. 1 

October 25, 1967 

Dr. John Klnross-Wrlght 

Commissioner 

Opinion No. M-152, 

Texas Department of Mental Re: Whether, by virtue of Article 

Health and Mental Retardation 317&b-2, Vernon's Civil StatBox S, Capitol Station utes, Article 3871b, Vernon's 

Austin, Texas . ~Clvll Statutes, and the Texas 

'Mental Health Code (Articles 

:5547-l, et seq., Vernon's 

Civil Statutes), the Department of Mental Health and 

Mental Retardation has the 

duty and authority to provide necessary medical treatment or services to persons 

admitted or committed, wlthDear Dr. Klnross-Wright:' 

out anyone else's consent, 

And related question. 

In your request for an opinion from this office you 

state the following: 

"Frequently, a mentally retarded persbn at 

one.of our special schools or.8 patient at one, 

of our mental hospitals who I@. ment&lly lncompetent will have a medical problem which needs 

Immediate attention such as the recent case of 

a mentally retarded pekon at on6 of our State 

schools whose jaw became swollen and obviously 

u.lt6 painful. 

4 

This person was a hyperactive 

highly excitable) young female whose natural 

parents:~could not be reached because Chey were 

out of the country. Viewed as an emergency lnvolving possible lqse of life, this person was 

phgs.lcally restrained, given sedation so that 

the necessary examination could be made and 

abscessed teeth were abstracted. . 

"It seems fattily bbvloue that many If not 

most of the duties and obligations of such a 

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. . 

Dr. John Kinross-Wright, page 2 (M-152) 

in regard to care, . _ , . . . parent, spouse or guardian 

custody and control of the stuoent or patlent c 

are relinquished and vested in the Department 

of Mental Health and Mental Retardation by vlr-, 

tue of Article 3871b, V.C.S., known as 'The 

Mentally Retarded Persons Act', as amended by 

Chapter 255, page 567 of the Acts of the 60th 

Legislature, Regular Session, 1967, and by the 

Texas Mental Health Code, codified in Article 

5547-1, et seq., V.A.C.S. 

"The 54th Legislature In 1955, approximately 

one month before passing 'The Mentally Retarded 

Persons Act', passed an Act relating to 'Medical 

treatment and services in State Hospitals and 

Special Schools', codified as Article 317&b-2, 

V.C.S. The preamble of public policy in this 

act of the Legislature reflected the desirability 

of prompt medical treatment in the State lnstitutions listed, but it does not appear to intend 

to make authorizations from parents, spouses 

or guardians mandatory but merely provided an 

alternative consent procedure if such consent 

was considered necessary. 

"Article 5547-70 requires the head of a 

mental hospital to provide adequate medical and 

~psychlatric care and treatment for every patient 

in accordance with the highest standards of medical practice and Article 3871b requires the Board 

(now the De 

Retardation P 

artment of Mental Health and Mental 

to designate the institution in which 

any mentally retarded person under Its jurisdlctl.on 

is placed, and may designate any lnstitution,or 

part thereof under Its management and control as a 

special facility for the dlagnoslis, special training, 

education, supervision, treatwent, care or control 

of mentally retarded persons. 

You request our opinion on the followlng,questlons. 

1. Whether the Department of Mental Health 

and Mental Retardation has the duty and authority 

without the consent of anyone to provide necessary 

,medlcal treatment services to persons admitted or 

committed to them under authority of: 

(a) Article 3871b, V.C.S., and/or 

(b) Texas Mental Health Code (Article 

5547-l et seq.)? 

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Dr. John Klnross-Wright, page 3 (M-152) 

2. If others must consent before necessary medical treatment services may be given, 

please indicate whose consent Is necessary In 

each class of persons? 

The Mentally Retarded Persons Act Is contained In 

Article 8871b, Revised Civil Statutes of Texas. Section 13 of 

that Act provides that the Board shall establish and maintain 

diagnostic centers in its own Institutions and may, If It desires 

and the diagnosis warrants, Inform the parents, or spouse, or 

guardian, or responsible relat-lve of the Inmate of the results 

of the examination and any recommendations of the staff conducting 

the examination and rendering the diagnosis. 

Article 5547-1, et seq., Vernon's Civil Statutes, contains the provisions relative to the Texas Mental Health Code. 

Section 70 of that Act expressly provides that the head of a 

mental hospital shall provide adequate medical and psychiatric 

care and treatment for every patient In accordance with the 

highest standards accepted in medical practice. 

Article 317413-2, Vernon's Civil Statutes, which gives 

the Board power to provide medical treatment and services wlthout the consent of relatives, etc., provides as follows: 

"The Board for Texas State Hospitals and 

Special Schools, directly or through Its authorized agent or agents, shall provide or perform recognized medical treatment or services 

to persons admitted or committed to Its care. 

Where the consent of any person or guardian is 

considered necessary, and 1s requested, and such 

person or guardian shall fail to Immediately reply thereto, the performance or provision for the 

treatment or services shall be ordered by the 

,superlntendent upon the advice and consent of 

three (3) medical doctors, at least one of whom 

must principally be engaged in the private practice of medicine. Where there is no guardian 

or responsible relative to whom request can be 

made, treatment and operation shall be performed 

on the advice'and consent of three (3) physicians 

licensed by the State Board of Medical Examiners. 

This authority shall not allow the performance of 

any operation Involving sexual sterillzatlon or 

frontal lobotomies." 

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Dr.., John Klnross-Wright, page 4 (M-152) 

The Preamble of Public Policy for said Article 317&b-2 

states the following: 

"It Is the sense of the Legislature that 

laws are insufficient or nonexistent which 

regulate the duties of the Board for Texas State 

Hospitals and Special Schools with respect to the 

performance of op'erations, surgery, and treatment 

of persons committed to the care of s ch Board; 

and that this condition causes undue i nd harmful 

delay, while the consent of such perions is being 

secured for such purposes, to the detriment of 

health and impairment of life of persons being 

treated in hospitals controlled by the Board 

for Texas State Hospitals and Special Schools; 

and that It would be advantageous to have 

speclflc authority to perform such services." 

The Title of the above described Act provides that It 

Is for the purpose of permitting the Board of Texas State Hospitals and Special Schools to provide or perform necessary treatment and medical services to persons admitted or committed to Its 

care without the consent of responsible relatives or guardians 

In certain cases. 

In 1965 the State Board for Texas Hospitals and Special 

Schools was abolished when the Legislature enacted the Texas 

Mental Health and Mental Retardatl~on Act, codified as Article 

5547-201 to 5547-204, Vernon's Civil Statutes, which created the 

Texas Department of Mental Health and Mental'Retardation and 

gave It the exclusive management and control of State hospitals 

and schools. 

It is the opinion of this department that, if feasible, 

It would be the better practice for the Board to obtain the 

permiss;ion of the spouse, parents, relative or guardian; however, 

such consent Is not required If the procedure set out in said 

Article 3i74b-2, Vernon's Civil Statutes, Is followed. 

SUMMARY 

Under the provisions of Article 317&b-2, 

Vernon's Civil Statutes, 3871b, Vernon's Civil 

Statutes, and the Texas Mental Health Code (Artlcle 5547-1, et seq., Vernon's Civil Statutes), 

the Department of Mental Health and Mental Retardation has the duty and authority to provide 

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Dr. John Klnross-Wright, page 5 (M-152) 

necessary medical treatment or serv,$ces to 'persons admitted or committed without obtaining 

anyone else's consent. 

Prepared by Jack Sparks 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

Kerns Taylor, Co-Chairman 

W. V. Geppert 

Malcolm Quick 

James Broadhurst 

Roger Tyler 

A. J. CARUBBI, JR. 

Staff Legal Assistant 

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