Honorable James E. Barlow Opinion No. M-432 

Criminal District Attorney 

Bexar County Courthouse Re: 

San Antonio, Texas '78204 

Authority and responsibility 

of heads of mental hospitals 

with regard to return of 

patj~ents absent without 

authority from detention on 

Dear Mr. Barlow: voluntary commitment. 

In your request for opinion of this office you state that, "A 

question, mutual to Peace Officers and Heads of Private Mental Hospitals, has been raised by both factions regarding their respective 

authorities, legal obligations, and/or responsibilities under the 

Mental Health Code in the area of voluntarily committed patients in 

Private Mental Hospitals;" and, in particular, you question the, 

"legality of actions taken by both Heads of Private Mental Hospitals 

and Peace Officers under authority of V.A.T.S., Art. 5547-72, in cases 

of escaped or awol voluntarily committed patients from Private Mental 

Hospitals." 

Article 55'17-72, Vernon's Civil Statutes, provides as follows: 

"(a) The head of a mental hospital shall initiate 

action to regain custody of any patient who is absent without authority. 

"(b) It is the duty of any health or peace officer 

to take into protective custody and detain any 

such patient and to report the same to the head 

of the mental hospital or to, the county judge and 

upon the order of either to transport the patient 

back to the mental hospital." 

It is apparent that Article 5547-72 provides a means for a return 

to the mental hospital of those patients who have absented themselves 

therefrom without consent; the only question is as to whether subdivision (b) thereof applies to the patient who has voluntarily 

committed himself, to the extent that he may be detained and returned 

to the hospital without further proceedings under the Mental Health 

Code. 

-2153- 
Honorable James E. Barlow, page 2 (M-432) 

Article 5547-22, V.C.S., provides as follows: 

"The head of a mental hospital may admit as a 

voluntary patient any person for whom a proper 

application is filed, if he determines upon the 

basis of preliminary examination that the person has symptoms of mental illness and will 

benefit from hospitalization." (Emphasls supplied) 

Entirely different and more stringent requirements apply to involuntary hospitalization. These requirements are set out under the 

emergency admission proceedure of Article 5547-27, et seq.; the 

temporary hos italization for observation and/or treatment procedure 

of Article 55 

E ;1 

7- 1 et seq., 

of Article 5547- 

and the indefinite commitment procedure 

0, et seq.; and each spell out a requirement for 

allegation, and court determination, that the patient is mentally 

ill and that for his own welfare and protection of th 

aers he requires such d 

e protection or 

etention .and/or treatment. 

As stated before, Article 5547-22 authorizes the head of a mental 

hospital to admit a voluntary patient under the circumstances there 

set out. Article 5547-68 authorizes the head of such mental hospital 

to admit and detain any patient in accordance with the procedures 

provided by the voluntar 

5547-22 through ---v=z? 55 

hospitalization provisions; and Article 

set out the terms and procedures of such voluntary hospitalization, including provisions as to admission, advising patients of their rights, spelling out the right of release of 

such patient and the fact that no other sort of commitment shall be 

sought for a voluntary patient unless a request for his release has 

been filed, but makes no provision for apprehension or return to the 

hospital of such patient. 

In accordance with the provisions for a voluntary commitment, the 

head of a mental hospital may admit such patient and is free from 

liability for detaining such patient by reason of the contractual 

arrangement therein provided and by reason of Article 5547-18 which 

exempts all persons acting in good faith, reasonably and without 

negligence, from all liability, civil or criminal, incident to the 

actions therein enumerated. 

However, once a patient absents himself without consent from such 

mental hospital he is no longer a voluntary patient and although he 

may have, in so doing, breached the terms of his agreement, he is in 

fact, no longer under a voluntary commitment; and until be changes 

his mind, any return of him to such hospital would be involuntary and 

as such must be effected under the terms of an involuntary commitment. 

Article 1, Sec. 19 of the Texas Constitution, provides that: )' NO 

citizen of this state shall be deprived of life, liberty, property, 

. . . ) except by due course of the law of the land." Up to the time 

in question such patient has had no access to a court of,law, much 

less "due course of law" and although a voluntary commitment protects 

those detaining such person when he is in their custody it does not 

-2154- 
. . 

Honorable James E. Barlow, page 3 (M-432) 

purport to be a "due process" procedure and until a person has been 

committed in accordance with the statutes and the Constitution 

(Article 1, Sees. 15 and 15-a), he is a free person with all his 

civil rights. 

It is the opinion of this office that the provisions for summary 

return of patients to mental hospitals, provided under Article 

5547-72 (b) do not apply to persons who,have absented themselves 

without consent from a voluntary commitment to a mental hospital 

without further proceedings under the Mental Health Code. 

If the condition of a patient who has so absented himself without 

consent from a voluntary commitment is such that the head of the 

mental hospital cr.other appropriate health officer has reason to 

believe and does believe that ,the patient is mentally ill and because thereof he is likely to cause injury to himself or others if 

not immediately restrained, then and in that event Article 5547-72 

directs that such official shall initiate action to regain custody 

of such patient. The proper action in that case, if such patient 

shows no intention of,voluntarily returning to the hospital, would 

be the procedure set out under Article 5547-27, et seq., pertaining 

to emergency admission for involuntary hospitalization. If the 

head of the mental hospital or appropriate health officer does not 

believe such urgency in time exists, but does believe that the patient is mentally 1~11 and that for his own welfare and protection 

or the protection of others the patient requires observation and/or 

treatment in a mental hospital, and that such patient is not charged 

with a criminal offense, then and in that event such head of the 

mental hospital or appropriate health officer should initiate action 

for the patient's involuntary commitment under the provisions of 

Article 5547-31, et seq., providing for temporary hospitalization 

for observation and/or treatment. 

SUMMARY 

The provision of Article 5547-72 (b), V.C.S., providing for the summary return of patients, absent 

without consent, to the mental hospitals is not 

applicable to persons who have so absented themselves from a voluntary commitment. 

-2155- 
. . 

Honorable James E. Barlow, page 4 (M-432) 

Prepared by Harold G. Kennedy 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns B. Taylor, Chairman 

George Kelton, Vice-Chairman 

John Banks 

Bill Allen 

Roland Allen 

Louis Neumann 

Hawthorne Phillips 

Executive Assistant 

-2156-