Can a mental health facility make police get a patient 'medically cleared' before an emergency mental health detention?

TX AG Opinion GA-0753: Can a mental health facility require police to get medical clearance before an emergency detention?

Plain-English summary

When police take a person into custody under chapter 573 of the Health and Safety Code, the emergency-detention process for someone believed to be mentally ill and a danger to self or others, the law tells the officer where to take that person. The Kerr County Attorney asked the Attorney General whether a mental health facility can require the officer to first stop at a medical facility for a "medical clearance" before the facility will accept the person. Local inpatient mental health facilities, she explained, were requiring proposed patients to be "medically cleared" before they would accept them.

The opinion said the facilities have no such power. Chapter 573 sets up two ways an officer ends up transporting someone: a warrantless apprehension under subchapter A in narrow circumstances, and an apprehension on a magistrate's warrant after an application under subchapter B. In both, the statute directs the officer to transport the person to one of two destinations: the nearest appropriate inpatient mental health facility, or, if none is available, a mental health facility the local mental health authority deems suitable.

Reading that language by its plain terms, the opinion pointed out that the statute gives the receiving facilities no authority to direct the officer at all, much less to send the officer to a third location for medical clearance. Nor does chapter 573 let a facility reject a person for lack of a medical evaluation. Because the statute is silent on any such facility power, the opinion concluded a facility is not authorized to require the officer to obtain medical clearance first. The opinion acknowledged the real economic, health, and policy concerns raised in several briefs, but said those broader matters are for the Legislature; the narrow legal question was all the opinion resolved.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Chapter 573 and the related definitions in chapter 571 of the Health and Safety Code may have been amended since 2009, and the Legislature has at times revisited mental health transportation and "medical clearance" practices. Confirm current law before relying on anything below.

Who this opinion affected (as of 2009)

Peace officers and sheriff's departments: The opinion described that, under chapter 573 as written, an officer transporting a person in emergency mental health custody could not be compelled by the receiving facility to detour to a medical facility for clearance first.

Inpatient and other mental health facilities: The opinion explained that the statute gave them no authority to direct an officer or to reject a person held under chapter 573 for lack of a medical evaluation.

Counties and local mental health authorities: The opinion noted that the underlying economic, health, and policy concerns about medically clearing involuntary patients were matters for the Legislature, not powers the current statute conferred on facilities.

Common questions

Can a mental health facility refuse to take a person police bring in under chapter 573 without a medical clearance?
According to the opinion, no. Chapter 573 gives the facility no authority to reject a person for lack of a medical evaluation.

Where is an officer supposed to take a person held under chapter 573?
The opinion explained the statute directs the officer to the nearest appropriate inpatient mental health facility, or, if none is available, a mental health facility the local mental health authority deems suitable.

Does the facility get to tell the officer what to do?
No. The opinion read the statute as giving the receiving facility no power to direct the officer in any manner, including ordering a stop for medical clearance.

So who can change the medical-clearance practice?
The opinion said the broader economic, health, and policy questions about transporting and clearing involuntary patients are appropriately addressed by the Legislature, not resolved by the existing chapter 573 text.

Background and statutory framework

The Texas Mental Health Code (subtitle C of title 7 of the Health and Safety Code, sections 571.001 through 578.008) governs the care and treatment of mentally ill individuals, and chapter 573 provides for emergency detention of a person believed to be mentally ill and a risk to self or others (Tex. Health & Safety Code Ann. chs. 571-578 (Vernon 2003 & Supp. 2009)). Under subchapter A, a peace officer may apprehend a person without a warrant in narrow circumstances and must immediately transport the person to the nearest appropriate inpatient mental health facility, or a mental health facility deemed suitable by the local mental health authority if no inpatient facility is available, then immediately file an application for detention (id. §§ 573.001(a), (d), 573.002(a) (Vernon 2003)). Under subchapter B, any adult may file a written application; on the required findings, a magistrate issues a warrant for apprehension and the person is transported for a preliminary examination to the same two types of facilities (id. §§ 573.011(a), 573.012(d)-(e), 573.021 (Vernon Supp. 2009)). The statutory definitions of "inpatient mental health facility" and "mental health facility" appear in section 571.003 (id. § 571.003(9), (12) (Vernon Supp. 2009)).

Courts construe statutes to determine legislative intent, looking first to plain language (Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008); Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999)). The opinion found that subsections 573.001(d) and 573.012(e) direct transport to only those two types of facilities and contain no grant of authority to a facility to direct an officer or to reject a person for lack of medical clearance; the Code of Criminal Procedure's general peace-officer duties provision likewise confers no such facility power (Tex. Code Crim. Proc. Ann. art. 2.13 (Vernon 2005)). Whether a given facility is "nearest," "appropriate," or "deemed suitable" involves fact questions outside an AG opinion. Because the statute is silent on any facility authority to require medical clearance, the opinion concluded the facilities are not authorized to impose that requirement.

Citations

Statutes:

• Tex. Health & Safety Code Ann. chs. 571-578 (Vernon 2003 & Supp. 2009); §§ 573.001(a), (d), 573.002(a) (Vernon 2003); §§ 573.011(a), 573.012(d)-(e), 573.021, 571.003(9), (12) (Vernon Supp. 2009)
• Tex. Code Crim. Proc. Ann. art. 2.13 (Vernon 2005)

Cases:

• Leland v. Brandal, 257 S.W.3d 204 (Tex. 2008)
• Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864 (Tex. 1999)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0753
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0753.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

December 28, 2009

Ms. Ilse Bailey
Acting Kerr County Attorney
County Courthouse, Suite BA-103
700 Main Street
Kerrville, Texas 78028

Opinion No. GA-0753

Re: Whether a peace officer who has taken a person into custody under chapter 573 of the Health and Safety Code may be required to transport that individual to a medical facility for evaluation prior to taking that person to a mental health facility (RQ-0809-GA)

Dear Ms. Bailey:

The Texas Mental Health Code, codified as subtitle C of title 7, Health and Safety Code (consisting of sections 571.001 through 578.008) pertains to the care and treatment of mentally ill individuals. See TEX. HEALTH & SAFETY CODE ANN. chs. 571-578 (Vernon 2003 & Supp. 2009). Chapter 573 provides for the emergency detention of a person who is believed to be mentally ill and a risk to him or herself or to others. See id. ch. 573. You ask whether a peace officer who takes a person into custody under chapter 573 may be required to transport that person to a medical facility for a medical evaluation prior to taking that person to a mental health facility.[1] You explain that the local "inpatient mental health facilities require that proposed patients be 'medically cleared' before they will accept the person for mental health treatment." Request Letter at 1.

A peace officer may take custody of and transport a person under chapter 573 in two circumstances. First, chapter 573, subchapter A, authorizes a peace officer to take a person into custody, without a warrant, in narrow, specified circumstances. See TEX. HEALTH & SAFETY CODE ANN. § 573.001(a) (Vernon 2003). The peace officer taking a person into custody under section 573.001 is required to "immediately transport the apprehended person to: (1) the nearest appropriate inpatient mental health facility;[2] or (2) a mental health facility[3] deemed suitable by the local mental health authority, if an appropriate inpatient mental health facility is not available." Id. § 573.001(d) (footnotes added). The peace officer is then required to "immediately file an application for detention after transporting a person to a facility." Id. § 573.002(a).

Second, chapter 573, subchapter B, authorizes any adult to file a written application for the emergency detention of another person. See id. § 573.011(a). Upon certain findings by the judge or magistrate regarding a person's mental illness and risk of harm, the "magistrate shall issue to an on-duty peace officer a warrant for the person's immediate apprehension." Id. § 573.012(d) (Vernon Supp. 2009). The "person apprehended . . . shall be transported for a preliminary examination in accordance with Section 573.021 to: (1) the nearest appropriate inpatient mental health facility; or (2) a mental health facility deemed suitable by the local mental health authority, if an appropriate inpatient mental health facility is not available." Id. § 573.012(e).

As we consider your question, we examine chapter 573 mindful that in construing statutes courts seek first to determine the Legislature's intent. See Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). Courts look to the statute's plain language under the assumption that the Legislature meant what it said and that its words are the surest guide to its intent. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999). Where language of a statute is unambiguous and its meaning clear, courts give effect to the statute according to its terms. See id.

The plain language of subsections 573.001(d) and 573.012(e) directs a peace officer to transport a person in custody under chapter 573 to only two types of facilities: (1) an "inpatient mental health facility;"[4] or (2) a "mental health facility." TEX. HEALTH & SAFETY CODE ANN. § 573.001(d) (Vernon 2003), 573.012(e) (Vernon Supp. 2009). The two subsections contain no grant of authority to an inpatient mental health facility or mental health facility. See id. §§ 573.001(d) (Vernon 2003), 573.012(e) (Vernon Supp. 2009). Specifically, neither subsection 573.001(d) nor subsection 573.012(e) authorize such facilities to direct a peace officer in any manner, much less to require a peace officer to transport a person in custody under chapter 573 to a facility other than one authorized under chapter 573. See id. §§ 573.001(d) (Vernon 2003), 573.012(e) (Vernon Supp. 2009); see also generally TEX. CODE CRIM. PROC. ANN. art. 2.13 (Vernon 2005) (setting out duties and powers of peace officers but containing no provision authorizing mental health facilities to direct a peace officer). Moreover, chapter 573 contains no grant of authority allowing an inpatient mental health facility or mental health facility to reject a person transported by a peace officer under chapter 573 for lack of a medical evaluation and clearance. See TEX. HEALTH & SAFETY CODE ANN. ch. 573 (Vernon 2003 & Supp. 2009). Because we must give effect to the statute's plain language and because the statute contains no grant of authority to such facilities, we conclude that an inpatient mental health facility or a mental health facility is not statutorily authorized to require a peace officer to transport a person in custody under chapter 573 to a medical facility for a medical evaluation prior to taking that person to the mental facility.[5]

We received several briefs informing us of the potential economic, health, and policy implications of our opinion.[6] We recognize that the transportation of involuntary patients by law enforcement implicates a number of complex issues. While our opinion addresses the narrow legal issue before us, the broader economic, health, and policy matters are appropriately addressed by the Legislature.

SUMMARY

An inpatient mental health facility or a mental health facility is not statutorily authorized to require a peace officer to transport a person in custody under chapter 573, Health and Safety Code, to a medical facility for a medical evaluation prior to taking that person to the mental facility.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[Footnote 1: Request Letter at 1 (available at http://www.texasattorneygeneral.gov) (original request from Honorable M. Rex Emerson, former Kerr County Attorney).]

[Footnote 2: "Inpatient mental health facility" means a mental health facility that can provide 24-hour residential and psychiatric services and that is: (A) a facility operated by the department [Texas Department of Mental Health and Mental Retardation]; (B) a private mental hospital licensed by the Texas Department of Health; (C) a community center, facility operated by or under contract with a community center or other entity the department [Texas Department of Mental Health and Mental Retardation] designates to provide mental health services; (D) a local mental health authority or a facility operated by or under contract with a local mental health authority; (E) an identifiable part of a general hospital in which diagnosis, treatment, and care for persons with mental illness is provided and that is licensed by the Texas Department of Health; or (F) a hospital operated by a federal agency. TEX. HEALTH & SAFETY CODE ANN. § 571.003(9) (Vernon Supp. 2009).]

[Footnote 3: "Mental health facility" means: (A) an inpatient or outpatient mental health facility operated by the department, a federal agency, a political subdivision, or any person; (B) a community center or a facility operated by a community center; or (C) that identifiable part of a general hospital in which diagnosis, treatment, and care for persons with mental illness is provided. Id. § 571.003(12).]

[Footnote 4: We recognize that the term "inpatient mental health facility" is modified by the words "nearest" and "appropriate." Id. §§ 573.001(d)(1) (Vernon 2003), 573.012(e)(1) (Vernon Supp. 2009). Similarly, the term "mental health facility" is limited to one that is "deemed suitable by the local mental health authority." Id. §§ 573.001(d)(2) (Vernon 2003), 573.012(e)(2) (Vernon Supp. 2009). Whether a particular "inpatient mental health facility" is nearest or appropriate, and whether a "mental health facility" is deemed suitable by the local mental health authority are questions that involve factual considerations and are thus outside the purview of an attorney general opinion. See, e.g., Tex. Att'y Gen. Op. No. GA-0726 (2009) at 3 ("We cannot find and resolve questions of fact in an attorney general opinion."). These fact questions, however, do not serve to expand the scope of subsections 573.001(d) and 573.012(e) such that the subsections include a facility that is neither an inpatient mental health facility or a mental health facility.]

[Footnote 5: Whether certain situations may trigger powers and duties of a peace officer outside of chapter 573 that would authorize or require the officer to take a person in custody to a medical facility is beyond the purview of your inquiry.]

[Footnote 6: See Brief from Kathryn Lewis, Advocacy Incorporated (Aug. 3, 2009); Brief from Sheree Hess, Hill Country Crisis Stabilization Unit (Aug. 7, 2009); Brief from Susan Stefan, Center for Public Representation (Aug. 3, 2009); Brief from Carvan E. Adkins, Texas Council of Community MHMR Centers, Inc. (Aug. 10, 2009) (all on file with Opinion Committee).]