Untitled Texas Attorney General Opinion ( 2011 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 12, 2011
The Honorable Jerry D. Rochelle Opinion No. GA-0877
Bowie County Criminal District Attorney
Bowie County Plaza Re: Responsibility for an individual who is the
Post Office Box 3030 subject of an emergency detention order
601 Main Street (RQ-0952-GA)
Texarkana, Texas 75504
Dear Mr. Rochelle:
You inquire about law enforcement responsibility for an individual who is the subject of an
emergency detention order. I Referring to an emergency detention order issued in response to a peace
officer's application for emergency detention under section 573.002, Health and Safety Code, you
first ask which law enforcement agency is responsible for overseeing the individual subject to the
order. See Request Letter at 1.
Your brief indicates that members of the city police department and the county sheriff's
department encounter persons who appear to be mentally ill and a danger to themselves or others.
See Brief at 1. You also explain that these law enforcement officers regularly take such persons into
custody and transport them to one of the two local hospitals.' See id. Your brief further states that
the hospitals do not designate an employee who is responsible for preventing the person from leaving
the hospital. See id. at 2. Finally, your brief explains that the Sheriff believes his department is not
responsible for the person once the person has been delivered to the local hospital. See id. Rather,
according to your brief, the Sheriff argues that his department is relieved of responsibility for the
person and that responsibility is transferred to the city police department-because the hospitals lie
within the city's jurisdiction. See id.
ISee Letter and attached Brief from Honorable Jerry D. Rochelle, Bowie County Criminal District Attorney,
to Honorable Greg Abbott, Attorney General of Texas at 1 (Mar. 8, 2011), https://www.oag.state.tx.us/opinl
index_rq.shtml ("Request Letter" and "Brief," respectively).
2The brief indicates that these hospitals have been deemed suitable by the local mental health authority as
required by section 573.00l(d). See Brief at 3. See also TEx. HEALTH & SAFETY CODE ANN. § 573.001(d) (West 2010)
(identifying facilities to which a person believed to be mentally ill may be taken); id. § 571.003(12) (defining mental
health facility to include certain parts of a general hospital).
The Honorable Jerry D. Rochelle - Page 2 (GA-0877)
The Texas Mental Health Code, codified as subtitle C of title 7, Health and Safety Code,
governs access to mental health care and treatment for mentally ill persons. See TEX. HEALTH &
SAFETY CODE ANN. §§ 571.001-578.008 (West 2010). Specifically, chapter 573 authorizes a peace
officer, 3 without a warrant, to take a person into custody for the emergency detention if they appear
to be mentally ill and pose a risk to themselves or others. See id. § 573.001. A peace officer who
makes an emergency detention "shall immediately transport the apprehended person to: (1) the
nearest appropriate inpatient mental health facility; or [if unavailable,] (2) a mental health facility
deemed suitable by the local mental health authority." Id. § 573.001(d); see also Tex. Att'y Gen.
Op. No. GA-0753 (2009) at 3 (concluding that an "inpatient mental health facility or a mental health
facility is not statutorily authorized to require a peace officer to transport a person in custody under
chapter 573 to a medical facility for a medical evaluation prior to taking that person to the mental
facility"). Upon transporting the apprehended person to the mental health facility, the peace officer
must immediately file an application for emergency detention and personally present it to a judge
or magistrate. TEX. HEALTH & SAFETY CODE ANN. §§ 573.002, .012 (West 2010). Theemergency
detention warrant serves as an application for detention in a mental health facility. Id. § 573.012(f).
The facility must "temporarily accept a person for whom an application for detention is filed"
and perform certain examinations. Id. § 573.021(a); see id. §§ 573.021(b) (requiring preliminary
examination within 48 hours), 573.021(c) (requiring physician to examine person within 12 hours);
see also id. § 573.021(b) (providing that a person accepted for a preliminary examinatjon may be
"detained in custody" for specified time period).
Chapter 573 does not address your question. While chapter 573 imposes certain
responsibilities on the mental health facilities that receive persons with mental illness, the Mental
Health Code does not address a situation wherein the mental health facility is unwilling or unable
to ensure persons remain safely in the facility while awaiting their preliminary examination. See
generally id. ch. 573. Neither your briefing to this office nor our research has uncovered any
provision in chapter 573 that imposes a duty on a particular law enforcement agency to oversee the
person while the person remains in the hospital's care.
Because only the Texas Legislature is constitutionally empowered to make Texas law, this
office is unable to construe a statutory requirement or duty when the Legislature has left the statute
silent on the matter. See OldAm. Cnty. Mutual Fire Ins. Co. v. Sanchez, 149 S.W.3d 111, 115 (Tex.
2004) (stating "because we presume that every word of a statute has been included or excluded for
a reason, we will not insert requirements that are not provided by law"); see also Goldman v. Torres,
341 S.W.2d 154, 158 (Tex. 1960) (stating that reading language into a statute usurps the
Legislature's power); Tex. Att'y Gen. Op. No. GA-0279 (2004) at 4-5 (recognizing the Attorney
General's authority to render legal advice does not include authority to legislate). In this case, it is
particularly difficult to imply a statutory requirement because the statute reflects a comprehensive
3y ou ask about only two law enforcement agencies, but under the Code of Criminal Procedure, a "peace officer"
includes commissioned personnel from state, county, municipal, and other law enforcement agencies. See TEx. CODE
CRIM. PROC. ANN. art. 2.12(1)-(36) (WestSupp. 2010), amended by Act of May 5, 2011, 82dLeg., R.S., ch. 85, § 3.001,
2011 Tex. Sess. Law Servo 366, 436-37 (to be codified at TEx. CODE CRIM. PROC. ANN. art. 2.12(1)-(36».
The Honorable Jerry D. Rochelle - Page 3 (GA-0877)
scheme that the Legislature implemented to balance competing, compelling interests. See Campbell
v. State, 68 S.w.3d 747,760 (Tex. App.-Houston [14th Dist.] 2001), aff'd, 85 S.W.3d 176 (Tex.
2002) ("Commitment to a mental hospital is a weighty curtailment of one's liberty. Such a
restriction on liberty requires the protections afforded by due process.") (citation omitted); see also
Tex. Att'y Gen. Op. No. JM-360 (1985) at 4 (describing statutory predecessor to Mental Health Code
as "a comprehensive code designed to provide access to humane care and treatment for persons
suffering from severe mental illness" that also "sets out to safeguard [the person's ] legal rights").
Thus, we cannot advise you that chapter 573 places a duty to oversee an individual transported under
section 573.002 on any particular law enforcement agency to the exclusion of another.
Notwithstanding the absence of a specific duty under the Health and Safety Code, generally
speaking, all Texas peace officers have a duty to preserve the peace. See TEX. CODE CRIM. PROC.
ANN. art 2. 13(a) (West 2005) ("It is the duty of every peace officer to preserve the peace within the
officer's jurisdiction."). Similarly, hospitals have some level of responsibility for their patients. Cf
Boren v. Texoma Med. Ctr., Inc., 258 S.W.3d 224, 229 (Tex. App.-Dallas 2008, no pet.)
(recognizing, in a tort context, that "[w]ithout the signed and executed detention order and warrant,
Texoma had no lawful right to restrain, detain, or control" mentally ill patient). As a practical
matter, we believe the Legislature intended for the Mental Health Code to facilitate teatment for
mentally ill patients in an appropriate setting. See TEX. HEALTH & SAFETY CODE ANN. § 571.002
(West 2010) (detailing purposes of the Mental Health Code including to "facilitate treatment in an
appropriate setting"). The Legislature's intent is best served if area hospitals and relevant law
enforcement agencies share responsibility for ensuring that persons in need of mental health services
remain safely in the facility for the necessary treatment.
Your second question is: "[o]nce court-ordered mental health services are ordered and the
sheriff's office is ordered to transport the individual, does the sheriff immediately assume oversight
of the individual?" Request Letter at 1.. You tell us that there often is a delay between "the time the
order is entered [and] the time the person is transported to the receiving facility due to lack of beds
at the receiving facility." Brief at 3. Court-ordered mental health services implicate chapter 574 of
the Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. §§ 574.001-.203 (West 2010)
(chapter entitled "court-ordered mental health services"); see also Shike v. State, 961 S.W.2d 344,
346 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd) (recognizing that the Health and Safety Code
distinguishes between "emergency detentions" and "court-ordered mental health services"). That
chapter sets out the requirements for the provision of court-ordered, or involuntary, mental health
services. See TEX. HEALTH & SAFETY CODE ANN. §§ 574.001 (West 2010) (pertaining to the
application for court-ordered mental health services), 574.031 (setting out general provisions relating
to hearing on application), 574.034 (providing for order for temporary mental health services),
574.035 (providing for order for extended mental health services). The chapter also provides for the
protective custody of a person who is the subject of an application for court-ordered mental health
. services. See id. §§ 574.021 ("Motion for Order of Protective Custody"), 574.022 (providing for
issuance of protective custody order). Chapter 574 also provides for the apprehension and
transportation of a person subject to a protective custody order. See id. §§ 574.023 (providing for
apprehension), 574.045 (providing for transportation). Specifically, section 574.045(h) requires that
The Honorable Jerry D. Rochelle - Page 4 (GA-OS77)
a "patient must be transported directly to the facility within a reasonable amount of time and without
delay." [d. § 574.045(h); see also id. § 574.045(a) (listing persons appropriate to transport a
committed patient or person detained under section 573.022 or 574.023, and including the sheriff
or constable, if no other person listed is available). Apart from this provision, nothing in chapter 574
expressly states when the sheriff assumes oversight of the individual subject to court-ordered mental
health services. Because the Legislature has not enacted a provision that specifically governs the
situation explained in your brief, we can advise you only that chapter 574 requires the sheriff's office
to transport a mentally ill person to a hospital within 'a "reasonable amount of time and without
delay."
The Honorable Jerry D. Rochelle - Page 5 (GA-OS77)
SUMMARY
There is no provision in chapter 573, Texas Health and Safety
Code, that expressly requires a particular law enforcement agency to
oversee a mentally ill person once the person has been transported to
a facility pursuant to a section 573.002 emergency detention order.
Because the Legislature has not enacted a statute that requires a
specific law enforcement agency to oversee mentally ill persons, we
cannot advise you that chapter 573 places a duty on any particular law
enforcement agency over another.
A sheriff's office must transport a person subject to court-
ordered mental health services under chapter 574 within a reasonable
amount of time and without delay.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee