Who appoints an associate judge for Texas court-ordered mental health cases?

Plain-English summary

The Bexar County Criminal District Attorney asked the AG to settle what "county judge" means in one mental-health statute. Chapter 574 of the Health and Safety Code governs court-ordered mental health services, and those proceedings must be held in the statutory or constitutional county court that has the jurisdiction of a probate court in mental-illness matters. Section 574.0085(a) says "the county judge may appoint" a full-time or part-time associate judge to preside over those proceedings, if the commissioners court authorizes the position. The phrase "county judge" is slippery in Texas: it can mean the presiding officer of the county commissioners court, or it can mean the presiding judge of the county-level court that hears these cases.

The AG worked through the court structure. A constitutional county court exists in every county, and its judge also presides over the commissioners court, but some constitutional county court judges have opted out of mental-health jurisdiction. The Legislature also created statutory county courts and statutory probate courts, and in a county with a statutory probate court, that court has exclusive jurisdiction over probate and mental-health proceedings. So the court that actually hears these cases varies county to county.

Reading section 574.0085 in context, the AG concluded "county judge" means the judge of the court with jurisdiction over mental-illness matters. The prior section ties the proceeding to "the statutory or constitutional county court that has the jurisdiction of a probate court in mental illness matters," so "the court" in 574.0085(a) refers to that court and "county judge" refers to its judge. Subsection (d), which says an associate judge serving a single court "serves at the will of the judge of that court," points the same way. A separate Government Code provision clinches it: an associate judge appointed by a statutory probate court under subchapter C of chapter 54A may serve as an associate judge under section 574.0085, which would make no sense if the commissioners court's presiding officer, rather than the probate judge, did the appointing. Older versions of the Mental Health Code had expressly defined "county judge" as the judge of the probate court, and the 1991 recodification was nonsubstantive, so the historical meaning carried forward. The AG therefore concluded a court would likely hold that the statutory or constitutional county court judge with mental-illness jurisdiction has the appointment authority.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The requesting district attorney (as the opinion described it): The opinion answered that "county judge" in section 574.0085(a) likely means the statutory or constitutional county court judge with jurisdiction over mental illness matters, not the presiding officer of the commissioners court.

County and probate judges (as the opinion described them): The opinion explained that the judge of the court that hears mental-health cases holds the power to appoint the associate judge, and where a county has a statutory probate court, that probate judge is the one who appoints (consistent with the chapter 54A cross-reference).

Commissioners courts (as the opinion described them): The opinion noted the commissioners court's role is to authorize and fund the associate-judge position, while the appointment itself belongs to the judge of the court with mental-illness jurisdiction.

Common questions

Who appoints the associate judge for mental health commitment cases?
Under this opinion, the statutory or constitutional county court judge that has jurisdiction over mental-illness matters, not the head of the commissioners court.

Doesn't the commissioners court have any role?
Yes. The opinion noted that section 574.0085(a) lets the appointment happen only if the commissioners court authorizes the employment of an associate judge, so the commissioners court funds the position even though it does not make the appointment.

What if the county has a statutory probate court?
Then that probate court has exclusive jurisdiction over mental-health proceedings, and the opinion read the Government Code to confirm the probate judge appoints the associate judge.

Why doesn't "county judge" mean the commissioners court's presiding officer?
The opinion explained that the surrounding provisions tie "the court" and "the judge of that court" to the court hearing the case, that a chapter 54A cross-reference assumes the probate judge appoints, and that older Mental Health Code definitions treated "county judge" as the judge of the probate court.

Background and statutory framework

Chapter 574 governs court-ordered mental health services and authorizes certain judges to commit individuals to involuntary care (Tex. Health & Safety Code §§ 574.001-.203, 574.034-.035). Those proceedings must be held in the statutory or constitutional county court with the jurisdiction of a probate court in mental-illness matters (Tex. Health & Safety Code § 574.008(a)), and section 574.0085(a) authorizes the county judge to appoint an associate judge if the commissioners court authorizes the position (Tex. Health & Safety Code § 574.0085(a)). Both constitutional and statutory county court presiding officers can be called "county judges" (Tex. Health & Safety Code § 574.0085(b); Tex. Est. Code § 22.007(b)). The constitution creates the constitutional county court and its judge, who also presides over the commissioners court, with jurisdiction as provided by law (Tex. Const. art. V, §§ 15, 16, 18(b); Tex. Gov't Code §§ 26.041, .042; Tex. Pipe Line Co. v. Hunt, 228 S.W.2d 151, 153 (Tex. 1950)), and some such judges may elect not to have mental-health jurisdiction (Tex. Gov't Code § 26.052(b)). The Legislature also created statutory county courts and statutory probate courts (Tex. Const. art. V, § 1; Tex. Gov't Code §§ 25.0001-.2702, 25.0003(a), 25.0010(e), 25.0021), and in a county with a statutory probate court that court has exclusive jurisdiction of probate and mental-health proceedings (Tex. Est. Code § 32.005(a)).

Because chapter 574 does not define "county judge," the AG construed it for legislative intent in context (Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 494 (Tex. 2013); In re Office of the Att'y Gen., 456 S.W.3d 153, 155-56 (Tex. 2015); Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014)). Reading 574.008(a) and 574.0085(a), (d) together, the AG concluded "county judge" means the judge of the court with mental-illness jurisdiction. The chapter 54A subchapter on statutory probate court associate judges supports this, since an associate judge appointed under it may serve under section 574.0085, which would contradict giving the appointment to the commissioners court's officer (Tex. Gov't Code §§ 54A.203, 54A.203(e), 54A.207(a); In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 311 (Tex. 2010); City of Round Rock v. Rodriguez, 399 S.W.3d 130, 137 (Tex. 2013)). The AG distinguished In re L.L., 821 S.W.2d 247 (Tex. App.—San Antonio 1991, writ denied), as not construing the term, addressed the singular-plural argument (Tex. Health & Safety Code § 574.0085(c); Tex. Gov't Code § 311.012(b)), and noted the predecessor Mental Health Code expressly defined "county judge" as the judge of the probate court, carried forward by the nonsubstantive 1991 recodification (Tex. Gov't Code § 311.023(4)).

Citations

Constitutional and statutory provisions:

• Tex. Health & Safety Code §§ 574.001-.203, 574.034-.035, 574.008(a), 574.0085(a), 574.0085(b), 574.0085(c), 574.0085(d)
• Tex. Est. Code §§ 22.007(b), 32.005(a)
• Tex. Const. art. V, §§ 1, 15, 16, 18(b)
• Tex. Gov't Code §§ 26.041, .042, 26.052(b), 25.0001-.2702, 25.0003(a), 25.0010(e), 25.0021, 54A.203, 54A.203(e), 54A.207(a), 311.012(b), 311.023(4)

Cases:

• Tex. Pipe Line Co. v. Hunt, 228 S.W.2d 151 (Tex. 1950)
• Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492 (Tex. 2013)
• In re Office of the Att'y Gen., 456 S.W.3d 153 (Tex. 2015)
• Jaster v. Comet II Constr., Inc., 438 S.W.3d 556 (Tex. 2014)
• In re L.L., 821 S.W.2d 247 (Tex. App.—San Antonio 1991, writ denied)
• In re United Servs. Auto. Ass'n, 307 S.W.3d 299 (Tex. 2010)
• City of Round Rock v. Rodriguez, 399 S.W.3d 130 (Tex. 2013)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0141
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0141.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

April 17, 2017

The Honorable Nicholas "Nico" LaHood Opinion No. KP-0141
Bexar County Criminal District Attorney
101 West Nueva, 7th Floor Re: Authority to appoint associate judges to
San Antonio, Texas 78205-3030 preside over proceedings for court-ordered
mental health services pursuant to section
574.0085 of the Health and Safety Code
(RQ-0135-KP)

Dear Mr. LaHood:

    You request an opinion addressing which public official appoints associate judges pursuant to subsection 574.0085(a) of the Health and Safety Code. [1] Chapter 574 of the Health and Safety Code governs court-ordered mental health services. See TEX. HEALTH & SAFETY CODE §§ 574.001-.203. Through this chapter, the Legislature authorized certain judges to commit individuals to involuntary psychiatric care in specific circumstances. See id. §§ 574.034-.035 (authorizing a judge to order a proposed patient to receive court-ordered inpatient mental health services upon making certain findings). Specifically, the law requires that the "statutory or constitutional county court that has the jurisdiction of a probate court in mental illness matters" conduct the proceedings for court-ordered mental health services. Id. § 574.008(a). In addition, the Legislature authorized the appointment of associate judges to preside over such proceedings:

            The county judge may appoint a full-time or a part-time associate judge to preside over the proceedings for court-ordered mental health services if the commissioners court of a county in which the court has jurisdiction authorizes the employment of an associate judge.

Id. § 574.0085(a). You ask about the meaning of the term "county judge" as used in this provision. Request Letter at 1. You explain that it could mean the presiding officer of the county commissioners court or, alternatively, the presiding judge of the county probate court with jurisdiction over mental illness matters. Id. at 2-4.

    Texas law establishes both constitutional and statutory county courts, and the presiding officers of both can be referred to as "county judges." See, e.g., TEX. HEALTH & SAFETY CODE § 574.0085(b) (explaining that persons eligible to serve as an associate judge include "a retired county judge, statutory or constitutional"); TEX. EST. CODE § 22.007(b) (defining "county court" for purposes of the Estates Code to include both constitutional and statutory courts with probate jurisdiction). With regard to constitutional county courts, article V, section 15 of the Texas Constitution establishes a "County Court" for each county and the position of "County Judge" to preside over those courts. TEX. CONST. art. V, § 15. The constitutional county court judge also serves as presiding officer of the county commissioners court. Id. art. V, § 18(b). These courts are commonly referred to as "constitutional county courts" to distinguish them from county-level courts created by statute. See Tex. Pipe Line Co. v. Hunt, 228 S.W.2d 151, 153 (Tex. 1950) (referring to courts created by article V, section 15 as "constitutional county courts"). Constitutional county courts have "jurisdiction as provided by law," including concurrent jurisdiction with justice courts and district courts in some civil cases. TEX. CONST. art. V, § 16; see also TEX. GOV'T CODE §§ 26.041 (explaining that a constitutional county court has jurisdiction conferred by subchapter D, chapter 26 of the Government Code and other law), .042 (outlining the general civil jurisdiction of the constitutional county court). Relevant to your request, some but not all constitutional county courts have jurisdiction over mental health proceedings. See TEX. GOV'T CODE § 26.052(b) (authorizing the constitutional county court judge to elect not to have jurisdiction over mental health proceedings).

    Chapter 25 of the Government Code establishes statutory county courts. See id. §§ 25.0001-.2702; see also TEX. CONST. art. V, § 1 (authorizing the Legislature to "establish such other courts as it may deem necessary"). Statutory county courts may have "jurisdiction over all causes and proceedings, civil and criminal, original and appellate, prescribed by law for county courts." TEX. GOV'T CODE § 25.0003(a). "The judge of a statutory county court may appoint the personnel necessary for the operation of the court ... if the commissioners court has approved the creation of the position." Id. § 25.0010(e). In addition to general statutory county courts, the Legislature established statutory probate courts, which have jurisdiction over probate matters and certain proceedings instituted under the Health and Safety Code. Id. § 25.0021. Some but not all statutory county courts have jurisdiction over mental health proceedings under the Mental Health Code. See TEX. HEALTH & SAFETY CODE § 574.008(a) (explaining that proceedings under the Mental Health Code must be held in the county court with jurisdiction of a probate court in mental illness matters). "In a county in which there is a statutory probate court, the statutory probate court has exclusive jurisdiction of all probate proceedings" and mental health proceedings. TEX. EST. CODE § 32.005(a); see also 48B Robert P. Schuwerk & Lillian B. Hardwick, Texas Practice Series: Tex. Lawyer & Judicial Ethics § 40.61 (2016 ed.) (explaining that statutory probate courts have exclusive jurisdiction over mental health commitments in the counties where such courts exist).

    Chapter 574 of the Health and Safety Code does not define "county judge." Given that the term is capable of multiple meanings, we must construe the statute to effectuate the Legislature's intent. See Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 494 (Tex. 2013) (explaining that the "primary objective in construing a statute is to ascertain and give effect to the Legislature's intent"). In doing so, we must construe the words of the statute in the context of its surrounding provisions. In re Office of the Att'y Gen., 456 S.W.3d 153, 155-56 (Tex. 2015); Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014) ("While we must consider the specific statutory language at issue, we must do so while looking to the statute as a whole.").

     Section 574.008 of the Health and Safety Code provides that proceedings for court-ordered mental health services and post-commitment proceedings "must be held in the statutory or constitutional county court that has the jurisdiction of a probate court in mental illness matters." TEX. HEALTH & SAFETY CODE § 574.008(a). The next section, the one about which you ask, provides that the "county judge may appoint ... [an] associate judge to preside over the proceedings for court-ordered mental health services if the commissioners court of a county in which the court has jurisdiction authorizes the employment of an associate judge." Id. § 574.0085(a) (emphasis added). Reading the provisions as a whole, the "court" refers to the statutory or constitutional county court that has jurisdiction of mental illness matters, and "county judge" consequently refers to the judge of that court. [2] Consistent with this construction, subsection (d) further provides that "[a]n associate judge who serves a single court serves at the will of the judge of that court." Id. § 574.0085(d) (emphasis added). Thus, read in the full context of these sections, a court would likely conclude that "county judge," as used in subsection 574.0085(a), refers to the statutory or constitutional county court judge with jurisdiction over mental illness matters. [3]

    Subchapter C, Chapter 54A of the Government Code, which relates to the appointment of statutory probate court associate judges, supports this construction. That subchapter authorizes the judge of a statutory probate court to appoint associate judges to hear "any aspect of a suit over which the probate court has jurisdiction." TEX. GOV'T CODE § 54A.207(a); see also id. § 54A.203. Significant to your question, an associate judge appointed pursuant to subchapter C "may serve as an associate judge appointed under Section 574.0085, Health and Safety Code." Id. § 54A.203(e). Construing section 574.0085(a) to authorize the judge of the constitutional county court to appoint the associate judge rather than the judge of the statutory probate court, when one exists, would directly contradict this provision. See In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 311 (Tex. 2010) (directing courts to construe statutes to harmonize with other relevant laws whenever possible); City of Round Rock v. Rodriguez, 399 S.W.3d 130, 137 (Tex. 2013) ("In construing a statute, ... we presume that the Legislature acted with knowledge of the background law[.]"). Rather, section 54A.203 further demonstrates the Legislature's intent to authorize the judge with jurisdiction of a probate court over mental illness matters to appoint an associate judge under section 574.0085(a). See TEX. GOV'T CODE § 54A.203.

    The predecessor statutes to the current Mental Health Code also support this construction. Prior to its codification in the Health and Safety Code, the Mental Health Code expressly defined both county court and county judge: "The term 'county court' is used in this code to mean the 'probate court' or the court having probate jurisdiction, and the term 'county judge' means the judge of such court." [4] In 1991, the Legislature adopted "a nonsubstantive revision of the statutes relating to mental health." [5] While the Legislature did not preserve the express definitions of county court and county judge in the recodification, the statutes as revised do not change the meaning of those terms as historically used in relation to the Mental Health Code. See id. § 311.023(4) ("In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider ... former statutory provisions, including laws on the same or similar subjects[.]").

                                 SUMMARY

                   A court would likely conclude that the statutory or constitutional county court judge with jurisdiction over mental illness matters has authority to appoint the associate judge under subsection 574.0085(a) of the Health and Safety Code.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] See Letter from Honorable Nicholas "Nico" LaHood, Bexar Cty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Oct. 12, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] You direct us to In re L.L., 821 S.W.2d 247 (Tex. App.—San Antonio 1991, writ denied), and suggest the court in that case construed the term "county judge" as the constitutional county court judge and that we should do likewise. In re L.L. involved the predecessor statute to subsection 574.008(b), which at the time stated:

            Where a proceeding is to be held in the county court under Section 40 of this code and the county judge of that court is not a licensed attorney, the person or his attorney may request that such proceeding be transferred to a court with a judge that is an attorney licensed to practice law in this state. The proceeding shall then be transferred by the county judge to such court and be heard as if originally filed in such court.

Id. at 249. In re L.L. involved a request to transfer mental health proceedings from the constitutional county court to a court with a judge who was a licensed attorney, and you are correct that in that case the "county judge" transferring the case was the constitutional county court judge. Id. at 248. However, no language in the decision purports to construe the term "county judge" or suggests the phrase could not also be applied to statutory county court judges when appropriate.

[3] You suggest that because section 574.0085 "only contemplates a single party having the authority to appoint associate judges," and because an associate judge may serve more than one judge, the phrase must refer to the single presiding officer of the commissioners court. Request Letter at 4. However, along with the possibility of serving multiple courts, an associate judge may, in some instances, serve multiple counties. See TEX. HEALTH & SAFETY CODE § 574.0085(c). In such instances, multiple county judges—regardless of whether that term refers to the presiding officer of the commissioners court or the presiding judge of the court with jurisdiction over mental illness matters—will appoint the associate judge. The fact that the Legislature chose to make the term "county judge" singular in section 574.0085(a) is therefore not dispositive to the question you raise. See TEX. GOV'T CODE § 311.012(b) (explaining that in construing words and phrases in a statute, "[t]he singular includes the plural and the plural includes the singular").

[4] Act of Apr. 21, 1983, 68th Leg., R.S., ch. 47, § 1, sec. 10, 1983 Tex. Gen. Laws 211, 215-16, repealed by Act of Apr. 29, 1991, 72d Leg., R.S., ch. 76, § 19, 1991 Tex. Gen. Laws 515, 647.

[5] Act of Apr. 29, 1991, 72d Leg., R.S., ch. 76, § 1, 1991 Tex. Gen. Laws 515, 515.