    OFFICE   OF THE   ATTORKEY   GENERAL   . STATE   OF   TEXAS

   JOHN      CORNYN




                                                      June 5,200l



The Honorable Juan J. Hinojosa                                    Opinion No. JC-0387
Chair, Committee on Criminal Jurisprudence
Texas House of Representatives                                    Re: Whether section 573 .012 of the Health
P.O. Box 2910                                                     and Safety Code authorizes a municipal peace
Austin, Texas 78768-2910                                          officer to execute an emergency-detention
                                                                  warrant (RQ-0345-JC)

Dear Representative        Hinojosa:

         You ask whether section 573 .O12 of the Health and Safety Code authorizes a municipal peace
officer to execute an emergency-detention    warrant. We conclude that a municipal or county peace
officer may execute an emergency-detention      warrant under that provision.

         Chapter 573 of the Health and Safety Code provides for the emergency detention of a person
who appears to be mentally ill and a risk to himself or others. See TEX. HEALTH & SAFETY CODE
ANN. ch. 573 (Vernon 1992 & Supp. 2001). Subchapter A authorizes apeace officer to take aperson
into custody without a warrant in certain circumstances.            Upon doing so, the officer must
immediately file an application for emergency detention. See id. 88 573.001, .002 (Vernon 1992).
Subchapter B provides a mechanism for any other adult to file a written application for the
emergency detention of another person, see id. 5 573.011, which must be reviewed by a judge or
magistrate. See id. 5 573.012(a) (Vernon Supp. 2001). Section 573.012 provides that themagistrate
must deny the application unless there is reasonable cause to believe that the person evidences
mental illness and that there is a substantial risk the person may do serious harm to himself or others
unless the person is immediately restrained, and “the necessary restraint cannot be accomplished
without emergency detention.” Id. 5 573.012(b). Subsection (d) of section 573.012, the provision
at issue in your request, provides that the magistrate “shall issue to an on-duty peace officer a
warrant for the person’s immediate apprehension” if the magistrate determines that the person
satisfies the statutory criteria. See id. 4 573.012(d).       A person who is apprehended under an
emergency-detention    warrant must be transported to the nearest inpatient mental health facility, or
other facility deemed appropriate by the county’s mental health authority, for a preliminary
examination. See id. 9 573.012(e).

        Once a person who has been apprehended arrives at the facility, a physician must examine
the person within certain time limits, and the person may be admitted to the facility only if the
examining physician makes certain findings regarding the patient’s mental health.         See id.
@ 573.021 (Vernon 1992), 573.022 (Vernon Supp. 2001). Under section 573.022, a county mental
The Honorable    Juan J. Hinojosa    - Page 2       (JC-0387)




health facility that has admitted a person for emergency detention under this section may transport
the person to a facility of the single portal authority for the area; an appropriate inpatient mental
health facility, if no single portal authority serves the area; or a facility deemed suitable by the
county’s mental health authority, if no single portal authority serves the area and an appropriate
inpatient mental health facility is not available. See id. 9 573.022(b) (Vernon Supp. 2001).

         You ask about the proper construction of subsection (d) of section 573.012, which provides
that, upon determining that a person meets the statutory criteria for emergency detention, “[tlhe
magistrate shall issue to an on-duty peace officer a warrant for the person’s immediate
apprehension.” Id. 8 573.012(d). You indicate that some officials in Hidalgo County interpret this
provision to authorize only county peace officers to execute these warrants.’ You ask, in essence,
whether municipal peace officers may also execute an emergency-detention       warrant issued under
section 573.012. We conclude that a municipal peace officer may execute such a warrant.

