magistrate. See TEX. CODE CRIM. PROC. art. 2.09 (defining "magistrates" to include, among
others, ''justices of the peace").
The Honorable Renee Ann Mueller - Page 3 (KP-0206)
transports an apprehended person who is believed to be mentally ill" to the appropriate facility).
Thus, a court would likely determine that a peace officer executing an emergency detention
warrant also has a duty to ensure the person is transported to the appropriate facility.
Next, you ask whether "there are any jurisdictional elements associated with a warrant
issued pursuant to" section 573.012(d), such that the location of the person encountered would
determine whether transportation is a municipal or county law enforcement responsibility.
Request Letter at 1. Subsection (d) of section 573.012 contains no jurisdictional element on the
warrant issued to an on-duty peace officer. The only location-based element of section 573.012,
in subpart (e) of that section, determines the destination of the transport ("the nearest" mental
health facility), not who provides the transport. See TEX. HEALTH & SAFETY CODE§ 573.012(e).
You also ask whether the Brenham police department or the Washington County sheriffs
department may "refuse to transport persons subject to warrants" under section 573.012. Request
Letter at 1-2. Among other duties, a peace officer "shall ... execute all lawful process issued to
the officer by any magistrate or court." TEX. CODE CRIM. PROC. art. 2.13(b)(2). In addition, a
person apprehended under an emergency detention warrant "shall" be transported to an appropriate
facility. TEX. HEALTH & SAFETY CODE§ 573.012(e). The word "shall" imposes a duty. TEX.
Gov'T CODE § 311.016(2). Under these provisions, a peace officer may not refuse to transport a
person he or she apprehends pursuant to an emergency detention warrant.
Finally, you ask whether "a designated law enforcement officer, or the head of a particular
law enforcement agency [who] refuses to execute a warrant pursuant to section 573.012(d)" may
be held in contempt. 5 Request Letter at 2. "If any sheriff or other officer shall willfully refuse ...
to execute any ... legal process which it is made his duty by law to execute, he shall be liable to a
fine for contempt ... at the discretion of the court." TEX. CODE CRIM. PROC. art. 2.16. The local
probate court or court having probate jurisdiction handles proceedings under the Texas Mental
Health Code, which includes chapter 573. See generally TEX. HEALTH & SAFETY CODE
§§ 571.001-578.008 (Texas Mental Health Code), id. § 571.012 (specifying the hours of
availability of the probate judge, a magistrate, or the court with probate jurisdiction for mental
health proceedings). In Washington County, the county court and the county court-at-law both
exercise this jurisdiction, and such courts may punish for contempt. 6 See TEX. Gov'T CODE
§§ 21.002 (generally giving courts contempt power), 25.0004(b) (specifying that "[a] statutory
county court or its judge may punish for contempt as prescribed by general law':). Thus, a
subsequent action for contempt could likely be brought in those courts to enforce a magistrate's
emergency detention warrant issued pursuant to section 573.012(d).
5
Your question contemplates "the issuing magistrate" holding the person in contempt. Request Letter at 2.
However, because "contempt is a broad and inherent power of a court," we focus our inquiry on a court's power to
enforce an emergency detention warrant issued pursuant to subsection 573.012(d). In re Reece, 341 S.W.3d 360,
364 (Tex. 2011) ( emphasis added); see also TEX. Gov'T CODE § 21.002 ("a court may punish for contempt").
6
The constitutional county court of Washington County "has the general jurisdiction of a probate court."
TEX. Gov'T CODE § 26.339. The county's singular statutory county court also exercises probate jurisdiction
concurrently with the constitutional county court. Se~ id. §§ 25.2411 ("Washington County has one statutory county
court, the County Court at Law of Washington County."), .0003(d) (providing generally that "a statutory county
court has, concurrent with the county court, the probate jurisdiction provided by general law for county courts").
The Honorable Renee Ann Mueller - Page 4 (KP-0206)
SUMMARY
A magistrate may direct an emergency detention warrant
issued pursuant to subsection 573.012(d) of the Health and Safety
Code to any on-duty peace officer listed in article 2.12 of the Code
of Criminal Procedure, regardless of the location within the county
of the person who is the subject of the warrant. A peace officer
executing an emergency detention warrant has a duty to ensure the
transport of a person subject to the warrant to an appropriate facility
pursuant to subsection 573.012(e). Subsection 573.012(d) contains
no jurisdictional element that would determine whether municipal
or county law enforcement bears the responsibility for transporting
a person to an appropriate facility pursuant to subsection 573.012(e).
A peace officer refusing to transport a person to an appropriate
facility pursuant to subsection 573.012(e) is liable for contempt.
Such an action for contempt could likely be brought by a court
having specific jurisdiction over mental health proceedings.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
BECKY P. CASARES
Assistant Attorney General, Opinion Committee