NEY GENERAL, 

OF EXAS 

Honorable Joe Resweber Opinion No. C-435 

County Attorney 

Harris County Re: Sheriff's use of force in 

Houston, Texas apprehending mentally ill 

persons under the Rnergency 

Warrant Procedure of Artlcle 5547-27, V.C.S., and 

under an Order of Protective 

Custody under Article 5547- 

Dear Mr. Resweber: 66, V.C.S. 

You have requested an opinion of this office on the 

three following questions relating to the degree of force that 

may be employed in apprehending mentally ill persona under the 

above captioned statutes: 

"1. Do the standards governing the use 

of force in a criminal arrest apply? 

“2. Are the deputies authorized to break 

down a door of a private residence to take a 

patient? 

"3. What protection do the deputies have 

If they are attacked by the allegedly mentally ill person while attempting to take such 

person into custody?" 

The purpose of the Mental Health Code Is set out in 

Article 5547-2, Vernon's Civil Statutes, as follows: 

"It is the purpose of this Code to provide humane care and treatment for the mentally ill and to facilitate their hospltalization, enabling them to obtain needed care, 

treatment and rehabilitation with the least 

possible trouble, expense and embarrassment 

to themselves and thelr families and to eliminate so far as possible the traumatic effect 

on the patient's mental health of public trial 
Honorable Joe Resweber, page 2 (C-435) 

and criminal-like procedures, and at the 

same time to protect the rights and liberty of every one. In providing care and 

treatment for the mentally ill, the State 

acts to protect the community from harm and 

to serve the public interest by removing 

the social and economic burden of the mentally ill on society and the burden and disturbing effect of the mentally ill person on 

the family, and by care and treatment in a 

mental hospital to restore him to a useful 

life and place in society. It is also the 

legislative purpose that Texas contribute 

its share to the nation-wide effort through 

care, treatment and research to reduce the 

prevalence of mental illness." 

The intent of the Legislature in enacting this Code 

was to provide for the treatment of the mentally Ill as patients and not as criminals. The Legislature of this State 

expressed deep concern for the welfare of our mentally Ill and 

throughout the provisions of this Code attempted in every possible way to remove all criminal connotations or social stigma 

which might attach to the care and handling of these unfortunates. However, the Legislature recognized that there were 

specific situations which required prompt attention In order 

to protect the mentally ill as well as the general public. For 

this reason provisions were made for emergency warrantsin 

Article 5547-27, Vernon's Civil Statutes, and orders of protective custody in Article 5547-66, VernonIs Civil Statutes. 

Article 5547-27 provides: 

"Any health or peace officer, who has 

reason to believe and does believe upon the 

representation of a credible person, in 

writing, or upon the basis of the conduct 

of a person or the circumstances under which 

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 

immediately restrained, may upon obtaining 

a warrant from any magistrate, take such 

person into custody, and immediately transport him to the nearest hospital and make 

application for his admission, pursuant to 

-2059- 
Joe Resweber, page 3 (C-435) 

thewarrantof the magistrate. Such person 

admitted upon such warrant may be detained 

in custody for a period not to exceed twentyfour (24) hours, unless a further written 

order is obtained from the County Court or 

Probate Court of such county ordering further detentlon. Provided, however, that 

should the person be taken Into custody on 

a Saturday or Sunday, or a legal holiday, 

then the twenty-four-hour period allowed for 

obtaining the court order permitting further 

detention shall begin at 9:OO o'ulock a.m. 

on the first succeeding business day." 

Article 5547-66 provides: 

"If in the county court in which an application for Temporary Hospitalization or 

a Petition for Indefinite Commitment Is 

pending, a Certificate of Medical Esamlnai-ion for Nental 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 ~othera If not Immediately restrained, the judge may order any health or 

peace officer to take the proposed patient 

Into protective custody and Immediately 

transport him to a designated mental hospltal or other suitable place and detain him 

pending order of the court." 

