                     MsrchlO, 1976



The Honorable Joe Resweber             Opinion No. H-793
Harris County Attorney
Harris County Courthouse               Re:   Mental   hospital
Rouston, Texas 77092                   emergency admissions and
                                       related questions.
Dear Mr. Resweber:
     You have asked several questions concerning the respon-
sibility of the sheriff with respect to the apprehension,
transportation, and detention of persons thought to be
mentally ill. The first of them is:
          1. Must the Sheriff of Harris County
          comply with Subsection B of Article
          5547-28, V.A.C.S. and make application
          for admission of a patient brought to the
          hospital by the sheriff pursuant to a
          warrant issued by a magistrate, when in
          fact the sheriff has no personal knowledge
          of the mental state of the patient or the
          circumstances surrounding the warrant being
          issued for the patient's apprehension and
          transportation to the mental hospital?
     Articles 5547-27 and 5547-28 of the Texas Mental Health
code, as amended in 1975, read in part:
          Art. 5547-27.   Authority of health or
               peace officer
             Any health or peace officer, who
                                           -- has
          reason to believe and does believe upon
          therapTiisWn~          Ee~erson,
          in writing, or upon the basis of the conduct
          of a person ijF the circumstances under which




                             p. 3344
The Honorable Joe Resweber - page 2 (H-793)


         he is found that the person is mentally ill
         and because of his mental illness is likely
         to cause injury to himself or others if not


          him to the nearest hospital or other
          facility deemed suitable by the county
          health officer. . . .Such person admitted
          upon such warrant may be detained in
          custody for a period not to exceed twenty-
          four (24) hOUr8, unless a further written
          order is obtained from the County Court
          or Probate Court of such county, ordering
          further detention.
          .   .   .

          Art. 5547-20.   Emergency a&nission
             The head of a mental hospital, a general
          hospital, or other facility deemed suitable
          by the county health officer shall not admit
          nor detain any person for eme
          xn   and treatment unless:
             (a) A warrant h-n       obtained from a
          magistraFe orderin~~prehension       and
          takins into custodv of such verson to be


             (b) A written a lication is made by a
          health OF peace ofF=-lmi---
                             leer w o as scperson
          in his custody stating the circumstances
          under which the person was taken into custody
          and the officer's belief and the reasons
          therefor that the person is mentally ill and
          that because of his mental illness is likely
          to cause injury to himself or others if not
          immediately restrained: -
                                  and




                             p. 3345
The Honorable Joe Resweber - page 3 (H-793)


            (c) A written and certified opinion is
         made by zhmalofhcer         on duty at t=
         hoepital or other facility, that after a pre-
         liminary examination, the-person has symptoms
         of mental illness and is likely to cause
         injury to himself or others if not immediately
         restrained. (Emphasis added).
     The distinction between an emer enc
to article 5547-20, V.T.C.S., ana-zii%&0~~~~";~~u:~:":~"'
an order of protective custody issued under article 5547-66,
V.T.C.S., can easily be misapprehended. The latter statutory
provision reads:
          If in the county court in which an Applica-
          tion for Temporary Hospitalization or a
          Petition for Indefinite Commitment is
          pending, a Certificate of Medical Examin-
          ation for Mental Illness is filed showing
          that the proposed patient has been examined
          within five (5) days of the filing of the
          Certificate and stating the opinion of the
          examining physician that the proposed
          patient is mentally ill and because of his
          mental illness is likely to cause injury to
          himself or others if not immediatelv restrained,
          the iudae mav order any health or peace officer-
          --,p-P
          to take-the -ro osedI patient into E;;t;;t;ve
          iE%%
                  -_---..-..----:ely
                                   transport
                 ted mental hospital or other suitable
          place and detain him pending order of the
          Court. (Emphasis added).
     A person taken into protective custody under the authority
of article 5547-66, V.T.C.S., and admitted to the designated
hospital in response to the order has not been admitted to
the hospital "for'emergency ObBerVaiiOn and treatment" as
that phrase is used by the Texas Mental Health Code.  Such
an admission is authorized.wholly apart from articles 5547-
27 and 5547-20, and the person is detained merely to await
the action of the court on the application or petition
pending before it.




                           p. 334L
                                                               .   _;



The Honorable Joe Resweber - page 4 (I{-793)


     However, a person originally taken into protective
custody by an officer for transportation to a designated
hospital pursuant to a court order might, by his conduct,
convince the officer that immediate, emergency observation
and treatment is necessary at the nearest hospital, even
though it is not the one designated by the order. If so,
the officer may take the person there, and the protective
custody order will serve as a substitute for the magia-
irate's warrant, which otherwise would be necessary for
emergency commitment. But it does not obviate the need to
satisfy other prerequisites to emergency admission.
     An officer, such as the sheriff, is not authorized to
apply for the emergency admission of a person to a mental
hospital under article 5547-20, V.T.C.S., unless the officer
believes that the person is mentally ill and that because of
his mental illness he is likely to cause injury to himself
or others if not immediately restrained. If the officer who
has custody of the person is unable or unwilling (1) to make
a written application for the emergency admission of the
person on the statutory basis; (2) to state his reasons
for that belief, whether based on personal observation or
on the representations of a credible person: and (31 to
explain how the person came to be in his custody; then the
law does not authorize an emergency admission.
     Your next two questions are:
          2.  When the Sheriff of Harris County
          presents a patient for admission pursuant
          to a warrant issued under article 5547-27,
          V.A.C.S., and refuses to make application
          for admission of the patient pursuant to
          Paragraph B of Article 5547-28 because
          the sheriff has no personal knowledge of
          the patient's mental state, what should
          the head of a psychiatric hospital do?




                         p. 3347
The Honorable Joe Resweber - page 5 (H-793)


          3. What minimum requirements must the
          Lpplication for admission
                            . _     outlined in
          Paragrapn B of Article 5547-28, V.A.C.S.,
          meet before the head of a mental hospital
          may admit a patient?
      The sheriff is never authorized to take a person into
custody pursuant to article 5547-27, V.T.C.S., unless he
"has reason to believe and does believe" that the person is
mentally ill and dangerous to himself or others, and unless
he has also secured a warrant from a magistrate on that
basis. The opinion formed by the sheriff need not be based
upon "personal knowledge" of the person's mental state.   It
can be based upon the representation of a credible person.
If the sheriff, after taking a person into CUBiOdy  under the
authority of article 5547-27, V.T.C.S., refuses to make
application for an emergency admission, then the head of the
hospital Cannot admit the person on an emergency basis
unless, of course, the head of the hospital or another
BubBeqUenily  acts as the officer empowered by article 5547-
27 to secure a warrant and take the person into Custody.
     But the shariff need make no representations "upon
personal knowledge" of the person's mental state. If he
satisfies the requirements of article 5547-20(b), which are
plainly stated and have been diBcussed above, the head of
the hospital may not refuse emergency admission solely
because the sheriff refuses to make the application on the
basis of "personal knowledge." It is enough if the sheriff,
in writing, states that he believes the person in his custody
to be mentally ill and dangerous, and explains the reasons
he holds that belief and the circumstances under which hz
took the person into his custody.
     your fourth‘and fifth questions are:
          4. Must the Sheriff of Harris County
          execute a Writ directing him to trans-
          port a patient pursuant to Section 61 of
          Article 5547, V.A.C.S.?




                           p. 3348
The Honorable Joe Resweber - page 6 (ll-'793)


          5. How Should the Sheriff determine
          "if other means are available," as that
          term is used in Paragraph C of Section
          64 of Article 5547, V.A.C.'S.?
     Articles 5547-61 and 5547-64 read:
          Art. 5547-61. Person authorized to
               transport patient
             (a) The court may authorize a rela-
          tive or other responsible person having
          a proper interest in the welfare of the
          patient to transport him to the designated
          mental hospital.
             (b) If the head of the designated
          hospital advises the court that hospital
          personnel are available for the purpose,
          the court may authorize the head of the
          hospital to transport the patient to the
          designated mental hospital.
             (12) Otherwise, the court may authorize
          the sheriff to transport the patient to the
          designated mental hospital.

          Art. 5547-64.   Transportation of patients
             (a) Friends and relatives of the patient
          at their own expense may accompany him to
          the mental hospital.
             (b)    Every female patient Bha:l beg.%ccn~-
          panied   by a female attendant unless accompar,ied
          by her   father, husband or adult brother or ~(on
          during   conveyance to the mental hcq>i?al.
             (c) The patient shall not be trans;l,olt.:z
          in a marked police or sheriff's car or ac:com..
          panied by officers in uniform if othec means
          are available.




                              p. 334'1
.




    The Honorable Joe Resweber - page 7 W-793)


         These two statutes are found in the part of the Texas
    Mental Health Code having to do with court orders of commit-
    ment and they contemplate that a court order will desi.gnate
    the persons responsible for transporting the patient; If
    the court designates the sheriff as that person, or a: one
    of such persons, it is the duty of the sheriff to discharge
    the obligation lawfully imposed upon him by the court.
    V.T.C.S. art. 6073; 52 Tex.Jur.Zd, Sheriffs, Constables,
    and Marshalls, 5 0.
         Whether the sheriff has available the means other than
    marked cars or uniformed officers to transport patients is a
    question of fact that must be reasonably determined by the
    sheriff in the first instance, taking into consideration all
    the facts and circumstances existing at the time the question
    arises. "Available means" must be understood as adequate
    available means. Undoubtedly, on occasion the emergency may
    be so acute, or some mental patients may be so violent,
    that they may be safely transported only in police vans:
    but, generally, if the sheriff can safely and economically
    arrange adequate unmarked transportation and nonuniformed
    accompaniment for the patient, it is his duty to do so.
         Your   last question is:
                6. Is the Sheriff of Harris County
                authorized or required to apprehend and
                return a patient to a mental hospital
                who has escaped or whose furlough has
                been cancelled under the provisions
                outlined in Section 1721 of Article
                5547, V.A.C.S.?
         Article 5547-72, V.T.C.S., reads:
                Art. 5547-72. Patients absent without
                     authority
                   (a) The head of a mental hospital
                shall initiate action to regain custody
                of any patient who is absent without
                authority.




                                    p. 3350
The Honorable Joe Resweber - page 0 (H-793)


             (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.
     The provisions of this statute are plain, but do not
apply to voluntary patients. Accordingly, the sheriff ha;:
a duty to apprehend and return escaped patients and those
who are away without leave. --
                             But see Attorney General
Opinion M-432 (1969).
                      SUMMARY
               An emergency admission of a patient under
          article 5547-20, V.T.C.S., may not be made
          unless the officer having custody of the
          proposed patient makes the required written
          application. The officer need only state his
          belief that the person is mentally ill and
          dangerous, the reasons for his belief, and
          the circumstances under which the person
          came   into his Custody.
             Sheriffs must transport mental patislrt::;
          when ordered to do so by a competent
          COUri and must use all reasonable efforts
          to do so with unmarked cars and nonuriforroed
          people. The sheriff must also apprehend
          and return escaped patients and those
          who are away without leave, except fo:
          voluntary patients.
                                Very   truly   yours,



                                Attorney General or'?rxas




                          p.   3351
The Honorable Joe Resweber - page 9 (H-793)




Opinion Committ6e

jwb




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