    OFFICE OF THE ATTORNEYGENERAL. STATEOF TEXAS

    JOHN    CORNYN




                                           March 27,200l



The Honorable J. E. “Buster” Brown                   Opinion No. JC-0358
Chair, Natural Resources Committee
Texas State Senate                                   Re: Definition of “presiding magistrate” for
P.O. Box 12068                                       probable cause hearing pursuant to section
Austin, Texas 7871 l-2068                            574.025, Texas Health and Safety Code
                                                     (RQ-0296-JC)

Dear Senator Brown:

         You have asked this office to interpret section 574.025 of the Health and Safety Code.
Specifically, you have inquired as to the meaning of the phrase, “the presiding judge” in section
574.025(c). Reading that section inpari materia with the rest of subchapter B of chapter 574, we
conclude that the “presiding judge” who may, pursuant to section 574.025(c), appoint a master
before whom a probable cause hearing is to be heard is “[tlhe judge of the court in which the
application [for court-ordered mental health services] is pending.” TEX.HEALTH & SAFETY CODE
ANN. 4 574.02 1(e) (Vernon 1992). Thus, depending on the court in which such an action is pending
in Harris County, Texas, either the judge of Probate Court No. 3 or the judge of Probate Court No.
4 may be the “presiding judge” for the purpose of section 574.025(c).

        Chapter 574 of the Health and Safety Code is concerned with the provision of court-ordered
mental health services. Subchapter B is concerned with the procedures governing a motion that the
proposed patient be held in protective custody. One of the subchapter’s requirements is that a
probable cause hearing be held “not later than 72 hours after the time that the proposed patient was
detained under a protective custody order.” Id. $ 574.025(b) (Vernon Supp. 2001). This hearing
must be held to determine if:

                    (1) there is probable cause to believe that a proposed patient
                under a protective custody order presents a substantial risk of serious
                harm to himself or others to the extent that he cannot be at liberty
                pending the hearing on court-ordered mental health services; and

                    (2) a physician has stated his opinion and the detailed reasons for
                his opinion that the proposed patient is mentally ill.

Id. 6 574.025(a).
The Honorable J.E. “Buster” Brown          - Page 2        (JC-0358)




         Section 574.025(c), about which you inquire, reads in relevant part “The hearing shall be
before a magistrate or, at the discretion of the presiding judge, before a master appointed by the
presiding judge.” Id. 8 574.025(c).      It is the meaning of the phrase “presiding judge” in this
subsection with which you are concerned.

        We agree with the Harris County Attorney that the “presiding judge” for this purpose means
the judge in whose court the application for court-ordered mental health services is pending.*
Section 574.02 1(a) requires, “A motion for an order of protective custody may be filed only in the
court in which an application for court-ordered mental health services is pending.” Id. tj 574.02 1(a)
(Vernon 1992) (emphasis added). Section 574.02 l(e) provides that “The judge of the court in which
the application is pending may designate a magistrate to issue protective custody orders in the
judge’s absence.” Id. 8 574.021(e). We are instructed by section 3 11.021(2) of the Government
Code to construe a statute so that it is effective in its entirety. Accordingly, reading these provisions
and section 574.025(c) in pari materia, we conclude that “the presiding judge” is “the judge of the
court in which the application [for court-ordered mental health services] is pending.”

         As you note, “In Harris County, two statutory probate courts have responsibility for mental
illness proceedings, Probate Court No. 3 and Probate Court No. 4.” Request Letter, supra note 1,
at 1. Accordingly, the determination of who is the “presiding judge” for the purpose of any
particular probable cause hearing will depend on the court in which the application for court-ordered
mental health services is pending. If the application is pending is Probate Court No.3, then the judge
of that court is the presiding judge. If the application is pending is Probate Court No. 4, the judge
of that court is the presiding judge for the purpose of section 574.025(c).




          ‘Letter from Honorable J .E. “Buster” Brown, State Senator, to Honorable John Comyn, Attorney General
(Sept. 29,200O) (on file with Opinion Committee) [hereinafter Request Letter] (see correspondence attached).
The Honorable   J.E. “Buster” Brown   - Page 3      (JC-0358)




                                       SUMMARY

                    The “presiding judge” who may appoint a master in a probable
                cause hearing under section 574.025(c) of the Texas Health and
                Safety Code is the judge of the court in which an application for
                court-ordered mental health services is pending.

                                      Yo rsv     truly



                                   4~cfT
                                      JO&N     CORNYN
                                      Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee
