### NEY GENERAL, OF EXAS

Honorable Joe Resweber Opinion No. C-435 County Attorney Harris County Re: Sheriff's use of force in Houston, Texas apprehendingmentally 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 requestedan opinion of this office on the three following questions relating to the degree of force that may be employed in apprehendingmentally ill persona under the above captioned statutes:

"1. Do the standardsgoverning 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 deputieshave If they are attackedby the allegedlymentally 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 thementally ill and to facilitate their hospltalization, enabling them to obtain needed care, treatment and rehabilitationwith 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'smental health of public trialHonorable Joe Resweber,page 2 

### (C-435)

and criminal-likeprocedures,and at the same time to protect the rights and liberty of every one. In providing care and treatment for thementally ill, the State acts to protect the community from harm and to serve the public interestby removing the social and economicburden of thementally ill on society and the burden and disturbing effect of thementally ill person on the family, and by care and treatment in a mental hospital to restorehim to a useful life and place in society. It is also the legislativepurpose 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 thementally Ill as patients and not as criminals. The Legislature of this State expressed deep concern for the welfare of ourmentally Ill and throughout the provisions of this Code attempted in everypossible way to remove all criminal connotationsor social stigma which might attach to the care and handling of these unfortunates. However, the Legislature recognized that there were specific situationswhich requiredprompt attention In order to protect thementally ill as well as the generalpublic. For this reasonprovisionswere made for emergencywarrantsin Article 5547-27,Vernon's Civil Statutes,and orders of protective custody in Article 

### 5547-66, VernonIs Civil Statutes. Article 5547-27provides: "Anyhealth or peace officer,who has reason to believe and does believe upon the representationof a credibleperson, in writing, or upon the basis of the conduct of a person or the circumstancesunder which he is found that the person Ismentally 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 anymagistrate, take such person into custody, and immediatelytransport him to the nearest hospital andmake application for his admission,pursuant to

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### page3 (C-435)

thewarrantof themagistrate. Such person admitted upon such warrantmay be detained in custody for a period not to exceed twentyfour (24)hours, unless a furtherwritten 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 legalholiday, then the twenty-four-hourperiod allowed for obtaining the court orderpermitting further detention shall begin at 9:OO o'ulock a.m. on the first succeedingbusiness day." Article 

### 5547-66

provides:
"If in the county court in which an application for TemporaryHospitalizationor a Petition for Indefinite Commitment Is pending, aCertificate 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 Certificateand stating the opinion of the examiningphysician that the proposedpatient Is mentally ill and because of his mental illness is likely to cause injury to himself or~otheraIf not Immediatelyrestrained, the judgemay order any health or peace officer to take the proposed patient Into protective custody and Immediately transporthim to a designatedmental hospltal or other suitableplace and detain him pending order of the court." The long established common law rule is that a person actually Insanemay be arrested and detained,without a warrant or l,egal

process first issuing,when an arrest is necessary to prevent Immediatebodily injury to thementally ill person or another,and any 'personapprehendinga mentally ill person acted at his peril based upon the apprehendedperson's actual lnsaniSee Loving v. Hazelwood, 

### 184S.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

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In Davis v. Merrill, trespass for assault and false supra, an actionwas brought for imprisonment. The court held that the defendants,members of the Board of Selectmen,who assisted in the apprehension of the plaintiffwere absolved of any liability andmade this comment relating to the force used in apprehending the plaintiff:

"TheDefendants are found to have acted in good faith, and not to have used unnecessary force. They can not, therefore,be considered as trespassersor wrong-doers."Also see requested charge In Look v. Deen, 

### 108 mss. 

### 116 (1861).
A father suedhis son In Maxwell v. Maxwell, 

### 189 Iowa 

### 7, 177N.W. 

### 541 (1920), for false arrest and imprisonment and the proof establishedthat the son caused the sheriff to take his father into custodybecause, as the son contended, his father'smental conditionmade It unsafe for him to remain at large. The court stated:

"If the plaintiffwas, at the time he was restrained,of unsoundmind, 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 restraintnecessary to protecthim from injury, or if by reason of hismental 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 sustainedwould be justified,under the law, in placing him under such restraintas was reasonablynecessary to protect him against himself and the public from the dangers incident to his condition." (Emphasisadded.)
It is the opinion of this office that In apprehendingmentally ill persons, the degree of force which may be used, whether it be at common law or pursuant to a warrant, would be that forcewhich Is reasonablynecessaryunder the circumstance to protect thementally ill person and the generalpublic with the officermaking the apprehensionbearing inmind that the person being restrainedhas not committed any act against the

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Honorable Joe Resweb:er, page 

### 5 (C-435)

l,a.ws o,four 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 reasonablynecessary under the circumstance8, taking into account the u.rgency and' nec,essity

of each situation, to protaot thementally ill person from himself or in order to protectmembers~~.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,angertomthe mentally ill person or anothe,r.

Your third question relates to what proteotion offleers have if they are attacked by the allegedlymentally ill person during an attempted arrest.

It 1s~our opinion that the officerha8 th,e rfght of self defense in this situation,as in any other arrest, to use whatever force,is reasonablynecessary 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 thementally 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 AttorneyGeneral 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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