Untitled Texas Attorney General Opinion ( 2012 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 23,2012
The Honorable Richard J. Miller Opinion No. GA-0909
Bell County Attorney
Post Office Box 1127 Re: Transportation of a patient after a preliminary
Belton, Texas 76513 examination by a mental health facility (RQ-0990-GA)
Dear Mr. Miller:
You seek an opinion about what "mode of transportation may be used to transport a mentally
ill person to Austin State Hospital ("ASH") or another appropriate facility after a preliminary
examination by a mental health facility."l
You note that section 574.045 of the Health and Safety Code ("Code") provides procedures
and requirements for transportation of a mentally ill person who has been detained under two
sections: sections 573.022 and 574.023. See Request Letter at 1. You describe a situation involving
detention under a third section, section 573.021, under which a mental health facility initially
conducts a preliminary examination of an individual. See id. In the situation you describe, that
mental health facility determines that there is a need to hospitalize the person at ASH or another
similar facility. See id. You state that "[t]here is no court involvement in such scenario, but it is not
clear that the mental health facility is free under such circumstances to arrange for transportation of
the patient on its own without court involvement." Id. You ask "[i]n such [a] situation, maya
patient be taken to ASH or a similar treatment facility by private conveyance arranged for by the
initial health facility rather than requiring a court order under the provisions of Section 574.0457"
ld. 2
The primary concern of statutory construction is to ascertain and effectuate the intent of the
Legislature. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). To
determine that intent, we begin with the language of the statute. See id. "We presume that the
Legislature chooses a statute's language with care, including each word chosen for a purpose, while
purposefully omitting words not chosen." Id. In determining legislative intent, we also consider the
purpose or the "object sought to be obtained." See Tex. Att'y Gen. Op. No. GA-0759 (2010) at 6.
ILetter from Honorable Richard J. Miller, Bell County Attorney, to Honorable Greg Abbott, Attorney General
of Texas at 1 (Aug. 3, 2011), https:llwww.oag.state.tx.us/opin/index_rq.shtm1 ("Request Letter").
2Though the initial statement of your question could suggest you are concerned primarily with only a method
of conveyance, the situation you describe under section 573.021 and your concern about lack of court involvement
suggests you are asking more generally about authority to transport a patient under section 573.021 . It is this question
we address.
The Honorable Richard J. Miller - Page 2 (GA-0909)
We first consider the language of relevant provisions in chapters 573 and 574. Section
574.045 applies to committed patients) or persons detained under only sections 573.022 and
574.023. See TEX. HEALTH & SAFETY CODE ANN. § 574.045(a) (WestSupp. 2011) ("The court may
authorize ... the transportation of a committed patient or a patient detained under Section 573 .022
or 574.023 ... ."). It does not include patients detained under section 573.02l. See id. Moreover,
sections 573.022 and 574.023 themselves authorize, under different circumstances, the transportation
of a mentally ill person to another facility. See id. §§ 573.022(b) ("A mental health facility that
has admitted a person for emergency detention under this section may transport the person to a
mental health facility .... "), 574.023(a) (West 2010) ("A protective custody order shall direct a
person authorized to transport patients under Section 574.045 to take the proposed patient into
protective custody and transport the person immediately to a mental health facility .... "); see also
id. §§ 573.025(a)(6), .026 (West 2010) (requiring transportation under section 573.022 be provided
according to section 574.045). The language of the relevant provisions does not authorize the
transportation of a mentally ill person under section 573.02l.
Moreover, the express inclusion of sections 573.022 and 574.023 within the scope of section
574.045 indicates that the Legislature knows how, and under what circumstances, to provide for the
transportation of detained mentally ill persons, something it has not done with respect to section
573 .021. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000)
(relying on the principle of statutory construction that the Legislature knows how to enact laws
effectuating its intent). We must presume that the Legislature did not include reference to section
573.021 in section 574.045 for a reason. See TGS-NOPEC Geophysical Co., 340 S.W.3d at 439
("We presume that the Legislature chooses a statute's language with care, including ... purposefully
omitting words not chosen."). For us to opine that a mental health facility could employ section
574.045 to transport a mentally ill person detained under section 573.021 would require us to insert
language into the text of section 574.045. We decline to do so. See Energy Servo Co. of Bowie, Inc.
V. Superior Snubbing Servs., Inc., 236 S.W.3d 190, 199 (Tex. 2007) (stating that "[0 Jnly when it is
necessary to give effect to clear legislative intent can we insert, by interpretation, additional words
or requirements into a statutory provision").
While the statutory text resolves your question as explained above, it is appropriate in this
context to consider the purpose of the Code as well. Because a person is deprived of liberty when
involuntarily detained or committed, constitutional due process protections are implicated. See
O'Connor V. Donaldson, 422 U.S. 563, 580 (1975) ("There can be no doubt that involuntary
commitment to a mental hospital ... is a deprivation of liberty which the state cannot accomplish
without due process of law."). The purpose of the Code includes providing access to humane care
and treatment for persons suffering from mental illness and safeguarding the person's legal rights.
See TEX. HEALTH & SAFETY CODE ANN. § 572.002 (West 2010); see also 25 TEX. ADMIN. CODE
§ 404.154 (2011) (Dep't of State Health Services, Rights of All Persons Receiving Mental Health
3The situation you describe involves a person being detained for preliminary examination and thus does not
involve a committed patient who may be involuntarily committed only upon court order. See generally TEx. HEALTH
& SAFETY CODE ANN . §§ 574.034 (West 2010) (authorizing judge to order temporary inpatient mental health services
upon certain findings with clear and convincing evidence), 574.035 (West Supp. 2011) (authorizing court-ordered
extended inpatient mental health services).
The Honorable Richard J. Miller - Page 3 (GA-0909)
Services) (listing rights of persons receiving mental health services). The Code is a complex scheme
that the Legislature implemented to balance those competing purposes.
The sections about which you ask contain provisions that serve the Code's balance between
detention and respect for a person's due process rights. Section 573.022 allows a person to be
detained for emergency mental health treatment but only upon a written statement from a medical
professional based on established standards that the person is in need of those services. See TEX.
HEALTH & SAFETY CODE ANN. § 573.022(a) (West Supp. 2011). And it generally requires the
intervention of a court for subsequent transportation. See id. § 573.022(b). Section 574.023 requires
a court to make judicial findings within a limited period of time before allowing for continued
detention under a protective custody order. See id. §§ 574.023(b) (West 2010) (allowing detention
until hearing is held under section 574.025), 574.025(b) (requiring probable cause hearing "not later
than 72 hours after ... the proposed patient was detained under a protective custody order").
Similarly, section 573.021 serves the balance of interests contemplated by the Code. Under
chapter 573, a person may be detained without a warrant on the observations of a peace officer. Id.
§ 573.001 ("A peace officer, without a warrant, may take a person into custody if the officer ... has
reason to believe and does believe that ... the person is mentally ill" and poses a substantial risk of
harm to themselves or others); see also id. § 573.002(a) (requiring an application for emergency
detention). But section 573.021 authorizes a mental health facility only to temporarily accept, rather
than admit, a person into the facility for the limited purpose of a preliminary examination. Compare
id. § 573.021(a) ("A facility shall temporarily accept a person .... "), with id. § 573.022(a) (West
Supp. 2011) ("A person may be admitted to a facility for emergency detention .... ") (emphasis
added). And section 573.021 generally restricts the emergency detention of the person to no
longer than 48 hours. See id. § 573.021(b) (West 2010). With these requirements, section 573.021
minimizes the deprivation of liberty caused by a warrantless detention. Allowing the initial mental
health facility to transport the person to another mental health facility without court involvement and
absent a physician's written findings that the person is mentally ill and in need of immediate
treatment would thwart the due process protections afforded by the Code and upsets the balance
between medical treatment and protection of legal rights. In addition to construing the plain text of
the statutes in question, as we have done, we must also avoid a conclusion that contravenes the
purpose of the Code. See Nootsie, Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659,662
(Tex. 1996) (stating that courts "reject interpretations of a statute that defeat the purpose of the
legislation so long as another reasonable interpretation exists").
In sum, the language of the relevant provisions of chapters 573 and 574, in addition to the
purposes sought to be achieved by the Code, compel the conclusion that the Legislature intended to
allow for transportation of a mentally ill person to ASH or a similar mental health facility only as
provided by section 574.045. 4
40 nce a preliminary examination under section 573.021 has been conducted and a physician has made the
written statement containing his or her findings required by section 573.022, an initial mental health facility would be
authorized to transport the patient to another mental health facility under sections 573.022 and 574.045.
The Honorable Richard J. Miller - Page 4 (GA-0909)
SUMMARY
The Legislature provides for the transportation of a mentally
ill person under section 574.045, Health and Safety Code. Section
574.045 does not authorize transportation of a person who has been
detained under section 573.021. Accordingly, a person may not,
under section 573.021, be taken to the Austin State Hospital or
similar treatment facility by private conveyance arranged for by the
initial mental health facility that conducted the preliminary
examination of the person.
However, once a preliminary examination under section
573.021 has been conducted and a physician has made the written
statement containing his or her findings required by section 573.022,
an initial mental health facility would be authorized to transport the
patient to another mental health facility under sections 573.022 and
574.045.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee