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Texas Laws | Mental Health Mental Retardation

PART ONE: EMERGENCY DETENTION AND COURT-ORDERED MENTAL HEALTH SERVICES

Published 2012 content (c) Texas Association of Counties -All Rights Reserved-

{Tex. Health & Safety Code Chapter 573}, {Tex. Health & Safety Code Chapter 574}

I. EMERGENCY DETENTION

{Tex. Health & Safety Code Chapter 573}

A. Apprehension by Peace Officer Without a Warrant

{Tex. Health & Safety Code Sec. 573.001}

An officer may take into custody without a warrant any person if the officer has reason to believe and in fact believes that:

1. the person is mentally ill; and

2. the person immediately must be restrained because there is a substantial risk of serious harm to the person or to others.

The peace officer also must believe that there is not enough time to obtain a warrant.

The substantial risk of harm to the person or to others may be shown by:

1. the person's behavior; or

2. evidence of severe emotional distress and deterioration in the person's mental condition to the extent that the person cannot remain at liberty.

The peace officer may conclude that the person poses a substantial risk of harm based upon the following:

1. a representation of a credible person;

2. the person's conduct; or

3. the circumstances under which the person is found.

The peace officer who takes a person into custody must transport the person immediately to:

1. the nearest appropriate inpatient mental health facility; or

2. a facility deemed suitable by the county's mental health authority, if an appropriate inpatient mental health facility is not available.

Note that jails are not considered suitable except in cases of extreme emergency. If the officer must take the person to jail, the person must be kept separate from anyone charged with or convicted of a crime.

The peace officer then must file immediately an application for emergency detention. {Tex. Health & Safety Code Sec. 573.002(a)}

A guardian of an adult ward (18 or older) may, without assistance of an officer, transport the ward to an inpatient mental health facility for a preliminary examination if the guardian has reason to believe and in fact believes that:

1. the ward is mentally ill; and

2. the ward must be restrained because of substantial risk of serious harm to the ward or others. The substantial risk of harm may be demonstrated by the ward's behavior or evidence of severe emotional distress to the ward's mental condition to the extent that the ward cannot remain at large. {Tex. Health & Safety Code Sec. 573.003}

After transporting a ward to a facility, a guardian must immediately file an application for emergency detention. {Tex. Health & Safety Code Sec. 573.004(a)} The requirements for the petition are set out in {Tex. Health & Safety Code Sec. 573.004(b)} and discussed in Part I(B)(2) below.

B. Application for Emergency Detention

1. Filing the Application

Any adult may file a written application for the emergency detention of another person. {Tex. Health & Safety Code Sec. 573.011} The emergency detention procedure allows the applicant, upon a proper showing, to arrange for the detention of another person for a maximum period of forty-eight hours, unless an application for court-ordered mental health services is filed and a written order for protective custody obtained. {Tex. Health & Safety Code Sec. 573.021(b)}

2. Contents of Application

{Tex. Health & Safety Code Sec. 573.011(b)-(c)}

The emergency detention application must:

a. state that the applicant has an actual and reasonable belief that the person shows evidence of mental illness;

b. state that the applicant has an actual and reasonable belief that the person presents a substantial risk of serious harm to self or to others;

c. specifically describe the risk of harm;

d. state that the applicant has an actual and reasonable belief that the risk of harm is imminent unless the person is restrained immediately;

e. state that the applicant's beliefs are derived from specific recent behavior, overt acts, attempts, or threats;

f. specifically describe the behavior, acts, attempts, or threats;

g. specifically describe the applicant's relationship to the person whose detention is sought, or if the applicant is a peace officer, state the name and relationship to the person sought to be detained of any person who reported or observed the behavior, acts, attempts, or threats; and

h. state any other relevant information.

C. Ordering Emergency Detention

{Tex. Health & Safety Code Sec. 573.012}

The applicant (other than a doctor in circumstances described below) personally must present the application to the magistrate, who must examine the application and may interview the applicant.

A judge or magistrate may allow a physician to present an application by e-mail or secure electronic means (including satellite transmission, closed-circuit TV, or any other secure, two-way electronic communication that includes audio and video recording capabilities). {Tex. Health & Safety Code Sec. 573.012(h)}

After presentation of an application, the judge may transmit a warrant to the applicant electronically (if a digital signature as defined by {Tex. Code Crim. Proc. art. 2.26} is transmitted with the document, or by email with the warrant attached as a PDF document if the legal signature of the judge is transmitted with the PDF document. {Tex. Health & Safety Code Sec. 573.012(h-1)}

The magistrate or judge must preserve this recording until the patient is discharged. The patient may obtain a copy after paying reasonable costs for the copy. If the patient is indigent, the court must provide the copy at no charge. {Tex. Health & Safety Code Sec. 573.012(i)}

1. Probate Jurisdiction by Administrative Order

The judge of a court with probate jurisdiction by administrative order may provide that the application must be:

a. presented personally to the court; or

b. retained by court staff and presented to another judge or magistrate as soon as is practicable if the judge is not available when the application is presented. {Tex. Health & Safety Code Sec. 573.012}

If there is more than one court with probate jurisdiction in the county, an administrative order regarding presentation of an application must be jointly issued by all of the judges of those courts. {Tex. Health & Safety Code Sec. 573.012(g)}

The magistrate should issue a warrant for apprehension and an order for emergency detention only if the magistrate finds reasonable cause to believe that:

a. the person is mentally ill; {Tex. Health & Safety Code Sec. 573.012(b)(1)}

b. the person presents a substantial risk of serious harm to self or to others, as demonstrated by the person's behavior or evidence of severe emotional distress and deterioration in the person's mental condition to the extent that the person cannot remain on his own; {Tex. Health & Safety Code Sec. 573.012(b)(2), (c)(1)-(2)}

c. the risk of harm is imminent unless the person is restrained immediately; and {Tex. Health & Safety Code Sec. 573.012(b)(3)}

d. the necessary restraint cannot be accomplished without emergency detention. {Tex. Health & Safety Code Sec. 573.012(c)(4)}

When the magistrate has reasonable cause to believe that all four criteria have been established, the magistrate should sign the order for emergency detention and issue a warrant of apprehension and detention. {Tex. Health & Safety Code Sec. 573.012(d)}

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