Honorable James E. Barlow          Opinion No. M-432
Criminal District Attorney
Bexar County Courthouse           Re:   Authority and responsibility
San Antonio, Texas '78204               of heads of mental hospitals
                                        with regard to return of
                                        patj~entsabsent 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 Hospi-
tals, 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 ab-
       sent 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 sub-
division (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 per-
        son has symptoms of mental illness and will
        benefit from hospitalization." (Emphasls supplied)
   Entirely different and more stringent requirements apply to in-
voluntary 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 7- 1 et seq., and the indefinite commitment procedure
of Article 5547-
             E ;10, 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 the protection or
aers   he requires such detention .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 hospitalization provisions; and Article
                55
5547-22 through ---v=z?  set out the terms and procedures of such vol-
untary hospitalization, including provisions as to admission, advis-
ing 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 be-
        cause 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 pa-
        tient is mentally 1~11and 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., pro-
                viding for the summary return of patients, absent
                without consent, to the mental hospitals is not
                applicable to persons who have so absented them-
                selves 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-
