If a Virginia judge orders someone involuntarily committed but does not name a specific facility, can the sheriff hold the person at the emergency department past six hours while a bed is found?

Subject

The six-hour transport rule under Code § 37.2-829, and what happens when a commitment order does not name a specific facility.

Plain-English summary

Sheriff Smith of Augusta County asked the AG a question that comes up daily in rural Virginia. Someone is in a hospital emergency room under a temporary detention order. A special justice holds the commitment hearing in the ER, finds the person meets the involuntary commitment criteria, and signs the commitment order, but instead of naming a specific facility, the order says the person should go to "a facility deemed appropriate by the Department of Behavioral Health." The sheriff has been ordered to transport, but no destination has been specified. Meanwhile, the clock is running on a statutory transport deadline. Can the sheriff just wait at the ER until a bed opens up?

AG Jason Miyares said no. Code § 37.2-829 contains a hard, no-exceptions rule: "[i]n no event shall transport commence later than six hours after notification to the sheriff or alternative transportation provider of the judge's or special justice's order." The statute uses "no event" and "shall," which the AG read as foreclosing any waiting period. If the commitment order leaves the destination open, that is a problem the Commissioner of the Department of Behavioral Health and Developmental Services has to solve, not a problem the sheriff can solve by waiting.

Practically, that means the Commissioner has to designate a specific facility quickly enough that the sheriff can begin transport within the six-hour window. The opinion footnotes a "better practice" suggestion: instead of issuing orders with vague "facility deemed appropriate" language, special justices and community services boards should contact the Commissioner during the hearing to identify a specific facility, so the order leaves the courthouse with a real destination already named.

The AG also confirmed two related points. First, once the sheriff completes the transport, the sheriff's duty under § 37.2-829 is discharged; the sheriff is not on the hook to wait at the receiving facility for the screening process. Second, in the narrow case where EMTALA applies and the person's medical condition is not stabilized, the sheriff and the ER physician should consult about whether transport itself is appropriate. EMTALA may require continued ER care or an appropriate transfer to a medical (not commitment) facility before any commitment-facility transport.

What this means for you

If you are a Virginia sheriff or deputy facing this situation

Treat the six-hour clock as binding. When you receive notification of a commitment order with a vague facility designation, immediately contact the Commissioner's office (or its designee) to obtain a specific facility name. If a specific facility cannot be identified within the six-hour window, the legal failure is upstream of you. Document your communications.

Once you transport, you are done. You do not have to wait while the receiving facility processes admission paperwork, and prior AG opinions confirm this rule under earlier numbering. If a receiving facility tries to refuse custody after you arrive with a valid order, that is a different statutory issue (see Opinion 22-061 in this same issuance, addressing TDO refusals).

The EMTALA caveat in footnote 14 is important. If the ER physician tells you the patient's medical condition is not stabilized, do not assume that you should still depart on the six-hour clock. EMTALA can require the medical issue to be addressed first, including potentially through transfer to a medical facility able to treat the condition.

If you are a special justice or magistrate signing commitment orders

The opinion is a soft but clear instruction to name specific facilities in your orders. Use the "better practice" guidance in footnote 7: contact the Commissioner or the Commissioner's designee during the hearing if the community services board has not designated a specific facility. The vague "facility deemed appropriate" language sets the sheriff up for a statutory violation that they cannot avoid through patience.

For the statutory framework, your authority under § 37.2-817 to designate a facility is real, but the Commissioner's role under § 37.2-817(C) is the backstop when the community services board has not designated. Ideally, that backstop happens before you sign, not after.

If you are a community services board director or screening clinician

This opinion is a flag to upgrade your facility designation process. The default expectation of the General Assembly, the AG, and the sheriff is that a specific facility will be in the order at the time of signing. Your screening evaluation under § 37.2-817 is the moment to identify the facility. If your standard practice is to leave designation for later, the six-hour transport clock may already be impossible to meet.

If you are an emergency department physician

You may receive sheriffs in your ER asking to depart on a commitment transport while you are still working on a patient's medical condition. Document the medical reason for any transport delay in your records. EMTALA's appropriate-transfer requirement is your tool: a transport to a commitment facility that cannot treat the unstabilized medical condition is not an appropriate transfer.

If you are an attorney representing a person in civil commitment

The six-hour rule is also a protection for your client. Indefinite ER holds in handcuffs while a bed is sourced have been an ongoing concern. This opinion confirms that those holds violate the statute. If your client was held in the ER for many hours past the six-hour mark, you have grounds for habeas relief or a motion to dismiss the commitment order, depending on the procedural posture.

Common questions

Q: When does the six-hour clock start?
A: From "notification to the sheriff or alternative transportation provider of the judge's or special justice's order." That is when the sheriff is told the order has been signed and they must transport.

Q: What if the Commissioner does not designate a facility within six hours?
A: The opinion addresses the correct legal answer (the Commissioner must designate fast enough), not the practical fallback. In practice, sheriffs in this situation should consult their local commonwealth's attorney and document the delay. The patient may have a habeas claim. The Commissioner's slow response is a § 37.2-817(C) failure, not a § 37.2-829 failure.

Q: Does the six-hour rule apply to alternative transportation providers (family, CSB)?
A: Yes. The statute says "sheriff or alternative transportation provider," and the rule is the same for both.

Q: Can the sheriff drop the patient at any state facility, or only the designated one?
A: Only the facility designated in the order. Bringing the patient to a different facility is not authorized transport and the receiving facility can refuse custody.

Q: What does the sheriff do once transport is complete?
A: Hand over custody to the receiving facility staff in accordance with § 37.2-823 (which directs the facility director to immediately review admission papers and admit the person). The sheriff's transport duty under § 37.2-829 is discharged at that handoff.

Q: What about the opposite scenario, when the receiving facility says it has no bed?
A: The companion opinion 22-061 (also in this issuance) addresses that. Briefly: law enforcement maintains custody until the facility accepts custody, but the temporary-detention 72-hour limit still applies for TDO situations. For commitment orders, the receiving facility cannot refuse admission of a properly-ordered commitment.

Background and statutory framework

Virginia's civil commitment process under Title 37.2 has multiple stages. An emergency custody order (ECO) is the first; it allows holding a person up to eight hours while an evaluation occurs. A temporary detention order (TDO) is the second; it allows up to 72 hours of detention pending a commitment hearing. Once the commitment hearing occurs and a judge or special justice finds the criteria are met, the involuntary admission order under § 37.2-817 is issued.

Section 37.2-817(C) lays out the facility designation logic. The community services board that performed the preadmission screening evaluation should designate the commitment facility. If the board does not designate at the hearing, the Commissioner of DBHDS shall do so. The statute does not contemplate vague designations like "a facility deemed appropriate," and the AG's footnote 7 calls that practice contrary to legislative intent.

Section 37.2-829 then governs transport. The "in no event . . . later than six hours" language is unambiguous, and Virginia case law (Winston v. City of Richmond) confirms that clear statutory language requires no further interpretation. The companion provision in § 37.2-823 directs the receiving facility's director to review and admit upon receipt of the order.

The federal EMTALA layer adds a complication. EMTALA (42 U.S.C. § 1395dd) requires hospitals to stabilize emergency medical conditions or to perform an "appropriate" transfer. A transfer that is medically inappropriate (because the destination cannot treat the condition) violates EMTALA. The AG's footnote 14 acknowledges that this can override the six-hour transport timing in narrow cases.

Citations and references

Statutes:
- Va. Code Ann. § 37.2-817 (involuntary admission)
- Va. Code Ann. § 37.2-829 (transportation)
- Va. Code Ann. § 37.2-823 (admission upon order)
- 42 U.S.C. § 1395dd (EMTALA)

Cases:
- Winston v. City of Richmond, 196 Va. 403 (1954) (clear statutory language requires no interpretation)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/22-048-Smith-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

COMMONWEALTH OF VIRGINIA

Office of the Attorney General

Jason S. Miyares
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

January 19, 2023

The Honorable Donald L. Smith
Sheriff, Augusta County
Post Office Box 860
Verona, Virginia 24482

Dear Sheriff Smith:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire regarding a sheriff's authority to delay transportation of an individual who has been ordered to be admitted involuntarily to a facility and transported to such facility by the sheriff. You specifically ask, in the event a facility of commitment has not been identified, whether a sheriff may delay transportation beyond six hours after receiving notification of the order of involuntary admission ("commitment order").

Response

It is my opinion that transport of an individual subject to a commitment order must commence no later than six hours after notification to the sheriff or alternative transportation provider of the judge's or special justice's order. If a facility of commitment is not identified in the commitment order, the Commissioner of the Department of Behavioral Health and Developmental Services must designate a facility in sufficient time to permit a sheriff or alternative transportation provider to commence transport within six hours of notification of the order. Further, once transport to the commitment facility is completed, the sheriff or alternative transportation provider discharges his duty.

Background

You state that individuals subject to temporary detention orders often remain in emergency departments because the facility specified for temporary detention does not have any available beds. As a result, commitment hearings for these individuals frequently are held while the person is in the emergency department. You relate that there are times when the special justice, upon finding that an individual meets the commitment criteria for inpatient hospitalization, broadly designates as the facility for commitment a "facility deemed appropriate by the Department of Behavioral Health" instead of naming a specific facility in the commitment order. You question, for cases where the order directs the sheriff to transport the individual to the commitment facility, whether you can maintain custody of the individual longer than six hours if more time is needed to locate a commitment facility with an available bed.

Applicable Law and Discussion

As this Office previously has expressed, "[t]he primary purpose of the civil commitment process is to protect the public and the person from harm as a result of the person's mental illness." When a commitment hearing is held, if the judge or special justice finds that the commitment criteria are met, the judge or special justice must order that the person be admitted involuntarily to a facility for a period of treatment not to exceed thirty days. Pursuant to Virginia Code § 37.2-817(C), the involuntary admission shall be to a facility designated by the community services board that provided the preadmission screening evaluation. If, however, the community services board does not designate a facility at the commitment hearing, the person shall be involuntarily admitted to a facility designated by the Commissioner of the Department of Behavioral Health and Developmental Services.

You state that in your jurisdiction, in situations where the community services board does not designate a facility of commitment at the hearing, the special justices will designate "a facility deemed appropriate by the Department of Behavioral Health." Although the General Assembly likely intended that a specific facility of commitment be identified in the order at the time of the commitment hearing and entry of the order, the law does not expressly prohibit a judge or special justice from making a general designation to a facility to be determined by the Commissioner of the Department of Behavioral Health and Developmental Services.

Once a person has been ordered to be admitted to a facility under Code § 37.2-817, the judge or special justice must determine whether transportation shall be provided by the sheriff or by an alternative transportation provider. If the judge or special justice finds that transportation may be provided by an alternative transportation provider and the alternative provider is available, willing, and able to provide transportation in a safe manner, the judge or special justice may order transportation by the proposed alternative transportation provider. In all other cases, the judge or special justice shall order transportation by the sheriff of the jurisdiction where the person is a resident.

Regardless of whether transportation is ordered to be provided by the sheriff or an alternative transportation provider, Code § 37.2-829 states that "[i]n no event shall transport commence later than six hours after notification to the sheriff or alternative transportation provider of the judge's or special justice's order." The clear language of this statute requires no statutory interpretation. Section 37.2-829 requires the sheriff or alternative transportation provider to commence transport of any person ordered to be admitted involuntarily to a facility within six hours of notification of such order. Consequently, if a commitment order specifies that the commitment facility is a facility designated by the Commissioner, the Commissioner must designate a facility within six hours of the sheriff or alternative transportation provider receiving notification of the order to enable the sheriff or alternative transportation provider to begin transportation in accordance with the statute. Once transport to the commitment facility is completed, the sheriff or alternative transportation provider discharges his duty under § 37.2-829.

Conclusion

For the reasons stated above, it is my opinion that a sheriff or alternative transportation provider ordered to provide transportation of a person subject to a commitment order must commence transport no later than six hours after receiving notification of the order. If a facility of commitment is not identified in the commitment order, the Commissioner of the Department of Behavioral Health and Developmental Services must designate a facility in sufficient time to permit a sheriff or alternative transportation provider to commence transport within six hours of notification of the order. Once transport to the commitment facility is completed, the sheriff or alternative transportation provider discharges his duty.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General