Which judge is the 'presiding judge' who can appoint a master for a mental-health probable-cause hearing in Texas?

Plain-English summary

When someone is held in protective custody during a court-ordered mental health case, the Health and Safety Code requires a probable-cause hearing within 72 hours to decide whether the person is too dangerous to be released while the main case is pending. Section 574.025(c) says that hearing "shall be before a magistrate or, at the discretion of the presiding judge, before a master appointed by the presiding judge." A state senator asked the Attorney General what "presiding judge" means in that sentence, because Harris County has two statutory probate courts (Probate Court No. 3 and No. 4) that both handle mental illness proceedings.

The opinion concluded that the "presiding judge" is the judge of the court in which the application for court-ordered mental health services is pending. It reached that result by reading section 574.025(c) together with the rest of subchapter B. Section 574.021(a) requires a motion for protective custody to be filed only in the court where the application for court-ordered mental health services is pending, and section 574.021(e) lets "[t]he judge of the court in which the application is pending" designate a magistrate to issue protective custody orders in the judge's absence. Read in pari materia, and following the rule that a statute should be given effect in its entirety (Government Code section 311.021(2)), those provisions point to the same judge. So for any given probable-cause hearing in Harris County, the presiding judge is the judge of whichever probate court has the application: if it is pending in Probate Court No. 3, that court's judge is the presiding judge; if in Probate Court No. 4, that court's judge.

Currency note

This opinion was issued in 2001. 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. The Mental Health Code provisions discussed here can change, so verify the current statute before relying on any specific section or rule.

What the opinion meant for those who asked

Harris County's probate courts (what the opinion held for them): The opinion held that the presiding judge for a section 574.025(c) probable-cause hearing is the judge of the probate court in which the underlying application for court-ordered mental health services is pending, not a fixed single court.

Judges and masters in mental health proceedings (what the opinion held for them): The opinion tied the authority to appoint a master to the same judge who controls the pending application, keeping the protective-custody and probable-cause steps in one court.

Common questions

What is the probable-cause hearing in a Texas mental health case?
The opinion described it as a hearing, held within 72 hours of a protective-custody detention, to decide whether the proposed patient poses a substantial risk of serious harm and cannot be at liberty while the court-ordered services case is pending.

Who is the "presiding judge" who can send that hearing to a master?
The opinion concluded it is the judge of the court where the application for court-ordered mental health services is pending.

How does that work in a county with more than one probate court?
The opinion explained that in Harris County the presiding judge is whichever of Probate Court No. 3 or No. 4 has the application before it.

Background and statutory framework

Chapter 574 of the Health and Safety Code governs court-ordered mental health services, and subchapter B covers protective-custody procedures. Section 574.025 requires a probable-cause hearing within 72 hours of a protective-custody detention (subsection (b)) to determine probable cause that the proposed patient presents a substantial risk of serious harm and that a physician has stated the basis for an opinion of mental illness (subsection (a)), and provides that the hearing be before a magistrate or, at the presiding judge's discretion, a master the presiding judge appoints (subsection (c)). Section 574.021(a) requires a protective-custody motion to be filed only in the court where the application for court-ordered mental health services is pending, and section 574.021(e) authorizes "[t]he judge of the court in which the application is pending" to designate a magistrate in the judge's absence. The opinion applied the in pari materia canon and Government Code section 311.021(2)'s instruction to construe a statute to be effective in its entirety.

Citations

Statutory provisions:

• Tex. Health & Safety Code Ann. §§ 574.021, 574.025 (Vernon 1992 & Supp. 2001)
• Tex. Gov't Code Ann. § 311.021(2)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0358
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0358.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

March 27, 2001

The Honorable J.E. "Buster" Brown
Chair, Natural Resources Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711-2068

Opinion No. JC-0358

Re: Definition of "presiding magistrate" for probable cause hearing pursuant to section 574.025, Texas Health and Safety Code (RQ-0296-JC)

Dear Senator Brown:

You have asked this office to interpret section 574.025 of the Health and Safety Code. Specifically, you have inquired as to the meaning of the phrase, "the presiding judge" in section 574.025(c). Reading that section in pari materia with the rest of subchapter B of chapter 574, we conclude that the "presiding judge" who may, pursuant to section 574.025(c), appoint a master before whom a probable cause hearing is to be heard is "[t]he judge of the court in which the application [for court-ordered mental health services] is pending." TEX. HEALTH & SAFETY CODE ANN. § 574.021(e) (Vernon 1992). Thus, depending on the court in which such an action is pending in Harris County, Texas, either the judge of Probate Court No. 3 or the judge of Probate Court No. 4 may be the "presiding judge" for the purpose of section 574.025(c).

Chapter 574 of the Health and Safety Code is concerned with the provision of court-ordered mental health services. Subchapter B is concerned with the procedures governing a motion that the proposed patient be held in protective custody. One of the subchapter's requirements is that a probable cause hearing be held "not later than 72 hours after the time that the proposed patient was detained under a protective custody order." Id. § 574.025(b) (Vernon Supp. 2001). This hearing must be held to determine if:

(1) there is probable cause to believe that a proposed patient under a protective custody order presents a substantial risk of serious harm to himself or others to the extent that he cannot be at liberty pending the hearing on court-ordered mental health services; and

(2) a physician has stated his opinion and the detailed reasons for his opinion that the proposed patient is mentally ill.

Id. § 574.025(a).

Section 574.025(c), about which you inquire, reads in relevant part "The hearing shall be before a magistrate or, at the discretion of the presiding judge, before a master appointed by the presiding judge." Id. § 574.025(c). It is the meaning of the phrase "presiding judge" in this subsection with which you are concerned.

We agree with the Harris County Attorney that the "presiding judge" for this purpose means the judge in whose court the application for court-ordered mental health services is pending. Section 574.021(a) requires, "A motion for an order of protective custody may be filed only in the court in which an application for court-ordered mental health services is pending." Id. § 574.021(a) (Vernon 1992) (emphasis added). Section 574.021(e) provides that "The judge of the court in which the application is pending may designate a magistrate to issue protective custody orders in the judge's absence." Id. § 574.021(e). We are instructed by section 311.021(2) of the Government Code to construe a statute so that it is effective in its entirety. Accordingly, reading these provisions and section 574.025(c) in pari materia, we conclude that "the presiding judge" is "the judge of the court in which the application [for court-ordered mental health services] is pending."

(Footnote: Letter from Honorable J.E. "Buster" Brown, State Senator, to Honorable John Cornyn, Attorney General (Sept. 29, 2000) (on file with Opinion Committee) [hereinafter Request Letter] (see correspondence attached).)

As you note, "In Harris County, two statutory probate courts have responsibility for mental illness proceedings, Probate Court No. 3 and Probate Court No. 4." Request Letter, supra note 1, at 1. Accordingly, the determination of who is the "presiding judge" for the purpose of any particular probable cause hearing will depend on the court in which the application for court-ordered mental health services is pending. If the application is pending in Probate Court No. 3, then the judge of that court is the presiding judge. If the application is pending in Probate Court No. 4, the judge of that court is the presiding judge for the purpose of section 574.025(c).

SUMMARY

The "presiding judge" who may appoint a master in a probable cause hearing under section 574.025(c) of the Texas Health and Safety Code is the judge of the court in which an application for court-ordered mental health services is pending.

Yours very truly,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee