## KEN PAXTON ATTORNEY GENERAL OF TEXAS



### The Honorable Nicholas "Nico" LaHood Bexar County Criminal District Attorney 101 West Nueva, 7th Floor San Antonio, Texas 78205-3030

Dear Mr. LaHood: April 17, 2017

Opinion No. KP-0141
Re: Authority to appoint associate judges to preside over proceedings for court-ordered mental health services ·pursuant to section 574.0085 ofthe Health and Safety Code (RQ-0135-KP)

Yourequest anopinion addressing whichpublic official appoints associatejudgespursuant to subsection 574.0085(a) ofthe Health and Safety Code. 1 

### Chapter 574·ofthe Health and Safety Code governs court-ordered mental health services. 

### See TEX. HEALTH & 

### SAFETY CODE §§ 574.001-.203. Through this chapter, the Legislature authorized certain judges to commit individuals to involuntary psychiatric care in specific circumstances. 

### See id. §§ 574.034-.035 (authorizing ajudge to order a proposed patient to receive court-ordered inpatient mental Health services upon making certain findings). Specifically, the law requires that the "statutory or constitutional county court that has thejurisdiction ofa probate court in mental illness matters" conduct the proceedings for court-ordered mental health services. 

### Id. § 574.008(a). In addition, the Legislature authorized the appointment ofassociatejudges to preside over such proceedings:

. The countyjudge may appoint a full-time or a part-time associate judge to preside over the proceedings for court-ordered mental health services ifthe commissioners court ofa county in which the court has jurisdiction**au~horizes** 

### the employment of an associate judge. 

### Id.§ 574.0085(a). You ask aboutthe meaning oftheterm "countyjudge" as used inthis provision. Request Letter at

.1. You explain that it could mean the presiding officer of the county commissioners court or, alternatively, the presiding judge of the county.probate court with jurisdiction over mental illness matters. 

### Id. at 2-4.

1See Letter from Honorable Nicholas "Nico" LaHood, Bexar Cty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1(Oct. 12, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").The Honorable Nicholas "Nico" LaHood

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Texas law establishes both constitutional and statutory county courts, and the presiding officers ofboth can be referred to as "countyjudges." 

### See, e.g., TEX. HEALTH & SAFETY CODE § 574.0085(b) (explaining that persons eligible to serve as an associatejudge include "a retired countyjudge, statutory or constitutional"); TEX. EST. CODE§ 22.007(b) (defining "county court" for purposes ofthe Estates Code to include both constitutional and statutory courts with probate jurisdiction). With regard to constitutional county courts, article V, section 15 of the Texas Constitution establishes a "County Court" for each county and the position of"County Judge" to preside over those courts. TEX. CONST. art. V, § 15. The constitutional county courtjudge also
serves as presiding officer ofthe county commissioners court. 

### Id. art. V, § 18(b). These courts are commonly referred to as "constitutional county courts" to distinguish them from county-level courts created by statute. 

### See Tex. Pipe Line Co. v. Hunt, 228 S.W.2d 151, 153 (Tex. 1950) (referring to courts created by article V, section 15 as "constitutional county courts"). Constitutional county courts have "jurisdiction as provided by law," including concurrent jurisdictionwithjustice courts and district courts in some civil cases. TEX. CONST. art V, § 16; 

### see also TEX. Gov'T CODE §§ 26.041 (explaining that a constitutional county court hasjurisdiction conferredby subchapterD, chapter26 ofthe Government Code and otherlaw), .042 (outliningthe general civiljurisdiction ofthe constitutional county court). Relevant to your request, some but not all constitutional county courts havejurisdiction over mental health proceedings. 

### See TEX. Gov'T CODE § 26.052(b) (authorizing the constitutional county courtjudge to elect not to have jurisdiction overmental healthproceedings). Chapter 25 of the Government Code establishes statutory county courts. 

### See id. §§ 25.0001-.2702; 

### see also TEX. CONST. art. V, § 1 (authorizing the Legislature to "establish such other courts as it may deem necessary"). Statutory county courts may have "jurisdiction over all
causes and proceedings, civil and criminal, original and appellate, prescribed by law for county courts." TEX. Gov'TCODE § 25.0003(a). "Thejudge ofa statutory county court may appoint the personnel necessary for the operation ofthe court

... ifthe commissioners court has approved the creation ofthe position." 

### Id. § 25.00lO(e). In addition to general statutory county courts, the Legislature established statutory probate courts, which havejurisdiction over probate matters and certain proceedings instituted under the Health and Safety Code. 

### Id. § 25.0021. Some but not all statutory county courts havejurisdiction over mental health proceedings under the Mental Health Code. 

### See TEX. HEALTH & SAFETY CODE § 574.008(a) (explaining that proceedings under the Mental Health Code mustbe held inthe county court withjurisdictionofa probate court in mental illness matters). "Ina county inwhichthere i$ a statutoryprobate court, the statutoryprobate court has exclusivejurisdiction ofall probate proceedings" and mental health proceedings. TEX. EST. CODE § 32.005(a); 

### see also 48B RobertP. Schuwerk& LillianB. Hardwick, 

### Texas Practice Series: Tex. Lawyer & 

### Judicial Ethics § 40.61 (2016 ed.) (explaining that statutory probate courts have exclusivejurisdiction over mental health commitments in the counties where such courts exist). Chapter 574 ofthe Health and Safety Code does not define "countyjudge." Giventhatthe term is capable ofmultiple meanings, we must construe the statute to effectuate the Legislature's intent. 

### See LibertyMut. Ins. Co. v. Adcock, 412 S.W.3d 492, 494 (Tex. 2013) (explaining that the "primary objective in construing a statute is to ascertain and give effect to the Legislature's intent"). In doing so, we must construe the words ofthe statute in the context ofits surrounding provisions. 

### In re Office of theAtt'yGen., 456 S.W.3d 153, 155-56 (Tex. 2015);

### Jaster v. Comet II

### The Honorable Nicholas "Nico" LaHood

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### Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014) ("While we must consider the specific statutory language at issue, we must do so while looking to the statute as a whole.").
Section 574.008 ofthe Health and Safety Codeprovides thatproceedings for court-ordered mental health services and post-commitment proceedings "must be held in the statutory or constitutional county court that has thejurisdiction ofa probate court in mental illness matters." TEX. HEALTH & 

### SAFETY CODE § 574.008(a). The next section, the one about which you ask, provides that the "county judge may appoint

... [an] associate judge to preside over the proceedings for court-ordered mental health services ifthe commissioners court of a county in which the 

### court has jurisdiction authorizes the employment of an associate judge." 

### Id. § 574.0085(a) (emphasis added). Reading the provisions as a whole, the "court" refers to the statutory or constitutional county court that hasjurisdiction ofmental illness matters, and "county judge"consequentlyrefers to thejudgeofthat court.2 

### Consistentwiththis construction, subsection (d) further provides that "[a ]n associatejudge who serves a single court serves 

### at the will of the judge of that court." Id.§ 574.0085(d) (emphasis added). Thus, read in the full context ofthese sections, a court would likely conclude that "countyjudge," as used in subsection 574.0085(a), refers to the statutory or constitutional county courtjudge withjurisdiction over mental illness matters. 3 

### Subchapter C, Chapter 54A ofthe Government Code, which relates to the appointment of statutory probate court associatejudges, supports this construction. That subchapter authorizes

2You direct us to In re L.L., 821 S.W.2d 247 (Tex. App.-San Antonio 1991, writ denied), and suggest the court in that case construed the term "countyjudge" as the constitutional county courtjudge and that we should do likewise. In re L.L. involved the predecessor statute to subsection 574.008(b), which at the time stated: Where a proceeding is to be held in the county court under Section 40 ofthis code and the countyjudge ofthat court is not a licensed attorney, the person or his attorney may request that such proceeding be transferred to a court with a judge that is an attorney licensed to practice law in this state. The proceeding shall then be transferred by the countyjudge to such court and be heard as if originally filed in such court. Id. at 249. In re L.L. involved a request to transfer mental health proceedings from the constitutional county courtto a court with ajudge who was a licensed attorney, and you are correct that in that case the "countyjudge"transferring the case was the constitutional county courtjudge. Id. at 248. However, no language in the decision purports to construe the term "countyjudge" or suggests the phrase could not also be applied to statutory county courtjudges when appropriate.

3You suggest that because section 574.0085 "only contemplates a single party having the authority to appoint associatejudges," and because an associatejudge may serve more than onejudge, the phrase must refer to the single presiding officer ofthe commissioners court. Request Letter at 4. However, along with the possibility of serving multiple courts, an associatejudge may, in some instances, serve multiple counties. See TEX. HEALTH & SAFETY CODE§ 574.0085(c). In such instances, multiple countyjudges-regardless ofwhether that term refers to the presiding officer ofthe commissioners court or the presidingjudge ofthe court With jurisdiction over mental illness matters-will appointthe associatejudge. The fact thatthe Legislature chose to make the term "countyjudge" singular in section 574.0085(a) is therefore not dispositive to the question you raise. See TEX. Gov'T CODE § 311.012(b) (explaining that in construing words and phrases in a statute, "[t]he singular includes the plural and the plural includes the singular").

### The Honorable Nicholas "Nico" LaHood

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thejudge ofa statutory probate courtto appoint associatejudges to hear "any aspect ofa suit over whichthe probate court hasjurisdiction." TEX. Gov'T

### CODE§ 54A.207(a); 

### see also id.§ 54A.203. Significantto your question, an associatejudge appointed pursuant to subchapter C "may serve as an associatejudge appointed under Section 574.0085, Health and Safety Code."

### Id.§ 54A.203(e). Construing section 574.0085(a) to authorize thejudge ofthe constitutional county courtto appoint the associatejudge rather than thejudge ofthe statutory probate court, when one exists, would directly contradictthis provision. 

### See In re UnitedServs. Auto. Ass 'n, 307 S.W.3d 299, 311 (Tex. 2010) (directing courts to construe statutes to harmonize with other relevant laws whenever possible); 

### City of RoundRock v. Rodriguez, 399 S.W.3d 130, 137 (Tex. 2013) ("In construing a statute,

... we presume that the Legislature acted with knowledge ofthe background law[.]"). Rather, section 54A.203 further demonstrates the Legislature's intent to authorize thejudge with jurisdiction of a probate court over mental illness matters to appoint an associate judge under section 574.0085(a). 

### See TEX. Gov'T

### CODE § 54A.203.
The predecessor statutes to the current Mental Health Code also support this construction. Prior to its codification in the Health and Safety Code, the Mental Health Code expressly defined both county court and countyjudge: "The term 'county court' is used in this code to mean the 'probate court' or the court having probatejurisdiction, and the term 'countyjudge' means the judge ofsuch court."4 

### In 1991, the Legislature adopted "anonsubstantive revision ofthe statutes relatingto mentalhealth." 5 

### Whilethe Legislaturedidnotpreservethe express definitions ofcounty , court and countyjudge in the recodification, the statutes as revised do not change the meaning of those terms as historically used in relation to the Mental Health Code. 

### See id § 311.023(4) ("In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider

... former statutory provisions, including laws onthe same or similar subjects[.]").

4Act ofApr. 21, 1983, 68th Leg., R.S., ch. 47, § 1, sec. 10, 1983 Tex. Gen. Laws 211, 215-16, repealed by Act ofApr. 29, 1991, 72d Leg., R.S., ch. 76, § 19, 1991 Tex. Gen. Laws 515, 647.

5Act ofApr. 29, 1991, 72d Leg., R.S., ch. 76, § 1, 1991 Tex. Gen. Laws 515, 515.

### The Honorable Nicholas "Nico" LaHood

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### SUMMARY
A court would likely conclude that the statutory or constitutional county court judge with jurisdiction over mental illness matters has authority to appoint the associate judge under subsection 574.0085(a) ofthe Health and Safety Code.

JEFFREY C. MATEER First Assistant Attorney General
BRANTLEY STARR Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER Chair, Opinion Committee Very truly yours,

KEN PAXTON Attorney General ofTexas