Texas Laws | Mental Health Mental Retardation |
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The application may also state any other relevant information. C. Ordering Emergency Detention The applicant personally must present the application to a judge or magistrate, who shall examine the application and may interview the applicant. {Tex. Health & Safety Code Sec. 462.043(a)-(f)} The magistrate should issue a warrant of apprehension and an order for emergency detention only if the magistrate finds reasonable cause to believe that: 1. the person is chemically dependent; 2. the person evidences a substantial risk of serious harm to self or to others; 3. the risk of harm is imminent unless the person immediately is restrained; and {Tex. Health & Safety Code Sec. 462.043(b)} 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. 462.043(c)} The warrant and copies of the application must be served on the person as soon as possible and transmitted to the treatment facility. {Tex. Health & Safety Code Sec. 462.043(e)} The period of emergency detention may last a maximum of twenty-four hours from the time the person is presented to the facility; however, if the twenty-four-hour period ends on a Saturday, Sunday, or legal holiday, the person may be detained until 4:00 p.m. on the next day that is not a Saturday, Sunday, or legal holiday. The detention may be continued after twenty-four hours, however, if the court issues an order of protective custody pending the hearing on the application for court-ordered treatment. {Tex. Health & Safety Code Sec. 462.045} D. Preliminary Examination and Information that Must be Provided Upon presentation to the treatment facility, a physician at the facility is required to conduct a preliminary examination of the detained person. The examination must take place as soon as possible within twenty-four hours from the time the person is apprehended by a peace officer. {Tex. Health & Safety Code Sec. 462.044} After the preliminary examination is conducted, continued detention is possible only if the physician who conducted the examination makes a written report stating that: 1. the person is chemically dependent; 2. the person evidences a substantial risk of serious harm to self or to others; 3. the described risk is imminent unless the person immediately is restrained; and 4. the necessary restraint cannot be accomplished without emergency detention. {Tex. Health & Safety Code Sec. 462.044(b)}, {Tex. Health & Safety Code Sec. 462.043(b)} The person must be released on completion of the preliminary examination if the examining physician does not state in writing that the person meets the criteria for emergency commitment. {Tex. Health & Safety Code Sec. 462.044(b)} The personnel at the treatment facility immediately must advise the person presented for a preliminary examination, orally, in writing, and in simple, nontechnical terms, that: 1. the person may be detained for treatment for not longer than twenty-four hours after the time of the initial detention unless an order for further detention is obtained; 2. if the administrator finds that the statutory criteria for emergency detention no longer apply, the administrator must release the person; 3. not later than the twenty-fourth hour after the hour of the initial detention, the facility administrator may file in a court having original jurisdiction a petition to have the person committed for court-ordered treatment; 4. if the administrator files a petition for court-ordered treatment, the person is entitled to a judicial probable cause hearing not later than seventy-two hours after the hour the detention begins under an order of protective custody to determine whether the person should remain detained in the facility; 5. when the application for court-ordered services is filed, the person has the right to have counsel appointed if the person does not have an attorney; 6. the person has the right to communicate with counsel at any reasonable time and to have assistance in contacting the counsel; 7. the person's communications to the personnel of the treatment facility may be used in making a determination relating to detention, may result in the filing of a petition for court-ordered treatment, and may be used at a court hearing; 8. the person is entitled to present evidence and to cross-examine witnesses who testify on behalf of the petitioner at a hearing; 9. the person may refuse medication unless there is an imminent likelihood of serious physical injury to the person or others if the medication is refused; 10. beginning on the twenty-fourth hour before a hearing for court-ordered treatment, the person may refuse to take medication unless the medication is necessary to save the person's life; and 11. the person is entitled to request that a hearing be held in the county of the person's residence, if the county is in Texas. {Tex. Health & Safety Code Sec. 462.046(a)} E. Rights of the Person Detained Pursuant to an Order of Emergency Detention {Tex. Health & Safety Code Sec. 462.048} Within twenty-four hours after the time of admission, the person apprehended and detained must be advised, orally, in writing, and in simple, nontechnical terms, of the person's right: 1. to be advised of the location of detention, the reasons for the detention, and the fact that detention could result in a longer period of involuntary commitment; 2. to contact an attorney of the person's choice and to be given a reasonable opportunity to contact that attorney; 3. to be transported to the location of apprehension or other suitable place if the person is not admitted for emergency detention, unless the person is arrested or objects to the return; 4. to be released from a facility upon a determination at any time during the emergency detention that the person does not meet the criteria for emergency detention; and 5. to be advised that communications to a chemical dependency treatment professional may be used in proceedings for further detention. {Tex. Health & Safety Code Sec. 462.047} A person subject to emergency detention must be released if the facility administrator determines at any time during the emergency detention that any one of the criteria for emergency detention no longer applies. If a person is released from emergency detention and is not arrested and does not object, arrangements shall be made to return the person to the location of apprehension or other suitable place. A. Nature of Protective Custody An order of protective custody is used to detain a proposed patient pending a final hearing on an application for court-ordered treatment. B. Motion for Protective Custody {Tex. Health & Safety Code Sec. 462.065(a)} The motion may be filed only in the court in which an application for court-ordered treatment is pending. {Tex. Health & Safety Code Sec. 462.065(a)} The motion for protective custody may be filed by the county or district attorney or on the court's own motion. a. the movant has an actual and reasonable belief that the proposed patient meets the criteria authorizing the court to order protective custody; and
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