Does a Texas mental health commitment hearing have to be recorded by an official court reporter?

Plain-English summary

The Kerr County Attorney asked the AG a recordkeeping question with real stakes for people facing involuntary commitment. Health and Safety Code section 574.031(g) says a hearing on an application for court-ordered mental health services "is on the record," but it does not define that phrase or say who is responsible for making the record. The county attorney wanted to know whether such a hearing has to be taken down by an official shorthand court reporter under Government Code section 52.046, and, if not, what other options a county court has.

The AG started with the constitutional backdrop. The U.S. Supreme Court has recognized that commitment to a mental hospital is a massive curtailment of liberty that requires due process protection, and the Texas Constitution allows commitment only on competent medical or psychiatric testimony and lets the Legislature provide for appeals from commitment judgments. Chapter 574 of the Health and Safety Code governs these proceedings, which run in the county court exercising probate jurisdiction over mental illness matters. At the hearing, the State must prove each element by clear and convincing evidence, and commitment orders can be appealed.

Because the statute does not define "on the record," the AG turned to the ordinary meaning, citing Black's Law Dictionary's definition of something recorded as official evidence of a proceeding. Reading section 574.031(g) alongside neighboring provisions that require recordings when hearings are held by secure electronic means or when a witness testifies by videoconference, the AG concluded "on the record" must mean a record in a form that allows appellate review of whether the State met its burden. That places an affirmative duty on the court to have the record made, a point the AG supported by analogy to Stubbs v. Stubbs, which read a similar "a record shall be made" directive in family law as a duty on the court to see that the court reporter records all oral testimony.

The remaining question was how the court must do this. The AG explained that the Kerr County Court and Court at Law are courts of record, which under Government Code section 52.041 must appoint official court reporters, and section 52.046 sets those reporters' duties, including taking full shorthand notes of testimony. Given the heightened due process concerns and the importance of a reporter's record on appeal from a commitment order (Munoz v. State), the AG concluded a court would likely hold that the hearing in Kerr County must be recorded by the official shorthand court reporter. Having reached that conclusion, the AG did not need to address the county attorney's backup question about alternatives, and noted Kerr County's courts are not among those authorized to record proceedings electronically.

Currency note

This opinion was issued in 2020. 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 mentioned here.

What the opinion meant for those who asked

For the Kerr County Attorney and the county courts handling mental health commitments, the opinion's reading at the time was that "on the record" in section 574.031(g) called for the official court reporter to take the hearing down, not an informal or optional recording. The AG framed this as a duty on the court, tied to the appeal right and the clear-and-convincing burden the State carries in these cases. For proposed patients and their counsel, the opinion meant the record needed for an appeal should be produced as a matter of the court's obligation. The AG hedged with "likely," signaling this was a prediction of how a court would read an undefined statutory phrase rather than a settled rule, and it expressly left the electronic-recording alternative unaddressed because Kerr County's courts were not authorized to use it.

Common questions

Q: Does "on the record" mean an official court reporter must be present?
A: The AG concluded it likely does, at least in Kerr County. The phrase is undefined, but read in context it means a record good enough for appellate review, and the county's courts of record must use their official court reporters to make that record.

Q: Why does the type of record matter so much in a commitment case?
A: Because commitment is a major loss of liberty with a due process right and an appeal right, and the State must prove its case by clear and convincing evidence. Without an adequate record, an appellate court cannot review whether that burden was met.

Q: Could the court use an electronic recording instead of a court reporter?
A: The AG did not decide that. It noted Kerr County's courts are not among those the Texas Supreme Court has authorized to record proceedings electronically, so the opinion addressed only the official court reporter.

Q: Is this a firm rule or a prediction?
A: A prediction. The AG said a court "would likely conclude" the hearing must be recorded by the official court reporter, because the statute does not spell the answer out and the office is forecasting how a court would construe it.

Background and statutory framework

The question arose under Health and Safety Code section 574.031(g), part of the Texas Mental Health Code (section 571.001), which provides that a hearing on an application for court-ordered mental health services "is on the record" and requires the State to prove each element by clear and convincing evidence. The AG drew the due process backdrop from Vitek v. Jones and Texas Constitution article I, section 15-a, and used the statutory-construction approach from Interest of B.C. and State ex rel. Best v. Harper, plus Black's Law Dictionary, to give content to the undefined phrase. The duty-to-make-a-record analogy came from Stubbs v. Stubbs (construing a predecessor to Family Code section 105.003(c)). The court-of-record framework rested on Texas Constitution article V, section 15, Ex parte Hayden, and Government Code sections 52.041, 52.046, and 52.001(a)(5), with Kerr County's specific jurisdiction set by Government Code sections 25.1351 and 25.1352(b)(2). The importance of the reporter's record on appeal came from Texas Rules of Appellate Procedure 34.1 and 34.6(b)(1) and Munoz v. State, with the AG noting a split among courts of appeals (Sareen v. Sareen) over the request precondition in section 52.046 versus Rule 13.1(a).

Citations and references

Constitutional, statutory, and rule provisions:

• Tex. Health & Safety Code § 574.031 (commitment hearing on the record); § 574.008; § 574.203; § 571.001
• Tex. Const. art. I, § 15-a; art. V, § 15
• Tex. Gov't Code § 52.041; § 52.046; § 52.001
• Tex. Fam. Code § 105.003
• Tex. R. App. P. 34.1; 34.6(b)(1); 13.1(a)

Cases:

• Vitek v. Jones, 445 U.S. 480 (1980)
• Interest of B.C., 592 S.W.3d 133 (Tex. 2019)
• State ex rel. Best v. Harper, 562 S.W.3d 1 (Tex. 2018)
• Stubbs v. Stubbs, 685 S.W.2d 643 (Tex. 1985)
• Ex parte Hayden, 215 S.W.2d 620 (Tex. Crim. App. 1948)
• Munoz v. State, 569 S.W.2d 642 (Tex. App.-Corpus Christi 1978, no writ)
• Sareen v. Sareen, 350 S.W.3d 314 (Tex. App.-San Antonio 2011, no pet.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0312
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0312.pdf

Original opinion text

June 1, 2020

The Honorable Heather Stebbins
Kerr County Attorney
700 Main Street, Suite BA-103
Kerrville, Texas 78028

Opinion No. KP-0312

Re: Whether a hearing on an application for court-ordered mental health services conducted pursuant to section 574.031 of the Health and Safety Code must be recorded by an official court reporter (RQ-0321-KP)

Dear Ms. Stebbins:

You ask about subsection 574.031(g) of the Health and Safety Code, which states that a hearing on an application for court-ordered mental health services "is on the record" without defining the phrase or otherwise specifying the person responsible for its preparation.[1] See TEX. HEALTH & SAFETY CODE § 574.031(g). You question whether such a commitment hearing must "be recorded by an official shorthand court reporter as provided for by Government Code [section] 52.046." Request Letter at 1. If not, you ask what options a county court conducting a mental health hearing has "to record a hearing under the Mental Health Code." Id.[2]

The U.S. Supreme Court recognizes that "commitment to a mental hospital produces a massive curtailment of liberty, and in consequence requires due process protection." Vitek v. Jones, 445 U.S. 480, 491-92 (1980) (citation and quotation marks omitted). Consistent with this federal protection, the Texas Constitution guarantees that "[n]o person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony" and authorizes the Legislature to "enact all laws necessary to provide for the trial, adjudication of insanity and commitment of persons of unsound mind." TEX. CONST. art. I § 15-a. Chapter 574 of the Health and Safety Code governs court-ordered mental health services, the proceedings about which you ask. See generally TEX. HEALTH & SAFETY CODE §§ 574.001-.203; Request Letter at 1. The proceedings originate "in the statutory or constitutional county court that has the jurisdiction of a probate court in mental illness matters."[3] TEX. HEALTH & SAFETY CODE § 574.008(a); but see id. § 574.031(a) (permitting a judge to hold the hearing at any suitable location in the county in a physical setting not likely to have a harmful effect on the proposed patient). The Legislature also permits a hearing to be conducted by secure electronic means through two-way electronic communication "capable of visually and audibly recording the proceedings" if certain conditions are met. Id. § 574.203(a). At a hearing for extended inpatient or outpatient services, or for temporary services where there is no waiver of the right to cross-examine witnesses, the court must hear testimony, including competent medical or psychiatric testimony, in accordance with the Rules of Evidence. Id. § 574.031(d-1), (d-2), (e). Subsection 574.031(g) provides that "[t]he hearing is on the record, and the state must prove each element of the applicable criteria by clear and convincing evidence." Id. § 574.031(g); see also id. §§ 574.034-.0355 (establishing criteria for commitment for inpatient and outpatient mental health services). Commitment orders, including renewals or modifications of orders, may be appealed. Id. § 574.070(e); see also TEX. CONST. art. I § 15-a (providing that the Legislature may "provide for a method of appeal from judgments rendered in" commitment cases).

In construing a statute, a court's objective is to determine and give effect to legislative intent as expressed by the statute's plain language, an approach which "requires consideration of the language in the specific section, as well as the statute as a whole." Interest of B.C., 592 S.W.3d 133, 136 (Tex. 2019). The Health and Safety Code does not define the phrase "on the record" for purposes of subsection 574.031(g), but a statement, comment, or testimony given "on the record" is commonly understood to be "recorded as official evidence of a proceeding, such as a trial or deposition." BLACK'S LAW DICTIONARY 1263 (10th ed. 2009); see also State ex rel. Best v. Harper, 562 S.W.3d 1, 11 (Tex. 2018) (noting that courts typically look first to dictionary definitions to determine a statutory term's common, ordinary meaning). Where a court conducts a hearing pursuant to secure electronic means rather than in person, "[t]he court shall provide for a recording of the communication to be made and preserved until any appellate proceedings have been concluded." TEX. HEALTH & SAFETY CODE § 574.203(c); see also id. § 574.202(a), (d) (permitting a judge to allow a mental health professional to testify by closed circuit videoconferencing in certain circumstances and stating that "a recording of the testimony . . . shall be made and preserved with the court's record of the hearing"). When read in the context of the statute as a whole, "on the record" for purposes of subsection 574.031(g) must mean a record in a form that would allow appellate review of whether the State met its evidentiary burden. As such, these references suggest that the court has a duty to have such a record made. Cf. Stubbs v. Stubbs, 685 S.W.2d 643, 645-46 (Tex. 1985) (interpreting a statutory directive in the predecessor to Family Code subsection 105.003(c) that "a record shall be made" of a trial affecting the parent-child relationship as placing an affirmative "duty on the court to make a record of proceedings," which means that "all oral testimony must be recorded," and it is "the responsibility of the trial judge to see that the court reporter performs this duty"). The question becomes how a court must accomplish this task.