          When construing a statute, “our primary objective is to give effect to the Legislature’s
intent .” Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436,438 (Tex. 1997). To give effect to
legislative intent, we construe a statute according to its plain language. See RepubZicBank Dallas
v. Interkal, Inc., 691 S.W.2d 605,607-08 (Tex. 1985); Bouldin v. Bexar County Sher@‘s Civil Serv.
Comm ‘n, 12 S.W.3d 527,529 (Tex. App.-San Antonio 1999, no pet.). Statutory words and phrases
must be “read in context and construed according to the rules of grammar and common usage,” but
those words and phrases “that have acquired a technical or particular meaning, whether by legislative
definition or otherwise, shall be construed accordingly.” TEX.GOV’T CODE ANN. 0 3 11 .Ol 1 (Vernon
1998). Subsection (d) of section 573.012 uses the general term “peace officer,” which is broadly
defined in the Code of Criminal Procedure to include both county and municipal officers, among
others. See TEX. CODE CRIM. PROC. ANN. art. 2.12 (Vernon Supp. 2001) (including within the
definition of “peace officer” sheriffs and their deputies, constable and deputy constables, and
municipal police officers).     Because subsection (d) of section 573.012 does not on its face
distinguish between county and municipal peace officers for purposes of executing emergency-
detention warrants, we think the statute uses the phrase “peace officer” consistently with the Code
of Criminal Procedure definition.

          Furthermore, subchapter A, which provides for emergency detention without a warrant,
clearly authorizes any type of peace officer to detain within the officer’s jurisdiction a person who
evidences mental illness without a warrant on an emergency basis. See TEX. HEALTH & SAFETY
CODEANN. 8 573.001(a) (Vernon 1992) (“Apeace officer, without a warrant, may take a person into
custody if the officer . . .“) (emphasis added). A primary rule of statutory construction is that
legislative enactments involving the same general subject matter and possessing the same general
purpose are considered to be and are construed inpari materia. See Garrett v. Mercantile Nat ‘I
Bank, 168 S.W.2d 636,637 (Tex. 1943); see also Calvert v. Fort Worth Nat’1 Bank, 356 S.W.2d
918, 921 (Tex. 1962). We thus read subchapter B, in which subsection (d) of section 573.012


         ‘Letter from Honorable Juan J. Hinojosa, Texas State Representative, to Honorable John Cornyn, Texas
Attorney General at 2 (Feb. 1,200l) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable     Juan J. Hinojosa     - Page 3       (~~-0387)




appears, together with subchapter A. Given that the legislature has authorized both municipal and
county peace officers to take a person into custody without a warrant in subchapter A, we do not
believe it would have intended to distinguish between county and municipal peace officers in
subchapter B for purposes of executing emergency-detention     warrants.

          In your request letter, you explain the basis of the Hidalgo County officials’ interpretation
of the statute to prohibit municipal peace officers from executing these warrants. You suggest that
there is now some concern that only a county peace officer may execute an emergency-detention
warrant due to 1999 legislative amendments to chapter 573 and related provisions in chapter 574,2
the latter of which establishes a framework for court-ordered mental health services - civil
commitment.      Section 573.025, which was substantially amended in 1999,3 provides that a person
apprehended or detained under chapter 573 “has the right . . . to be transported in accordance with
Sections 573.026 and 574.045, if the person is detained under section 573.022 or transported
under an order of protective custody under Section 574.023.” TEX. HEALTH& SAFETYCODE ANN.
fj 573.025(a)(6) (V emon Supp. 2001). Section 573.026, added to chapter 573 in the same
legislatidn,4 provides that a person “being transported after detention under Section 573.022 shall
be transported in accordance with Section 574.045.” Id. 6 573.026. Section 574.045 provides that
a court may authorize the transportation of a committed patient or a patient who has been detained
under section 573.022 to the designated mental health facility by a family member or fiend, various
civil officials, or if no other person is available, the sheriff or constable.     See id. tj 574.045.
Significantly, section 574.045 does not include municipal peace officers in this list.

         You inform us that certain officials interpret the references in sections 573.025 and 573.026
to section 574.045 to give “[an] apprehended person the right to have no other peace officer but the
sheriff or constable transport the person.” Request Letter, supra note 1, at 2. As a result, these
officials “have now required that all mental health commitment warrants issued by the county courts
at law and all justices of the peace be executed by the Hidalgo County Sheriffs Department, rather
than the local police department where the subject is thought to be located.” Id.

