Who is responsible for someone held under a Texas emergency mental health detention order?

Plain-English summary

Jerry D. Rochelle, the Bowie County Criminal District Attorney, asked the Attorney General about law enforcement responsibility for a person who is the subject of an emergency detention order. The practical problem he described: city police and county sheriff's deputies regularly take people who appear mentally ill and dangerous into custody and transport them to one of two local hospitals, but the hospitals do not designate anyone to keep the person from leaving, and the sheriff believed his department was relieved of responsibility once the person reached the hospital (which sat within the city's jurisdiction). He asked two questions.

First, which law enforcement agency is responsible for overseeing an individual subject to a section 573.002 emergency detention order? The opinion walked through chapter 573 of the Mental Health Code, which lets a peace officer take a mentally ill, dangerous person into custody without a warrant, transport the person to an appropriate mental health facility, and file an application for emergency detention. The facility must temporarily accept the person and perform examinations within set time limits. But the opinion found that chapter 573 does not address who oversees the person while awaiting examination if the facility is unwilling or unable to keep the person safely in place. No provision imposed that duty on any particular law enforcement agency. Because only the Legislature can make Texas law, the opinion declined to read a duty into a statute the Legislature left silent, especially given the comprehensive scheme balancing liberty and treatment interests. It noted that, generally, all peace officers have a duty to preserve the peace and hospitals bear some responsibility for their patients, and that the Legislature's intent is best served if hospitals and law enforcement share responsibility for keeping such persons safely in the facility. So the opinion concluded it could not say chapter 573 places the oversight duty on any one agency to the exclusion of another.

Second, once court-ordered mental health services are ordered and the sheriff's office is directed to transport the person, does the sheriff immediately assume oversight, given the delays caused by a lack of beds? The opinion turned to chapter 574, which governs court-ordered (involuntary) mental health services, protective custody, and transportation. Section 574.045(h) requires that a patient be transported directly to the facility within a reasonable amount of time and without delay. Apart from that, the opinion found, nothing in chapter 574 expressly states when the sheriff assumes oversight. So it could advise only that chapter 574 requires the sheriff's office to transport the person within a reasonable amount of time and without delay.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Sheriffs, city police, and the DA who asked (as the opinion held for them): The opinion told them that chapter 573 does not assign oversight of an emergency-detention subject to any one agency over another, so it could not resolve the city-versus-county dispute by pointing to a statutory duty. It described the statute as contemplating shared responsibility between hospitals and law enforcement.

On reading a duty into the statute (where the opinion stopped): The opinion declined to imply a specific oversight duty because the Legislature left chapter 573 silent, and the AG's office cannot insert requirements the law does not provide.

Hospitals (as the opinion described it): The opinion noted that hospitals must temporarily accept a person for whom an emergency detention application is filed and perform timely examinations, and that hospitals bear some responsibility for their patients, while pointing out the code does not address a facility unwilling or unable to keep the person safely inside.

On court-ordered transport under chapter 574 (as the opinion described it): The opinion advised that the sheriff's office must transport a person subject to court-ordered mental health services within a reasonable amount of time and without delay, but said the chapter does not otherwise state when the sheriff assumes oversight.

Common questions

Does Texas law say which police agency must guard a person under an emergency mental health hold?
No. The opinion concluded that chapter 573 of the Health and Safety Code does not place that duty on any particular law enforcement agency over another.

Why wouldn't the Attorney General just assign the responsibility?
Because, the opinion explained, only the Legislature can make Texas law, and the AG's office will not read a requirement into a statute the Legislature left silent.

Who is responsible, then, in practice?
The opinion said the Legislature's intent is best served if area hospitals and the relevant law enforcement agencies share responsibility for keeping the person safely in the facility for the necessary treatment.

When the sheriff is ordered to transport someone for court-ordered services, how fast must that happen?
Under section 574.045(h), the opinion advised, the sheriff's office must transport the patient directly to the facility within a reasonable amount of time and without delay.

Background and statutory framework

The Texas Mental Health Code, subtitle C of title 7 of the Health and Safety Code, governs mental health care for mentally ill persons. Tex. Health & Safety Code Ann. §§ 571.001-578.008 (West 2010); id. § 571.002 (West 2010) (purposes, including to facilitate treatment in an appropriate setting); id. § 571.003(12) (defining mental health facility). Chapter 573 lets a peace officer take a mentally ill, dangerous person into custody without a warrant and transport the person to an appropriate facility, then file an application for emergency detention with a magistrate. Id. § 573.001; id. § 573.001(d) (West 2010); id. §§ 573.002, .012 (West 2010); id. § 573.012(f). The facility must temporarily accept the person and perform a preliminary examination within 48 hours and a physician examination within 12 hours. Id. § 573.021(a)-(c).

The opinion declined to imply an oversight duty the Legislature did not write. Old Am. Cnty. Mutual Fire Ins. Co. v. Sanchez, 149 S.W.3d 111, 115 (Tex. 2004); Goldman v. Torres, 341 S.W.2d 154, 158 (Tex. 1960). It described the Mental Health Code as a comprehensive scheme balancing liberty against treatment. Campbell v. State, 68 S.W.3d 747, 760 (Tex. App.-Houston [14th Dist.] 2001), aff'd, 85 S.W.3d 176 (Tex. 2002). All peace officers have a duty to preserve the peace, and hospitals bear some responsibility for patients. Tex. Code Crim. Proc. Ann. art. 2.13(a) (West 2005); Boren v. Texoma Med. Ctr., Inc., 258 S.W.3d 224, 229 (Tex. App.-Dallas 2008, no pet.). Under the Code of Criminal Procedure, "peace officer" reaches commissioned personnel of many agencies. Tex. Code Crim. Proc. Ann. art. 2.12(1)-(36) (West Supp. 2010).

Court-ordered mental health services fall under chapter 574, which is distinct from emergency detentions. Tex. Health & Safety Code Ann. §§ 574.001-.203 (West 2010); Shike v. State, 961 S.W.2d 344, 346 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd). Section 574.045(h) requires that a patient be transported directly to the facility within a reasonable amount of time and without delay, and section 574.045(a) lists who may transport, including the sheriff or constable if no other listed person is available. Id. § 574.045(h); id. § 574.045(a).

Citations

Cases:

• Old Am. Cnty. Mutual Fire Ins. Co. v. Sanchez, 149 S.W.3d 111, 115 (Tex. 2004)
• Goldman v. Torres, 341 S.W.2d 154, 158 (Tex. 1960)
• Campbell v. State, 68 S.W.3d 747, 760 (Tex. App.-Houston [14th Dist.] 2001), aff'd, 85 S.W.3d 176 (Tex. 2002)
• Boren v. Texoma Med. Ctr., Inc., 258 S.W.3d 224, 229 (Tex. App.-Dallas 2008, no pet.)
• Shike v. State, 961 S.W.2d 344, 346 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd)

Statutes:

• Tex. Health & Safety Code Ann. §§ 571.001-578.008 (West 2010)
• Tex. Health & Safety Code Ann. § 571.002 (West 2010)
• Tex. Health & Safety Code Ann. § 571.003(12)
• Tex. Health & Safety Code Ann. § 573.001
• Tex. Health & Safety Code Ann. § 573.001(d) (West 2010)
• Tex. Health & Safety Code Ann. §§ 573.002, .012 (West 2010)
• Tex. Health & Safety Code Ann. § 573.012(f)
• Tex. Health & Safety Code Ann. § 573.021(a)-(c)
• Tex. Health & Safety Code Ann. §§ 574.001-.203 (West 2010)
• Tex. Health & Safety Code Ann. § 574.045(h)
• Tex. Health & Safety Code Ann. § 574.045(a)
• Tex. Code Crim. Proc. Ann. art. 2.12(1)-(36) (West Supp. 2010)
• Tex. Code Crim. Proc. Ann. art. 2.13(a) (West 2005)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0877
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0877.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

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.[1] 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.[2] 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.

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). The emergency 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 examination 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 Old Am. 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 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 treatment 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 a "patient must be transported directly to the facility within a reasonable amount of time and without delay." Id. § 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."

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

[1] See 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/opin/index_rq.shtml ("Request Letter" and "Brief," respectively).

[2] The brief indicates that these hospitals have been deemed suitable by the local mental health authority as required by section 573.001(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).

[3] You 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) (West Supp. 2010), amended by Act of May 5, 2011, 82d Leg., R.S., ch. 85, § 3.001, 2011 Tex. Sess. Law Serv. 366, 436-37 (to be codified at TEX. CODE CRIM. PROC. ANN. art. 2.12(1)-(36)).