pg. 2

Texas Laws | Mental Health Mental Retardation
I. EMERGENCY DETENTION
C. Ordering Emergency Detention

The warrant will serve as the application for detention in the facility. The warrant and a copy of the application for the warrant shall be immediately transmitted to the facility. {Tex. Health & Safety Code Sec. 573.012(f)}

The period of emergency detention may last a maximum of forty-eight hours from the time the person is presented to the facility, unless a written order for protective custody is obtained. If the forty-eight-hour period ends on a Saturday, Sunday, legal holiday, or before 4:00 p.m. on the first succeeding business day, however, the person may be detained until 4:00 p.m. on the first succeeding business day. If the forty-eight-hour period ends at a different time, the person may be detained only until 4:00 p.m. on the day the forty-eight-hour period ends. {Tex. Health & Safety Code Sec. 573.021(b)}

2. Preliminary Examination

A physician at the facility must conduct a preliminary examination of the detained person within twelve hours from the time the person is apprehended by a police officer or transported by a guardian. {Tex. Health & Safety Code Sec. 573.021(c)}

After the preliminary examination is conducted, continued detention is possible only if the physician who conducted the examination makes a written report that:

a. states that the person is acceptable to the facility; {Tex. Health & Safety Code Sec. 573.022(a)(1)}

b. states that the person is mentally ill; {Tex. Health & Safety Code Sec. 573.022(a)(2)(A)}

c. states that the person presents a substantial risk of serious harm to self or to others; {Tex. Health & Safety Code Sec. 573.022(a)(2)(B)}

d. states that the described risk of harm is imminent unless the person is immediately restrained; {Tex. Health & Safety Code Sec. 573.022(a)(2)(C)}

e. states that emergency detention is the least restrictive means by which the necessary restraint may be accomplished; {Tex. Health & Safety Code Sec. 573.022(a)(2)(D)}

f. describes the nature of the person's mental illness, specifically describes the risk of harm the person poses, as demonstrated either by the person's behavior or by evidence of severe emotional distress and deterioration in the person's mental condition to the extent the person cannot remain at large; and {Tex. Health & Safety Code Sec. 573.022(a)(3)(A)-(B)}

g. specifically describes in detail all information from which the physician formed the opinions. {Tex. Health & Safety Code Sec. 573.022(a)(3)(C)}

3. Transportation

A mental health facility that has admitted a person for emergency detention under this section may transport the person to a mental health facility deemed suitable by the local mental health authority for the area. On the request of the local mental health authority, the judge may order that the proposed patient be detained in a department mental health facility. {Tex. Health & Safety Code Sec. 573.022(b)}

In 2011, the legislature established additional procedures by which mental health patients are to be transported to medical facilities for court-ordered medical services. These changes were likely in response to Attorney General Opinion GA-0753 (2009), which concluded that a mental health facility may not require a peace officer to transport a person in custody under Chapter 573 to a medical facility for medical evaluation prior to taking that person to a mental health facility. Op. Tex. Att'y Gen. GA-0753 (2009).

Effective Sept. 1, 2011, commissioners courts are required to establish and maintain a list of qualified transportation service providers that a county may authorize or with whom a person may contract to transport a person to a mental health facility. {Tex. Health & Safety Code Sec. 574.0455}

The court may authorize, in the following order of priority, transportation of a committed patient or a patient detained for an evaluation to a designated mental health facility by:

a. a special officer for mental health assignment certified under {Tex. Occ. Code Sec. 1701.404};

b. the facility administrator or personnel of the designated mental health facility, if available;

c. a relative or other responsible person who has an interest in the welfare of the patient;

d. a representative of the local mental health authority;

e. a qualified transportation service provider selected from the list established and maintained by commissioners court (as discussed above; see {Tex. Health & Safety Code Sec. 574.0455}); or

f. the sheriff or constable. {Tex. Health & Safety Code Sec. 574.045(a)}

A facility that has admitted a person for emergency detention or to which a person has been transported may transfer the person to an appropriate mental hospital with the written consent of the hospital administrator. {Tex. Health & Safety Code Sec. 573.022(c)}

D. Release from Emergency Detention

{Tex. Health & Safety Code Sec. 573.023}

A person detained by a peace officer without a warrant, by a peace officer with a warrant of apprehension, or transported by a guardian for emergency detention must be released on completion of the preliminary examination, unless the physician who completed the preliminary examination makes the emergency detention report. {Tex. Health & Safety Code Sec. 573.023(a)}

A person subjected to emergency detention must be released if the facility administrator determines at any time during the emergency detention period that any one of the following criteria is no longer applicable: {Tex. Health & Safety Code Sec. 573.023(b)}

1. the person is mentally ill;

2. the person presents a substantial risk of serious harm to self or to others;

3. the described risk of harm is imminent unless the person immediately is restrained; or

4. emergency detention is the least restrictive means by which the necessary restraint may be accomplished. {Tex. Health & Safety Code Sec. 573.022(a)(2)(A)-(D)}

II. PROTECTIVE CUSTODY

{Tex. Health & Safety Code Sec. 574.021-574.028}

A. Nature of Protective Custody Proceeding

An order of protective custody is used to detain a proposed patient pending a hearing on an application for court-ordered mental health services.

B. Motion for Protective Custody

{Tex. Health & Safety Code Sec. 574.021}

1. Where Motion May be Filed

The motion may be filed only in the court in which an application for court-ordered mental health services is pending.

2. Filing the Motion

The motion for protective custody may be filed by the county or district attorney or on the court's own motion.

3. Contents of the Motion

The motion must state that:

a. the movant has an actual and reasonable belief that the proposed patient meets the criteria authorizing the court to order protective custody; and

b. the movant's belief is derived from:

(1) the representations of a credible person;

(2) the proposed patient's conduct; or

(3) the circumstances under which the proposed patient is found.

The motion must be accompanied by a sworn certificate of medical examination for mental illness prepared by a physician who has examined the proposed patient no more than three days before the motion was filed. {Tex. Health & Safety Code Sec. 574.021(d)}

C. Issuing the Protective Custody Order

{Tex. Health & Safety Code Sec. 574.022(a)-(b)}

A protective custody order may be issued if:

1. an application for mental health services is pending; and

2