          We conclude that this construction of section 573.012, subsection (d) based on sections
573.025 and 573.026 is misplaced. Neither of these provisions pertains to the authority to execute
an emergency-detention        warrant or to transport a person who is apprehended on such a warrant to
the initial facility for preliminary examination. Section 573.025 gives a person who is apprehended
or detained the right to be transported in accordance with section 574.045 “if the person is detained
under Section 573.022.” TEX.HEALTH&SAFEIYCODEANN. 8 573.025(a)(6) (Vernon Supp. 2001).
Similarly, section 573.026 provides that “[a] person being transported after detention under Section



        2See Tex. S.B. 539,76th Leg., R.S. (1999), enactedas      Act of May 28, 1999,76th   Leg., R.S., ch. 1512, 1999
Tex. Gen. Laws 5233,5234.

        3See Act of May 28,1999,76th    Leg., R.S., ch. 15 12, $2, 1999 Tex. Gen. Laws 5233,5234.

        4See id. 6 3.
The Honorable   Juan J. Hinojosa   - Page 4      (JC-0387)




573.022 shall be transported in accordance with Section 574.045.” Id. 0 573.026. Pursuant to
section 573.022, however, a person is detained only after a physician has made certain findings in
a preliminary examination.    See id. 0 573.022(a) (“A person may be admitted to a facility for
emergency detention only if the physician who conducted the preliminary examination of the person
makes a written statement that: . . .“). Thus, the right under sections 573.025 and 573.026 to be
transported in accordance with section 574.045 does not arise until after a preliminary examination.

         Section 573.025 also gives a person the right to be “transported under an order of protective
custody under Section 574.023.” Id. 0 573.025(a)(6).         Like section 573.026, section 574.023
pertains to the transportation of a person after he or she is initially apprehended on a emergency-
detention warrant and is not relevant to a person’s initial apprehension.         Again, chapter 574
establishes procedures for court-ordered mental health services. See id. ch. 574 (Vernon 1992 &
Supp. 200 1). Pending a hearing on an application for court-ordered mental health services, a person
may be held in protective custody. See id. ch. 574, subch. B. Section 574.023 provides for
protective custody orders directing a person authorized to transport a person under section 574.045
to take a proposed patient into protective custody and transport the person to a facility. See id.
8 573.023. Thus the right under section 573.025 “to be transported in accordance with Sections
573.026 and 574.045, if the person is . . . transported under an order of protective custody under
Section 574.023,” id. 0 573.025(a)(6), also does not arise until after a person’s initial apprehension
and preliminary examination.

          Finally, we note that the legislative history of the 1999 amendments to these provisions
regarding the transportation of detained persons and persons under protective custody is not to the
contrary. The bill analyses suggest that the purpose of the legislation was to address problems in
the transportation of persons from county facilities and courts to portal facilities and that it was not
intended to address the initial apprehension and transportation of persons pursuant to emergency-
detention warrants. See Tex. S.B. 539, supra note 2; SENATECOMM. ON HEALTH Svcs., HOUSE
COMM. ON PUBLIC HEALTH,BILL ANALYSES, Tex. S.B. 539,76th Leg., R.S. (1999) (bill addresses
problem of “mentally ill patients being transported from county jails and courts to state mental health
facilities; apparently, many of these patients were spending long periods of time on buses making
circular routes; being transported in buses without air-conditioning or heating; and being deprived
of sufficient bathroom stops”).

          In sum, we conclude that section 573.012 of the Health and Safety Code authorizes a
municipal peace officer to execute an emergency-detention   warrant and to transport the person to
a facility for preliminary examination. See TEX. HEALTH& SAFETYCODE ANN. 8 573.012(d), (e)
(Vernon Supp. 2001). A county peace officer may also execute such a warrant. A person who is
actually admitted to a facility for emergency detention after a preliminary examination must be
transported in accordance with section 574.045. See id. $9 573.025, .026.
The Honorable Juan J. Hinojosa     - Page 5    (JC-0387)




                                       SUMMARY

                        Section 573.012 of the Texas Health and Safety Code
               authorizes a municipal or county peace officer to execute an
               emergency-detention      warrant. See TEX. HEALTH & SAFETY CODE
               ANN. 9 573.012(d) (V emon Supp. 2001). A person who is actually
               admitted to a facility for emergency detention after a preliminary
               examinationmust     be transported in accordance with section 574.045.
               See id. $0 573.025, .026.




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee
