NEY GENERAL,
OF EXAS
Honorable Joe Resweber Opinion No. C-435
County Attorney
Harris County Re: Sheriff's use of force in
Houston, Texas apprehending mentally ill
persons under the Rnergency
Warrant Procedure of Artl-
cle 5547-27, V.C.S., and
under an Order of Protective
Custody under Article 5547-
Dear Mr. Resweber: 66, V.C.S.
You have requested an opinion of this office on the
three following questions relating to the degree of force that
may be employed in apprehending mentally ill persona under the
above captioned statutes:
"1. Do the standards governing the use
of force in a criminal arrest apply?
“2. Are the deputies authorized to break
down a door of a private residence to take a
patient?
"3. What protection do the deputies have
If they are attacked by the allegedly mental-
ly ill person while attempting to take such
person into custody?"
The purpose of the Mental Health Code Is set out in
Article 5547-2, Vernon's Civil Statutes, as follows:
"It is the purpose of this Code to pro-
vide humane care and treatment for the men-
tally ill and to facilitate their hospltali-
zation, enabling them to obtain needed care,
treatment and rehabilitation with the least
possible trouble, expense and embarrassment
to themselves and thelr families and to elimi-
nate so far as possible the traumatic effect
on the patient's mental health of public trial
Honorable Joe Resweber, page 2 (C-435)
and criminal-like procedures, and at the
same time to protect the rights and liber-
ty of every one. In providing care and
treatment for the mentally ill, the State
acts to protect the community from harm and
to serve the public interest by removing
the social and economic burden of the men-
tally ill on society and the burden and dis-
turbing effect of the mentally ill person on
the family, and by care and treatment in a
mental hospital to restore him to a useful
life and place in society. It is also the
legislative purpose that Texas contribute
its share to the nation-wide effort through
care, treatment and research to reduce the
prevalence of mental illness."
The intent of the Legislature in enacting this Code
was to provide for the treatment of the mentally Ill as pa-
tients and not as criminals. The Legislature of this State
expressed deep concern for the welfare of our mentally Ill and
throughout the provisions of this Code attempted in every possi-
ble way to remove all criminal connotations or social stigma
which might attach to the care and handling of these unfortu-
nates. However, the Legislature recognized that there were
specific situations which required prompt attention In order
to protect the mentally ill as well as the general public. For
this reason provisions were made for emergency warrantsin
Article 5547-27, Vernon's Civil Statutes, and orders of pro-
tective custody in Article 5547-66,VernonIs Civil Statutes.
Article 5547-27 provides:
"Any health or peace officer, who has
reason to believe and does believe upon the
representation of a credible person, in
writing, or upon the basis of the conduct
of a person or the circumstances under which
he is found that the person Is mentally ill
and because of his mental illness is likely
to cause injury to himself or others if not
immediately restrained, may upon obtaining
a warrant from any magistrate, take such
person into custody, and immediately trans-
port him to the nearest hospital and make
application for his admission, pursuant to
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Joe Resweber, page 3 (C-435)
thewarrantof the magistrate. Such person
admitted upon such warrant may be detained
in custody for a period not to exceed twenty-
four (24) hours, unless a further written
order is obtained from the County Court or
Probate Court of such county ordering fur-
ther detentlon. Provided, however, that
should the person be taken Into custody on
a Saturday or Sunday, or a legal holiday,
then the twenty-four-hour period allowed for
obtaining the court order permitting further
detention shall begin at 9:OO o'ulock a.m.
on the first succeeding business day."
Article 5547-66provides:
"If in the county court in which an ap-
plication for Temporary Hospitalization or
a Petition for Indefinite Commitment Is
pending, a Certificate of Medical Esamlna-
i-ionfor Nental Illness Is filed showing
that the proposed patient has been examined
within five (5) days of the filing of the
Certificate and stating the opinion of the
examining physician that the proposed pa-
tient Is mentally ill and because of his
mental illness is likely to cause injury to
himself or ~othera If not Immediately res-
trained, the judge may order any health or
peace officer to take the proposed patient
Into protective custody and Immediately
transport him to a designated mental hospl-
tal or other suitable place and detain him
pending order of the court."
The long established common law rule is that a person
actually Insane may be arrested and detained, without a warrant
or l,egalprocess first issuing, when an arrest is necessary to
prevent Immediate bodily injury to the mentally ill person or
another,and any 'personapprehending a mentally ill person acted
at his peril based upon the apprehended person's actual lnsani-
See Loving v. Hazelwood, 184 S.W. 355 (Tex.Clv.App.'1916
error ref.), In Re Allen, n A. 1078 (1909), see also Porter
v. Ritch, 70 Corm. ;ij3 39 A. 169 (1898)
(1842), Appeal of Sleeper, 147
Davis v. Herrill, m. Rep
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Honorable Joe Resweber, page 4
In Davis v. Merrill, supra, an action was brought for
trespass for assault and false imprisonment. The court held
that the defendants, members of the Board of Selectmen, who
assisted in the apprehension of the plaintiff were absolved
of any liability and made this comment relating to the force
used in apprehending the plaintiff:
"The Defendants are found to have acted
in good faith, and not to have used unneces-
sary force. They can not, therefore, be con-
sidered as trespassers or wrong-doers." Also
see requested charge In Look v. Deen, 108
mss. 116 (1861).
A father sued his son In Maxwell v. Maxwell, 189
Iowa 7, 177 N.W. 541 (1920), for false arrest and imprisonment
and the proof established that the son caused the sheriff to
take his father into custody because, as the son contended,
his father's mental condition made It unsafe for him to re-
main at large. The court stated:
"If the plaintiff was, at the time he
was restrained, of unsound mind, and by
reason thereof incapable of caring for him-
self and Incapable of exercising rational
self-control, and this condition of mind im-
periled his own safety and rendered reason-
able restraint necessary to protect him from
injury, or if by reason of his mental condl-
tion he was Incapable of exercising rational
self-control, and the lack of such power im-
periled the safety of others, then on sustain-
ing the relationship to him which this defen-
dant sustained would be justified, under the
law, in placing him under such restraint as
was reasonably necessary to protect him against
himself and the public from the dangers inci-
dent to his condition." (Emphasis added.)
It is the opinion of this office that In apprehend-
ing mentally ill persons, the degree of force which may be used,
whether it be at common law or pursuant to a warrant, would be
that force which Is reasonably necessary under the circumstance
to protect the mentally ill person and the general public with
the officer making the apprehension bearing in mind that the
person being restrained has not committed any act against the
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. .-
Honorable Joe Resweb:er,page 5 (C-435)
l,a.ws
o,four society and such restraint is.being imposed upon
such permn th.rough,no fault of his own.
With reference to your second question a health or
peace officer does have the authority to bre,akdown a door of
a private residence to apprehend a mentally Ill person when
St is reasonably necessary under the circumstance8, taking into
account the u.rgencyand'nec,essityof each situation, to pro-
taot the mentally ill person from himself or in order to pro-
the public. While it is true that our statutes
tect members~~.of
only authorize peace officers to break down a door of private
residences in a felony case, it is important to note the ar-
rest and detention of a mentally ill person is based upon hia
inability to care for himself, as well as for the protection
of others when there exists a clear and present d,angertomthe
mentally ill person or anothe,r.
Your third question relates to what proteotion of-
fleers have if they are attacked by the allegedly mentally ill
person during an attempted arrest.
It 1s~our opinion that the officer ha8 th,erfght of
self defense in this situation, as in any other arrest, to
use whatever force,is reasonably necessary to protect himself.
Article ll&, V.P.C.
SUMMARY
In the,apprehension of a mentally 311
person the standard governing t,heuse of
force, is that force which is reasonably
necessary under the circumstances to pro-
tect the mentally ill person and the~,gener-
al public. The authority of such officers
to break down the door of a private resi-
dence is governed by the same test.taking
into account the urgency and necaesity of
each situation. The officers have the
right of self defense if attacked by the
mentally ill person.
Yaurs very truly,
WAGGCNER CARR
Attorney General of Texas
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--.
Honorable Joe Resweber, page 6 (C-435)
Assistant Attorney General
RWN/lh/br
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Milton Richardson
Edward R. Moffett
Grady Chandler
John Banks
APPROVED FOR TIiEATTORNEY GENERAL
BY: Stanton Stone
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