The long established common law rule is that a person 

actually Insane may be arrested and detained, without a warrant 

or l,egal process first issuing, when an arrest is necessary to 

prevent Immediate bodily injury to the mentally ill person or 

another,and any 'person apprehending a mentally ill person acted 

at his peril based upon the apprehended person's actual lnsaniSee Loving v. Hazelwood, 184 S.W. 355 (Tex.Clv.App.' 1916 

error ref.), In Re Allen, n A. 1078 see also Porter 

v. Ritch, 70 Corm. ;ij3 

(1909), 

39 A. 169 (1898) 

(1842), Appeal of Sleeper, 147 

Davis v. Herrill, m. Rep 

-2060- 
Honorable Joe Resweber, page 4 

In Davis v. Merrill, 

trespass for assault and false 

supra, an action was brought for 

imprisonment. The court held 

that the defendants, members of the Board of Selectmen, who 

assisted in the apprehension of the plaintiff were absolved 

of any liability and made this comment relating to the force 

used in apprehending the plaintiff: 

"The Defendants are found to have acted 

in good faith, and not to have used unnecessary force. They can not, therefore, be considered as trespassers or wrong-doers." Also 

see requested charge In Look v. Deen, 108 

mss. 116 (1861). 

A father sued his son In Maxwell v. Maxwell, 189 

Iowa 7, 177 N.W. 541 (1920), for false arrest and imprisonment 

and the proof established that the son caused the sheriff to 

take his father into custody because, as the son contended, 

his father's mental condition made It unsafe for him to remain at large. The court stated: 

"If the plaintiff was, at the time he 

was restrained, of unsound mind, and by 

reason thereof incapable of caring for himself and Incapable of exercising rational 

self-control, and this condition of mind imperiled his own safety and rendered reasonable restraint necessary to protect him from 

injury, or if by reason of his mental condltion he was Incapable of exercising rational 

self-control, and the lack of such power imperiled the safety of others, then on sustaining the relationship to him which this defendant sustained would be justified, under the 

law, in placing him under such restraint as 

was reasonably necessary to protect him against 

himself and the public from the dangers incident to his condition." (Emphasis added.) 

It is the opinion of this office that In apprehending mentally ill persons, the degree of force which may be used, 

whether it be at common law or pursuant to a warrant, would be 

that force which Is reasonably necessary under the circumstance 

to protect the mentally ill person and the general public with 

the officer making the apprehension bearing in mind that the 

person being restrained has not committed any act against the 

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. .- 

Honorable Joe Resweb:er, page 5 (C-435) 

l,a.ws o,f our society and such restraint is. being imposed upon 

such permn th.rough, no fault of his own. 

With reference to your second question a health or 

peace officer does have the authority to bre,ak down a door of 

a private residence to apprehend a mentally Ill person when 

St is reasonably necessary under the circumstance8, taking into 

account the u.rgency and' nec,essity of each situation, to protaot the mentally ill person from himself or in order to protect members~~.of the public. While it is true that our statutes 

only authorize peace officers to break down a door of private 

residences in a felony case, it is important to note the arrest and detention of a mentally ill person is based upon hia 

inability to care for himself, as well as for the protection 

of others when there exists a clear and present d,anger tom the 

mentally ill person or anothe,r. 

Your third question relates to what proteotion offleers have if they are attacked by the allegedly mentally ill 

person during an attempted arrest. 

It 1s~ our opinion that the officer ha8 th,e rfght of 

self defense in this situation, as in any other arrest, to 

use whatever force, is reasonably necessary to protect himself. 

Article ll&, V.P.C. 

SUMMARY 

In the, apprehension of a mentally 311 

person the standard governing t,he use of 

force, is that force which is reasonably 

necessary under the circumstances to protect the mentally ill person and the~,general public. The authority of such officers 

to break down the door of a private residence is governed by the same test. taking 

into account the urgency and necaesity of 

each situation. The officers have the 

right of self defense if attacked by the 

mentally ill person. 

Yaurs very truly, 

WAGGCNER CARR 

Attorney General of Texas 

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--. 

Honorable Joe Resweber, page 6 (C-435) 

Assistant Attorney General 

RWN/lh/br 

APPROVED: 

OPINION COMMITTEE: 

W. V. Geppert, Chairman 

Milton Richardson 

Edward R. Moffett 

Grady Chandler 

John Banks 

APPROVED FOR TIiE ATTORNEY GENERAL 

BY: Stanton Stone 

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