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 ofan emergency detention order (RQ-0952-GA)

You inquire about law enforcementresponsibility for an individual who is the subject ofan emergencydetention order. I Referringto an emergencydetention orderissuedinresponseto apeace 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 Briefat 1. You also explainthat these law enforcement officers regularlytake suchpersons into custody and transport them to one ofthe two local hospitals.' See id. Your brieffurther states that the hospitals donotdesignate anemployeewho is responsibleforpreventingthepersonfrom leaving the hospital. See id. at 2. Finally, your briefexplains that the Sheriffbelieves his departmentis 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 ofresponsibility for the person and that responsibility is transferred to the citypolice department-because the hospitals lie within the city'sjurisdiction. See id.

ISee Letter and attached Brieffrom 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 Briefat 3. See also TEx. HEALTH & SAFETYCODE ANN. § 573.001(d) (West2010) (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 ofa general hospital).The Honorable Jerry D. Rochelle

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The Texas Mental Health Code, codified as subtitle C oftitle 7, Health and Safety Code, governs access to mental health care and treatment for mentally ill persons. See TEX. HEALTH & SAFETY CODEANN. §§ 571.001-578.008 (West2010). Specifically, chapter573 authorizes apeace officer, 3 without a warrant, to take a person into custody for the emergency detention ifthey 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 [ifunavailable,] (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 "inpatientmental 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 ajudge ormagistrate. 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 examineperson 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 statutoryrequirement or duty when the Legislature has left the statute silent on the matter. See OldAm. Cnty. Mutual FireIns. Co. v. Sanchez, 149 S.W.3d 111, 115 (Tex. 2004) (stating "because we presume that every word ofa statute has been included or excluded for a reason, we will not insertrequirements that are not providedby 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

3you askabout only two law enforcementagencies, butunder the Code ofCriminal 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), amendedbyActofMay 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

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schemethattheLegislatureimplementedto balancecompeting, compellinginterests. 

### See Campbell v. State, 68 S.w.3d747,760 (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'yGen. Op. No. JM-360(1985) at4 (describing statutorypredecessorto MentalHealthCode 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 adviseyou thatchapter573 places a dutyto oversee anindividual transportedunder section 573.002 on any particular law enforcement agency to the exclusion of another. Notwithstanding the absence ofa 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 ofevery peace officer to preserve the peace within the officer'sjurisdiction."). Similarly, hospitals have somelevel ofresponsibility for theirpatients. 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]ithoutthe 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 ofthe Mental Health Code including to "facilitate treatment in an appropriate setting"). The Legislature's intent is best served if area hospitals and relevant law enforcementagencies shareresponsibilityfor ensuring thatpersons inneedofmental 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 orderedto transport the individual, does the sheriffimmediately assume oversight ofthe individual?" RequestLetter at 1

.. You tell us that there often is a delaybetween "the time the order is entered [and] the time the person is transported to the receiving facility due to lack ofbeds at the receiving facility." Briefat 3. Court-ordered mental health services implicate chapter 574 of theHealth and Safety Code. 

### See TEX. HEALTH & SAFETYCODE 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 thatthe Health and Safety Code distinguishes between "emergency detentions" and "court-ordered mental health services"). That chapter sets out the requirements for the provision ofcourt-ordered, or involuntary, mental health services. 

### See TEX. HEALTH & SAFETY CODE ANN. §§ 574.001 (West 2010) (pertaining to the application for court-ordered mentalhealth services), 574.031 (setting out generalprovisionsrelating to hearing on application), 574.034 (providing for order for temporary mental health services), 574.035 (providing for orderfor extendedmental health services). Thechapter alsoprovidesfor 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 ofProtective Custody"), 574.022 (providing for issuance of protective custody order). Chapter 574 also provides for the apprehension and transportation of

## aperson subject to a protective custody order. 

### See id. §§ 574.023 (providing for apprehension), 574.045 (providingfortransportation). Specifically, section 574.045(h)requiresthatThe Honorable Jerry D. Rochelle

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### (GA-OS77)

a "patientmustbetransported directlyto the facility within a reasonable amount oftime andwithout 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 orconstable, ifno otherperson listedis available). Apartfromthis provision, nothingin chapter574 expressly states whenthe sheriffassumes oversightoftheindividual subjectto court-orderedmental health services. Because the Legislature has not enacted a provision that specifically governs the situation explainedin yourbrief, wecan adviseyou onlythatchapter574requires 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

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### SUMMARY
Thereis no provision in chapter 573, Texas Health and Safety Code, that expresslyrequires a particularlaw enforcement agency to oversee a mentally illperson oncethe 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 illpersons, we cannot advise you thatchapter 573 places aduty on any particularlaw enforcement agency over another.
A sheriff's office must transport a person subject to courtorderedmental health services under chapter 574 within areasonable amount oftime 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