MsrchlO, 1976
The Honorable Joe Resweber Opinion No. H-793
Harris County Attorney
Harris County Courthouse Re: Mental hospital
Rouston, Texas 77092 emergency admissions and
related questions.
Dear Mr. Resweber:
You have asked several questions concerning the respon-
sibility of the sheriff with respect to the apprehension,
transportation, and detention of persons thought to be
mentally ill. The first of them is:
1. Must the Sheriff of Harris County
comply with Subsection B of Article
5547-28, V.A.C.S. and make application
for admission of a patient brought to the
hospital by the sheriff pursuant to a
warrant issued by a magistrate, when in
fact the sheriff has no personal knowledge
of the mental state of the patient or the
circumstances surrounding the warrant being
issued for the patient's apprehension and
transportation to the mental hospital?
Articles 5547-27 and 5547-28 of the Texas Mental Health
code, as amended in 1975, read in part:
Art. 5547-27. Authority of health or
peace officer
Any health or peace officer, who
-- has
reason to believe and does believe upon
therapTiisWn~ Ee~erson,
in writing, or upon the basis of the conduct
of a person ijF the circumstances under which
p. 3344
The Honorable Joe Resweber - page 2 (H-793)
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
him to the nearest hospital or other
facility deemed suitable by the county
health officer. . . .Such person admitted
upon such warrant may be detained in
custody for a period not to exceed twenty-
four (24) hOUr8, unless a further written
order is obtained from the County Court
or Probate Court of such county, ordering
further detention.
. . .
Art. 5547-20. Emergency a&nission
The head of a mental hospital, a general
hospital, or other facility deemed suitable
by the county health officer shall not admit
nor detain any person for eme
xn and treatment unless:
(a) A warrant h-n obtained from a
magistraFe orderin~~prehension and
takins into custodv of such verson to be
(b) A written a lication is made by a
health OF peace ofF=-lmi---
leer w o as scperson
in his custody stating the circumstances
under which the person was taken into custody
and the officer's belief and the reasons
therefor that the person is mentally ill and
that because of his mental illness is likely
to cause injury to himself or others if not
immediately restrained: -
and
p. 3345
The Honorable Joe Resweber - page 3 (H-793)
(c) A written and certified opinion is
made by zhmalofhcer on duty at t=
hoepital or other facility, that after a pre-
liminary examination, the-person has symptoms
of mental illness and is likely to cause
injury to himself or others if not immediately
restrained. (Emphasis added).
The distinction between an emer enc
to article 5547-20, V.T.C.S., ana-zii%&0~~~~";~~u:~:":~"'
an order of protective custody issued under article 5547-66,
V.T.C.S., can easily be misapprehended. The latter statutory
provision reads:
If in the county court in which an Applica-
tion for Temporary Hospitalization or a
Petition for Indefinite Commitment is
pending, a Certificate of Medical Examin-
ation for Mental 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
patient is mentally ill and because of his
mental illness is likely to cause injury to
himself or others if not immediatelv restrained,
the iudae mav order any health or peace officer-
--,p-P
to take-the -ro osedI patient into E;;t;;t;ve
iE%%
-_---..-..----:ely
transport
ted mental hospital or other suitable
place and detain him pending order of the
Court. (Emphasis added).
A person taken into protective custody under the authority
of article 5547-66, V.T.C.S., and admitted to the designated
hospital in response to the order has not been admitted to
the hospital "for'emergency ObBerVaiiOn and treatment" as
that phrase is used by the Texas Mental Health Code. Such
an admission is authorized.wholly apart from articles 5547-
27 and 5547-20, and the person is detained merely to await
the action of the court on the application or petition
pending before it.
p. 334L
. _;
The Honorable Joe Resweber - page 4 (I{-793)
However, a person originally taken into protective
custody by an officer for transportation to a designated
hospital pursuant to a court order might, by his conduct,
convince the officer that immediate, emergency observation
and treatment is necessary at the nearest hospital, even
though it is not the one designated by the order. If so,
the officer may take the person there, and the protective
custody order will serve as a substitute for the magia-
irate's warrant, which otherwise would be necessary for
emergency commitment. But it does not obviate the need to
satisfy other prerequisites to emergency admission.
An officer, such as the sheriff, is not authorized to
apply for the emergency admission of a person to a mental
hospital under article 5547-20, V.T.C.S., unless the officer
believes that the person is mentally ill and that because of
his mental illness he is likely to cause injury to himself
or others if not immediately restrained. If the officer who
has custody of the person is unable or unwilling (1) to make
a written application for the emergency admission of the
person on the statutory basis; (2) to state his reasons
for that belief, whether based on personal observation or
on the representations of a credible person: and (31 to
explain how the person came to be in his custody; then the
law does not authorize an emergency admission.
Your next two questions are:
2. When the Sheriff of Harris County
presents a patient for admission pursuant
to a warrant issued under article 5547-27,
V.A.C.S., and refuses to make application
for admission of the patient pursuant to
Paragraph B of Article 5547-28 because
the sheriff has no personal knowledge of
the patient's mental state, what should
the head of a psychiatric hospital do?
p. 3347
The Honorable Joe Resweber - page 5 (H-793)
3. What minimum requirements must the
Lpplication for admission
. _ outlined in
Paragrapn B of Article 5547-28, V.A.C.S.,
meet before the head of a mental hospital
may admit a patient?
The sheriff is never authorized to take a person into
custody pursuant to article 5547-27, V.T.C.S., unless he
"has reason to believe and does believe" that the person is
mentally ill and dangerous to himself or others, and unless
he has also secured a warrant from a magistrate on that
basis. The opinion formed by the sheriff need not be based
upon "personal knowledge" of the person's mental state. It
can be based upon the representation of a credible person.
If the sheriff, after taking a person into CUBiOdy under the
authority of article 5547-27, V.T.C.S., refuses to make
application for an emergency admission, then the head of the
hospital Cannot admit the person on an emergency basis
unless, of course, the head of the hospital or another
BubBeqUenily acts as the officer empowered by article 5547-
27 to secure a warrant and take the person into Custody.
But the shariff need make no representations "upon
personal knowledge" of the person's mental state. If he
satisfies the requirements of article 5547-20(b), which are
plainly stated and have been diBcussed above, the head of
the hospital may not refuse emergency admission solely
because the sheriff refuses to make the application on the
basis of "personal knowledge." It is enough if the sheriff,
in writing, states that he believes the person in his custody
to be mentally ill and dangerous, and explains the reasons
he holds that belief and the circumstances under which hz
took the person into his custody.
your fourth‘and fifth questions are:
4. Must the Sheriff of Harris County
execute a Writ directing him to trans-
port a patient pursuant to Section 61 of
Article 5547, V.A.C.S.?
p. 3348
The Honorable Joe Resweber - page 6 (ll-'793)
5. How Should the Sheriff determine
"if other means are available," as that
term is used in Paragraph C of Section
64 of Article 5547, V.A.C.'S.?
Articles 5547-61 and 5547-64 read:
Art. 5547-61. Person authorized to
transport patient
(a) The court may authorize a rela-
tive or other responsible person having
a proper interest in the welfare of the
patient to transport him to the designated
mental hospital.
(b) If the head of the designated
hospital advises the court that hospital
personnel are available for the purpose,
the court may authorize the head of the
hospital to transport the patient to the
designated mental hospital.
(12) Otherwise, the court may authorize
the sheriff to transport the patient to the
designated mental hospital.
Art. 5547-64. Transportation of patients
(a) Friends and relatives of the patient
at their own expense may accompany him to
the mental hospital.
(b) Every female patient Bha:l beg.%ccn~-
panied by a female attendant unless accompar,ied
by her father, husband or adult brother or ~(on
during conveyance to the mental hcq>i?al.
(c) The patient shall not be trans;l,olt.:z
in a marked police or sheriff's car or ac:com..
panied by officers in uniform if othec means
are available.
p. 334'1
.
The Honorable Joe Resweber - page 7 W-793)
These two statutes are found in the part of the Texas
Mental Health Code having to do with court orders of commit-
ment and they contemplate that a court order will desi.gnate
the persons responsible for transporting the patient; If
the court designates the sheriff as that person, or a: one
of such persons, it is the duty of the sheriff to discharge
the obligation lawfully imposed upon him by the court.
V.T.C.S. art. 6073; 52 Tex.Jur.Zd, Sheriffs, Constables,
and Marshalls, 5 0.
Whether the sheriff has available the means other than
marked cars or uniformed officers to transport patients is a
question of fact that must be reasonably determined by the
sheriff in the first instance, taking into consideration all
the facts and circumstances existing at the time the question
arises. "Available means" must be understood as adequate
available means. Undoubtedly, on occasion the emergency may
be so acute, or some mental patients may be so violent,
that they may be safely transported only in police vans:
but, generally, if the sheriff can safely and economically
arrange adequate unmarked transportation and nonuniformed
accompaniment for the patient, it is his duty to do so.
Your last question is:
6. Is the Sheriff of Harris County
authorized or required to apprehend and
return a patient to a mental hospital
who has escaped or whose furlough has
been cancelled under the provisions
outlined in Section 1721 of Article
5547, V.A.C.S.?
Article 5547-72, V.T.C.S., reads:
Art. 5547-72. Patients absent without
authority
(a) The head of a mental hospital
shall initiate action to regain custody
of any patient who is absent without
authority.
p. 3350
The Honorable Joe Resweber - page 0 (H-793)
(b) It is the duty of any health or
peace officer to take into protective
custody and detain any such patient and
to report the same to the head of the
mental hospital or to the county judge
and upon the order of either to transport
the patient back to the mental hospital.
The provisions of this statute are plain, but do not
apply to voluntary patients. Accordingly, the sheriff ha;:
a duty to apprehend and return escaped patients and those
who are away without leave. --
But see Attorney General
Opinion M-432 (1969).
SUMMARY
An emergency admission of a patient under
article 5547-20, V.T.C.S., may not be made
unless the officer having custody of the
proposed patient makes the required written
application. The officer need only state his
belief that the person is mentally ill and
dangerous, the reasons for his belief, and
the circumstances under which the person
came into his Custody.
Sheriffs must transport mental patislrt::;
when ordered to do so by a competent
COUri and must use all reasonable efforts
to do so with unmarked cars and nonuriforroed
people. The sheriff must also apprehend
and return escaped patients and those
who are away without leave, except fo:
voluntary patients.
Very truly yours,
Attorney General or'?rxas
p. 3351
The Honorable Joe Resweber - page 9 (H-793)
Opinion Committ6e
jwb
p. 3352