The Kerr County Court and Court at Law are courts of record and thus must appoint official court reporters. See TEX. CONST. art. V § 15 (establishing a county court in each county "which shall be a court of record"); Ex parte Hayden, 215 S.W.2d 620, 621 (Tex. Crim. App. 1948) (recognizing that courts with original criminal jurisdiction such as county courts, county courts at law, and district courts are courts of record); TEX. GOV'T CODE § 52.041 (providing that the judge of a court of record must appoint an official court reporter). Section 52.046 of the Government Code, about which you ask, sets forth an official court reporter's duties. See TEX. GOV'T CODE § 52.046. "On request, an official court reporter shall," among other duties, "attend all sessions of the court" and "take full shorthand notes of oral testimony offered before the court, including objections made to the admissibility of evidence, court rulings and remarks on the objections, and exceptions to the rulings." Id.[4] Shorthand reporting involves "making a verbatim record . . . using written symbols in shorthand, machine shorthand, or oral stenography." Id. § 52.001(a)(5). Thus, the standard means of producing a reporter's record is by an official court reporter recording court proceedings using shorthand notes.[5]

An "appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record." TEX. R. APP. P. 34.1; see also id. 34.6(b)(1) (providing that an appellant "must request in writing that the official reporter prepare the reporter's record" for the appeal). In a mental commitment appeal, an official court reporter's record takes on particular importance. See Munoz v. State, 569 S.W.2d 642, 643-44 (Tex. App.-Corpus Christi 1978, no writ) (stating that in an appeal from a mental commitment order "based on evidentiary matters, findings of fact and a statement of facts would be necessary for proper review" and referring to the necessity of the court reporter, among others, "to give proper consideration to the matters presented on appeal"); see also TEX. R. APP. P. 34 cmt. (explaining that a court reporter's record was formerly known as a "statement of facts"). Given the heightened due process concerns of mental health proceedings and the duty of the court to have an official record made for appeal purposes, a court would likely conclude that a hearing on an application for court-ordered mental health services in Kerr County must be recorded by the official shorthand court reporter.[6]

[1] Letter from Honorable Heather Stebbins, Kerr Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Dec. 10, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Title 7, subtitle C of the Texas Health and Safety Code is known as the Texas Mental Health Code. See TEX. HEALTH & SAFETY CODE § 571.001.

[3] In Kerr County, the statutory and constitutional county courts concurrently hold "the jurisdiction of a probate court in proceedings under . . . Subtitle C, Title 7, Health and Safety Code." TEX. GOV'T CODE § 25.1352(b)(2) (footnote omitted); see also id. § 25.1351 (establishing one statutory court in Kerr County); TEX. CONST. art. V, § 15 (establishing a county court in every county). Thus, the Kerr County Court and Court at Law have jurisdiction to hear mental health commitment proceedings.

[4] Subsection 52.046(a) preconditions the official court reporter's performance of these duties on a "request," while a similar provision in the Texas Rules of Appellate Procedure governing the duties of official court reporters does not, which has caused a split among courts of appeals regarding whether error is preserved when, absent a request, an official court reporter fails to make a record. See TEX. R. APP. P. 13.1(a) ("The official court reporter . . . must . . . unless excused by agreement of the parties, attend court sessions and make a full record of the proceedings."); Sareen v. Sareen, 350 S.W.3d 314, 316 (Tex. App.-San Antonio 2011, no pet.) (acknowledging the conflict among various courts of appeal regarding who bears the burden on the court reporter's obligation to transcribe the record).

[5] We do not address the making of a record by electronic recording, as Kerr County's courts are not among those authorized by the Texas Supreme Court to record court proceedings electronically. See TEXAS RULES OF COURT VOL. 1 - STATE 397 (Thomson Reuters 2018) ("Rules Governing the Procedure for Making a Record of Court Proceedings by Electronic Recording").

[6] Having determined that subsection 574.031(g) of the Health and Safety Code likely requires a mental health commitment hearing to be recorded by the official court reporter, we need not address your second question regarding alternatives. See Request Letter at 1.

S U M M A R Y

Subsection 574.031(g) of the Health and Safety Code requires that a hearing on an application for court-ordered mental health services be on the record. A court would likely conclude that subsection 574.031(g) imposes a duty on a county court or court at law holding such a hearing in Kerr County to use its official court reporter to make a record of the proceedings.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee