Untitled Texas Attorney General Opinion ( 1975 )

October 10, 1975
The Honorable Ted Butler Opinion No. H- 714
Criminal District Attorney
County of Bexar Re: Whether a writ of habeas corpus
San Antonio, Texas 78204 is available to a proposed patient
under an.order for protective custody
pursuant to article 556lc-1, V. T. C. S.
Dear Mr. Butler:
You have requested our opinion concerning whether a writ of habeas corpus
is available to a proposed alcoholic patient under an order for protective custody.
Article 5561c, section 9(c), V. T. C. S., provides that upon the filing of a
petition and a Certificate of Medical Examination for Alcoholism which states,
that it is:
the opinion of the examining physician that the
proposed patient is an alcoholic and because
of his alcoholism is likely to cause injury to
himself or others if not immediately restrained,
the Judge may order any health or peace officer
to take the proposed patient into protective custody. . . .
While section 11 of article 5561~ recognizes the availability of a writ of habeas
corpus for one committed to the Texas Commistiion on Alcoholism, it contains no
provision which would authorize the issuance of a writ of habeas corpus for one
in protective custody under section 9(c).
However, article 1, section 12 of the Texas Constitution provides:
The’writ of habeas corpus is a writ of right,
and shall never be suspended. The Legislature shall
enact laws to render the remedy speedy and effectual.
In our opinion this provision of the Texas Constitution provides the remedy
of habeas corpus to persons held in protective custody pursuant to article 5561c,
p. 3068
The Honorable Ted Butler - page 2 (H-714)
section 9(c). See Code Grim. Proc. arts. 11.01 and 11.64; Ex parte Ramzy, 424
S.W.2d 220 (TzSup. 1968); Ex parte Calhoun, 91 S.W.2d 1047 (Tex. Sup. 1936);
Strode v. Silverman, 217 S.W.2d 454 (Tex. Civ. App. --Waco 1949, writ ref’d).
Of course, the issue at a habeas corpus hearing is the legality of the custody in-
volved. Clark v. Matthews, 5 S.W.2d 221 (Tex. Civ. App. --San Antonio 1928, no
writ).
SUMMARY
A writ of habeas corpus is available to
a proposed alcoholic patient held under a
writ of protective custody.
*Very truly yours,
Attorney General of Texas
APPROVED:
Opinion Committee
jad:
p. 3069