Untitled Texas Attorney General Opinion ( 2009 )

GREG ABBOTT
December 28,2009
Ms. Ilse Bailey Opinion No. GA-0753
Acting Kerr County Attorney
~ o h n t yCourthouse, Suite BA- 103 Re: Whether a peace officer who has taken a person
700 Main Street into custody under chapter 573 of the Health and
Kerrville, Texas 78028 Safety Code may be required to transport that
individual to a medical facility for evaluation prior
to taking that person to a mental health facility
(RQ-0809-GA)
Dear Ms. Bailey:
The Texas Mental Health Code, codified as subtitle C of title 7, Health and Safety Code
(consisting of sections 571.001 through 578.008) pertains to the care and treatment of mentally ill
individuals. See EX. HEALTH& SAFETY CODEANN.chs. 57 1-578 (Vernon 2003 & Supp. 2009).
Chapter 573 provides for the emergency detention of a person who is believed to be mentally ill and
a risk to him or herself or to others. See id. ch. 573. You ask whether a peace officer who takes a
person into custody under chapter 573 may be required to transport that person to a medical facility
for a medical evaluation prior to taking that person to a mental health facility.' You explain that the
local "inpatient mental health facilities require that proposed patients be 'medically cleared' before
they will accept the person for mental health treatment." Request Letter at 1.
A peace officer may take custody of and transport a person under chapter 573 in two
circumstances. First, chapter 573, subchapter A, authorizes a peace officer to take a person into
custody, without a warrant, in narrow, specified circumstances. See TEX.HEALTH & SAFETY CODE
ANN. 5 573.001(a) (Vernon 2003). The peace officer taking a person into custody under section
573.OO 1 is required to "immediately transport the apprehended person to: (1) the nearest appropriate
'Request Letter at 1 (available at http://www.texasattomeygeneral.gov) (original request fiom Honorable M.
Rex Emerson, former Kerr County Attorney).
Ms. Ilse Bailey- Page 2 (GA-0753)
inpatient mental health fa~ility;~or (2) a mental health facility3 deemed suitable by the local mental
health authority, if an appropriate inpatient mental health facility is not available." Id. 9 573.OO1(d)
(footnotes added). The peace officer is then required to "immediately file an application for
detention after transporting a person to a facility.'' Id. 9 573.002(a).
Second, chapter 573, subchapter B, authorizes any adult to file a written application for the
emergency detention of another person. See id. $573.0 11(a). Upon certain findings by the judge
or magistrate regarding a person's mental illness and risk of ham, the "magistrate shall issue to an
on-duty peace officer a warrant for the person's immediate apprehension." Id. 9 573.0 12(d)(Vernon
Supp. 2009). The "person apprehended . . . shall be transported for a preliminary examination in
accordance with Section 573.021 to: (1) the nearest appropriate inpatient mental health facility; or
(2) a mental health facility deemed suitable by the local mental health authority, if an appropriate
inpatient mental health facility is not available." Id. tj 573.012(e).
As we consider your question, we examine chapter 573 mindful that in construing statutes
courts seek first to determine the Legislature's intent. See Leland v. Brandel, 257 S.W.3d 204,206
'"Inpatient mental health facility" means a mental health facility that can provide 24-hour residential and
psychiatric services and that is:
(A) a facility operated by the department [Texas Department of Mental Health and
Mental Retardation];
(B) a private mental hospital licensed by the Texas Department of Health;
(C) a community center, facility operated by or under contract with a community
center or other entity the department [Texas Department of Mental Health and
Mental Retardation] designates to provide mental health services;
(D) a local mental health authority or a facility operated by or under contract with
a local mental health authority;
(E) an identifiablepart of a general hospital in which diagnosis,treatment, and care
for persons with mental illness is provided and that is licensed by the Texas
Department of Health; or
(F) a hospital operated by a federal agency.
TEX.HEALTH& SAFETY
CODEANN.§ 57 1.003(9) (Vernon Supp. 2009).
3"Mental health facility" means:
(A) an inpatient or outpatient mental health facility operated by the department, a
federal agency, a political subdivision, or any person;
(B) a community center or a facility operated by a community center; or
(C) that identifiable part of a general hospital in which diagnosis, treatment, and
care for persons with mental illness is provided.
Id. 571.003(12).
Ms. Ilse Bailey- Page 3 (GA-0753)
(Tex. 2008). Courts look to the statute's plain language under the assumption that the Legislature
meant what it said and that its words are the surest guide to its intent. See Fitzgerald v. Advanced
Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999). Where language of a statute is
unambiguous and its meaning clear, courts give effect to the statute according to its terms. See id.
The plain language of subsections 573.001(d) and 573.012(e) directs a peace officer to
transport a person in custody under chapter 573 to only two types of facilities: (1) an "inpatient
mental health fa~ility;"~ or (2) a "mental health facility." TEx. HEALTH & SAFETY CODEANN.
8 573.001(d) (Vernon 2003), 573.012(e) (Vernon Supp. 2009). The two subsectionscontain no grant
of authority to an inpatient mental health facility or mental health facility. See id. 88 573.001(d)
(Vernon 2003), 573.0 12(e) (Vernon Supp. 2009). Specifically, neither subsection 573.OO1(d) nor
subsection 573.012(e) authorize such facilities to direct a peace officer in any manner, much less to
require a peace officer to transport a person in custody under chapter 573 to a facility other than one
authorized under chapter 573. See id. $8 573.001(d) (Vernon 2003), 573.012(e) (Vernon Supp.
2009); see also generally TEX.CODECW. PROC.ANNart. 2.13 (Vernon 2005) (setting out duties
and powers of peace officers but containingno provision authorizingmental health facilities to direct
a peace officer). Moreover, chapter 573 contains no grant of authority allowing an inpatient mental
health facility or mental health facility to reject a person transported by a peace officer under chapter
573 for lack of a medical evaluation and clearance. See TEx. HEALTH & SAFETY CODEANN.ch. 573
(Vernon 2003 & Supp. 2009). Because we must give effect to the statute's plain language and
because the statute contains no grant of authority to such facilities, we conclude that an inpatient
mental health facility or a mental health facility is not statutorilyauthorizedto 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 fa~ility.~
We received several briefs informing us of the potential economic, health, and policy
implications of our ~ p i n i o n .We
~ recognize that the transportation of involuntary patients by law
enforcement implicates a number of complex issues. While our opinion addresses the narrow legal
issue before us, the broader economic, health, and policy matters are appropriately addressed by the
Legislature.
4We recognize that the term "inpatient mental health facility" is modified by the words "nearest" and
"appropriate." Id. $5 573.001(d)(l) (Vernon 2003), 573.012(e)(l) (Vernon Supp. 2009). Similarly, the term "mental
health facility" is limited to'one that is "deemed suitable by the local mental health authority." Id. $5 573.001(d)(2)
(Vernon 2003), 573.0 12(e)(2) (Vernon Supp. 2009). Whether a particular "inpatient mental health facility" is nearest
or appropriate, and whether a "mental health facility" is deemed suitable by the local mental health authority are
questions that involve factual considerations and are thus outside the purview of an attorney general opinion. See, e.g.,
Tex. Att'y Gen. Op. No. GA-0726 (2009) at 3 ("We cannot find and resolve questions of fact in an attorney general
opinion."). These fact questions, however, do not serve to expand the scope of subsections 573.001(d) and 573.012(e)
such that the subsections include a facility that is neither an inpatient mental health facility or a mental health facility.
'Whether certain situations may trigger powers and duties of a peace officer outside of chapter 573 that would
authorize or require the officer to take a person in custody to a medical facility is beyond the purview of your inquiry.
'See Brief fiom Kathryn Lewis, Advocacy Incorporated (Aug. 3,2009); Brief fiom Sheree Hess, Hill Country
Crisis StabilizationUnit (Aug. 7,2009); Brief fiom Susan Stefan, Center for Public Representation(Aug. 3,2009); Brief
fiom Carvan E. Adkins, Texas Council of Community MHMR Centers, Inc. (Aug. 10,2009) (all on file with Opinion
Committee).
Ms. Ilse Bailey- Page 4 (GA-0753)
S U M M A R Y
An inpatient mental health facility or a .mentalhealth facility
is not statutorily authorized to require a peace officer to transport a
person in custody under chapter 573, Health and Safety Code, to a
medical facility for a medical evaluation prior to taking that person to
the mental facility.
~ t t o r n e ~ ~ofrTexas
a l
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee