ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

August 12, 2011 

The Honorable Jerry D. Rochelle 

Bowie County Criminal District Attorney 

Bowie County Plaza 

Post Office Box 3030 

601 Main Street 

Texarkana, Texas 75504 

Dear Mr. Rochelle: 

Opinion No. GA-0877 

Re: Responsibility for an individual who is the 

subject of an emergency detention order 

(RQ-0952-GA) 

You inquire about law enforcement responsibility for an individual who is the subject of an 

emergency detention order. I Referring to an emergency detention order issued in response to a peace 

officer's application for emergency detention under section 573.002, Health and Safety Code, you 

first ask which law enforcement agency is responsible for overseeing the individual subject to the 

order. See Request Letter at 1. 

Your brief indicates that members of the city police department and the county sheriff's 

department encounter persons who appear to be mentally ill and a danger to themselves or others. 

See Brief at 1. You also explain that these law enforcement officers regularly take such persons into 

custody and transport them to one of the two local hospitals.' See id. Your brief further states that 

the hospitals do not designate an employee who is responsible for preventing the person from leaving 

the hospital. See id. at 2. Finally, your brief explains that the Sheriff believes his department is not 

responsible for the person once the person has been delivered to the local hospital. See id. Rather, 

according to your brief, the Sheriff argues that his department is relieved of responsibility for the 

person and that responsibility is transferred to the city police department-because the hospitals lie 

within the city's jurisdiction. See id. 

ISee Letter and attached Brief from Honorable Jerry D. Rochelle, Bowie County Criminal District Attorney, 

to Honorable Greg Abbott, Attorney General of Texas at 1 (Mar. 8, 2011), https://www.oag.state.tx.us/opinl 

index_rq.shtml ("Request Letter" and "Brief," respectively). 

2The brief indicates that these hospitals have been deemed suitable by the local mental health authority as 

required by section 573.00l(d). See Brief at 3. See also TEx. HEALTH & SAFETY CODE ANN. § 573.001(d) (West 2010) 

(identifying facilities to which a person believed to be mentally ill may be taken); id. § 571.003(12) (defining mental 

health facility to include certain parts of a general hospital). 
The Honorable Jerry D. Rochelle - Page 2 (GA-0877) 

The Texas Mental Health Code, codified as subtitle C of title 7, Health and Safety Code, 

governs access to mental health care and treatment for mentally ill persons. See TEX. HEALTH & 

SAFETY CODE ANN. §§ 571.001-578.008 (West 2010). Specifically, chapter 573 authorizes a peace 

officer,3 without a warrant, to take a person into custody for the emergency detention if they appear 

to be mentally ill and pose a risk to themselves or others. See id. § 573.001. A peace officer who 

makes an emergency detention "shall immediately transport the apprehended person to: (1) the 

nearest appropriate inpatient mental health facility; or [if unavailable,] (2) a mental health facility 

deemed suitable by the local mental health authority." Id. § 573.001(d); see also Tex. Att'y Gen. 

Op. No. GA-0753 (2009) at 3 (concluding that an "inpatient mental health facility or a mental health 

facility is not statutorily authorized to require a peace officer to transport a person in custody under 

chapter 573 to a medical facility for a medical evaluation prior to taking that person to the mental 

facility"). Upon transporting the apprehended person to the mental health facility, the peace officer 

must immediately file an application for emergency detention and personally present it to a judge 

or magistrate. TEX. HEALTH & SAFETY CODE ANN. §§ 573.002, .012 (West 2010). Theemergency 

detention warrant serves as an application for detention in a mental health facility. Id. § 573.012(f). 

The facility must "temporarily accept a person for whom an application for detention is filed" 

and perform certain examinations. Id. § 573.021(a); see id. §§ 573.021(b) (requiring preliminary 

examination within 48 hours), 573.021(c) (requiring physician to examine person within 12 hours); 

see also id. § 573.021(b) (providing that a person accepted for a preliminary examinatjon may be 

"detained in custody" for specified time period). 

Chapter 573 does not address your question. While chapter 573 imposes certain 

responsibilities on the mental health facilities that receive persons with mental illness, the Mental 

Health Code does not address a situation wherein the mental health facility is unwilling or unable 

to ensure persons remain safely in the facility while awaiting their preliminary examination. See 

generally id. ch. 573. Neither your briefing to this office nor our research has uncovered any 

provision in chapter 573 that imposes a duty on a particular law enforcement agency to oversee the 

person while the person remains in the hospital's care. 

Because only the Texas Legislature is constitutionally empowered to make Texas law, this 

office is unable to construe a statutory requirement or duty when the Legislature has left the statute 

silent on the matter. See OldAm. Cnty. Mutual Fire Ins. Co. v. Sanchez, 149 S.W.3d 111, 115 (Tex. 

2004) (stating "because we presume that every word of a statute has been included or excluded for 

a reason, we will not insert requirements that are not provided by law"); see also Goldman v. Torres, 

341 S.W.2d 154, 158 (Tex. 1960) (stating that reading language into a statute usurps the 

Legislature's power); Tex. Att'y Gen. Op. No. GA-0279 (2004) at 4-5 (recognizing the Attorney 

General's authority to render legal advice does not include authority to legislate). In this case, it is 

particularly difficult to imply a statutory requirement because the statute reflects a comprehensive 

3y ou ask about only two law enforcement agencies, but under the Code of Criminal Procedure, a "peace officer" 

includes commissioned personnel from state, county, municipal, and other law enforcement agencies. See TEx. CODE 

CRIM. PROC. ANN. art. 2.12(1)-(36) (WestSupp. 2010), amended by Act of May 5, 2011, 82dLeg., R.S., ch. 85, § 3.001, 

2011 Tex. Sess. Law Servo 366, 436-37 (to be codified at TEx. CODE CRIM. PROC. ANN. art. 2.12(1)-(36». 
The Honorable Jerry D. Rochelle - Page 3 (GA-0877) 

scheme that the Legislature implemented to balance competing, compelling interests. See Campbell 

v. State, 68 S.w.3d 747,760 (Tex. App.-Houston [14th Dist.] 2001), aff'd, 85 S.W.3d 176 (Tex. 

2002) ("Commitment to a mental hospital is a weighty curtailment of one's liberty. Such a 

restriction on liberty requires the protections afforded by due process.") (citation omitted); see also 

Tex. Att'y Gen. Op. No. JM-360 (1985) at 4 (describing statutory predecessor to Mental Health Code 

as "a comprehensive code designed to provide access to humane care and treatment for persons 

suffering from severe mental illness" that also "sets out to safeguard [the person's ] legal rights"). 

Thus, we cannot advise you that chapter 573 places a duty to oversee an individual transported under 

section 573.002 on any particular law enforcement agency to the exclusion of another. 

Notwithstanding the absence of a specific duty under the Health and Safety Code, generally 

speaking, all Texas peace officers have a duty to preserve the peace. See TEX. CODE CRIM. PROC. 

ANN. art 2. 13(a) (West 2005) ("It is the duty of every peace officer to preserve the peace within the 

officer's jurisdiction."). Similarly, hospitals have some level of responsibility for their patients. Cf 

Boren v. Texoma Med. Ctr., Inc., 258 S.W.3d 224, 229 (Tex. App.-Dallas 2008, no pet.) 

(recognizing, in a tort context, that "[ w ]ithout the signed and executed detention order and warrant, 

Texoma had no lawful right to restrain, detain, or control" mentally ill patient). As a practical 

matter, we believe the Legislature intended for the Mental Health Code to facilitate teatment for 

mentally ill patients in an appropriate setting. See TEX. HEALTH & SAFETY CODE ANN. § 571.002 

(West 2010) (detailing purposes of the Mental Health Code including to "facilitate treatment in an 

appropriate setting"). The Legislature's intent is best served if area hospitals and relevant law 

enforcement agencies share responsibility for ensuring that persons in need of mental health services 

remain safely in the facility for the necessary treatment. 

Your second question is: "[o]nce court-ordered mental health services are ordered and the 

sheriff's office is ordered to transport the individual, does the sheriff immediately assume oversight 

of the individual?" Request Letter at 1 .. You tell us that there often is a delay between "the time the 

order is entered [and] the time the person is transported to the receiving facility due to lack of beds 

at the receiving facility." Brief at 3. Court-ordered mental health services implicate chapter 574 of 

the Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. §§ 574.001-.203 (West 2010) 

(chapter entitled "court-ordered mental health services"); see also Shike v. State, 961 S.W.2d 344, 

346 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd) (recognizing that the Health and Safety Code 

distinguishes between "emergency detentions" and "court-ordered mental health services"). That 

chapter sets out the requirements for the provision of court-ordered, or involuntary, mental health 

services. See TEX. HEALTH & SAFETY CODE ANN. §§ 574.001 (West 2010) (pertaining to the 

application for court-ordered mental health services), 574.031 (setting out general provisions relating 

to hearing on application), 574.034 (providing for order for temporary mental health services), 

574.035 (providing for order for extended mental health services). The chapter also provides for the 

protective custody of a person who is the subject of an application for court-ordered mental health 

. services. See id. §§ 574.021 ("Motion for Order of Protective Custody"), 574.022 (providing for 

issuance of protective custody order). Chapter 574 also provides for the apprehension and 

transportation of a person subject to a protective custody order. See id. §§ 574.023 (providing for 

apprehension), 574.045 (providing for transportation). Specifically, section 574.045(h) requires that 
The Honorable Jerry D. Rochelle - Page 4 (GA-OS77) 

a "patient must be transported directly to the facility within a reasonable amount of time and without 

delay." [d. § 574.045(h); see also id. § 574.045(a) (listing persons appropriate to transport a 

committed patient or person detained under section 573.022 or 574.023, and including the sheriff 

or constable, if no other person listed is available). Apart from this provision, nothing in chapter 574 

expressly states when the sheriff assumes oversight of the individual subject to court -ordered mental 

health services. Because the Legislature has not enacted a provision that specifically governs the 

situation explained in your brief, we can advise you only that chapter 574 requires the sheriff's office 

to transport a mentally ill person to a hospital within 'a "reasonable amount of time and without 

delay." 
The Honorable Jerry D. Rochelle - Page 5 (GA-OS77) 

SUMMARY 

There is no provision in chapter 573, Texas Health and Safety 

Code, that expressly requires a particular law enforcement agency to 

oversee a mentally ill person once the person has been transported to 

a facility pursuant to a section 573.002 emergency detention order. 

Because the Legislature has not enacted a statute that requires a 

specific law enforcement agency to oversee mentally ill persons, we 

cannot advise you that chapter 573 places a duty on any particular law 

enforcement agency over another. 

A sheriff's office must transport a person subject to courtordered mental health services under chapter 574 within a reasonable 

amount of time and without delay. 

DANIEL T. HODGE 

First Assistant Attorney General 

DAVID J. SCHENCK 

Deputy Attorney General for Legal Counsel 

JASON BOATRIGHT 

Chair, Opinion Committee 

Charlotte M. Harper 

Very truly yours, 

Assistant Attorney General, Opinion Committee