MARK WHITE 

Attorney General 

The Attorney General of Texas 

May 21, 1980 

Honorable John J. Kavanagh, MD 

Commissioner 

Texas Department of MHMR 

Box 12668, Capitol Station 

Austin, Texas 78711 

Opinion No. NIV-180 

Re: Voluntary admission of 

minors to mental hospitals. 

Dear Dr. Kavanagh: 

You have requested our opinion regarding the voluntary admission of 

minors to mental hospitals. 

Article 5547, V.T.C.S., provides, in pertinent part: 

The application for admission of a person to a mental 

hospital as a voluntary patient: 

(a) Shall be in ~writing and signed by the voluntary 

patient if he is legally of age or by his parent, legal 

guardian, or the county judge, with his consent, if he 

is not legally of age. 

The Department of Mental Health & Mental Retardation has for many years 

interpreted this provision to require the consent of a minor for voluntary 

admission. See also Rosenthal, Interpretation of the Mental Health Code 

(5th ed. 1976)mou ask whether it can be construed so as to require the 

minor’s consent only when he is admitted upon application of the county 

judge. 

Since the language of the statute is ambiguous, the lon@anding 

construction placed upon it by the Department is entitled to substantial 

weight. Cm 427 S.W.2d 605, 608 (Tex. 1968); Heaton v. 

Bristol, 317 S.W.Zd 86, 95 (Tex. Civ. App. - Waco 19581, cert. denied, 359 

U.S. 230 0959); Associated Indemnity Corp. v. Oil Well Drilling Co. 258 

S.W.%d 523, 529 (Tex. Civ. App. - Dallas 19531, aff’d, 264 S.W.2d 697 Tex. 

1954). The legislature, which must be presumednave been aware of the 

Department’s interpretation, has not amended the statute since 1957. Under 

these circumstances, we believe that the Department of Mental Health & 

Mental Retardation should continue to require the consent of a minor for 

voluntary admission to a facility of the Department. 

P. 572 
Honorable John J. Kavanagh, M.D. - Page Two (NW-180) 

You also ask whether there is an age below which a person cannot give consent under 

article 5547-23, V.T.C.S. The statute itself imposes no minimum age, and, were we to 

hold that the age of consent is the same as for purposes of contract, no minor could ever 

be admitted to a mental hospital as a voluntary patient, and part of the statute would be 

rendered meaningless. It seems likely that the legislature did not here intend to impose 

the technical meaning of contractual consent. See Austin v. Collins, 200 S.W.2d 666 (Tex. 

Civ. App. - Fort Worth 1947, writ ref’d n.r.e.1. x minimum age can be inferred from the 

statute. We believe the professionals at the hospital must make a determination, just as 

they do with adults, whether the child has sufficient competency and maturity to give 

effective consent. If the professionals are not convinced that the particular child has the 

ability to give consent, they should seek an involuntary commitment throlrgh the courts. 

The statute does not require that the minor’s consent be in writing, however. The 

application must be in writing and it must be si 

+=- 

ed by the minor’s parent a legal 

guardian or by the county judge. The minor’s in ormed consent must be obtained, but 

there is nothing in the statute to require that such consent be given in writing. 

Finally, you ask about the effect of Parham v. J.R., 61 L.Ed.2d 101 (l979), on the 

Department’s voluntary admissions policy. In Parham, s_~lpra, the Supreme Court upheld a 

Georgia statute which permitted a child to be admitted to a state mental health care 

facility without his consent, upon the application of his parents. The court based its 

decision upon the “traditional presumption that the parents act in the best interests of 

their child,” and found the Georgia procedure acceptable, so long as a physician% 

“independent examination and medical judgment” is interposed in the process. 

Clearly, the Supreme Court in Parham w was considering cmly the minimum 

constitutional standards required for the admissmn of a minor to a mental health care 

facility. Since the Department of Mental Health & Mental Retardation has long construed 

article 5547..23, V.T.C.S., to require a stricter standard - the consent of the minor as 

well as that of his parents - Parham has little relevance for the Texas admissions 

procedure. 

SUMMARY 

A minor may be admitted to a mental hospital as a voluntary 

patient only with his informed consent. 

gii$gQdf 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

P. 573 
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Honorable John J. Kavanagh, M.D. - Page Three (NW-180) 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMlTTEE 

C. Robert Heath, Chairman 

Susan Garrison 

Rick Gilpin 

Bruce Youngblood 

P. 574