Chapter 16 

Mental Health and Involuntary Commitment

§ 16.1Scope of Chapter

Attorneys representing clients facing inpatient commitment for mental-health services are well advised to (1) develop a basic understanding of common psychiatric conditions and the treat­ments available for such conditions, (2) review the laws associated with the commitment pro­cess and understand the full scope of rights belonging to proposed patients, (3) understand the impact of involuntary commitment, and (4) recognize the options available to their clients and the consequences associated with each option.

Attorneys practicing in mental health should be aware of the most common forms of mental ill­ness that present in patients facing involuntary commitment. An explanation of such common forms is set out at sections 16.2 through 16.2:3 below. A basic question facing the families of those experiencing a mental-health crisis is how to get help for their loved ones. Persons receiv­ing treatment for a mental-health crisis will receive it either voluntarily or involuntarily. This chapter does not address patients who enter the mental-health system voluntarily. Sections 16.3 through 16.3:4 explain how proposed patients enter the mental-health system involun­tarily—either with or without a mental-health warrant.

When the patient is presented to a mental-health facility, an application for court-ordered mental-health services may be filed, triggering the appointment of an attorney ad litem, the setting of a probable cause hearing and a final hearing, and the service of notice on the proposed patient, as detailed at sections 16.4 through 16.4:8.

Once the proposed patient is in the hospital and evaluated by a physician for the purpose of pre­paring a certificate of medical examination for mental health, a motion for an order of protec­tive custody may be filed. Sections 16.5 through 16.5:3 address the criteria required for deten­tion, important timelines, and proper transporta­tion upon release of the proposed patient. The hearing on the motion for an order of protective custody is called a “probable cause” hearing and is discussed at sections 16.6 through 16.6:4. Importantly, section 16.7 sets out the rights of the proposed patient.

Information regarding the hearing on the appli­cation for court-ordered mental-health services, or final hearing, is set out at sections 16.8 through 16.8:6; sections 16.9 through 16.9:4 describe the health-care facilities to which patients may be committed and discuss the requirements associated with transporting the patient. Sections 16.10 through 16.10:7 discuss postcommitment proceedings, including modifi­cations to the court order, motions for reexam­ination, and appeals. A continuing care plan, furlough, discharge, and termination of court-ordered mental-health services are covered at sections 16.11 through 16.11:6.

When a patient who is involuntarily committed refuses to comply with the physician’s orders regarding the administration of psychoactive medication, the physician may file with the court an application for an order authorizing such administration. Details regarding the appli­cation, hearing, and order, along with informa­tion regarding the patient’s rights, are included at sections 16.12 through 16.12:5.

The long-term consequences associated with involuntary commitment can be very impactful on the liberties of the patient and perhaps even the patient’s ability to work in his chosen pro­fession. Such consequences are explained at sec­tions 16.13 through 16.13:4. Finally, sections 16.14 through 16.14:4 set out several options available to clients facing involuntary commit­ment, including practice tips for attorneys.

§ 16.1:1Mental Health and Guardianship

Persons who are mentally ill are not always incapacitated, and incapacitated persons are not always mentally ill. Generally speaking, a per­son suffering from mental illness will not always necessarily require a guardian. Only a small percentage of persons cycling through the involuntary commitment process have a guard­ian of their person appointed. Some practitioners believe that incapacitated, mentally ill persons who face involuntary commitment on a regular basis may be improper candidates for guardian­ship, especially if they refuse to comply with treatment, lack insight into their conditions, and cannot be located for long periods of time. To support this belief, they might point to Texas Estates Code section 1151.051, which places on guardians the duty to provide care, supervision, and protection for the ward and to provide the ward with clothing, food, medical care, and shelter. Thus, if the ward is noncompliant with medication and cannot be put in a permanent placement, the guardian cannot fulfill his duties to the ward and so risks removal.

There are several compelling reasons to con­sider a guardianship for an incapacitated, men­tally ill person facing involuntary commitment. First, the guardian of a ward’s person has the power to consent to medical, psychiatric, and surgical treatment other than the inpatient psy­chiatric commitment of the ward. See Tex. Est. Code § 1151.051. Even though the guardian cannot consent to the commitment of the ward, the guardian may consent to the administration of psychiatric treatment, including the adminis­tration of medication, obviating the need for an application for an order to authorize psychoac­tive medication and thus avoiding the resulting delay in treatment.

Second, when an incapacitated, mentally ill per­son who is under guardianship cannot be located for long periods of time and refuses to accept permanent placement, and such a person turns up in a hospital or is detained in the criminal jus­tice system, the guardian is either notified of, or has the right to be informed of, the ward’s loca­tion. See Tex. Health & Safety Code § 573.0021. The guardian is then able to communicate with the physician treating the ward and consent to the administration of psychoactive medication, curbing the decompensation of the ward that would inevitably result if treatment were delayed until a court ordered the onboarding of psychoactive medication.

Third, only the guardian of a proposed patient’s person or a peace officer may transport a ward to an inpatient mental-health facility to be exam­ined for the purpose of preparing a certificate of medical examination for mental health and initi­ating the involuntary commitment process, as discussed at section 16.3:2 below.

§ 16.1:2Increase in Mental-Health Awareness

Increased suicides among veterans, rampant use of opioids as self-medication techniques, and epidemic homelessness have fueled a ground­swell of public support, and even demand, for government programs designed to treat the men­tally ill. For example, in 2019 the Texas legisla­ture responded to the growing demand for increased access to mental-health services among veterans by passing Senate Bill 822, which created a commission to administer a grant program that supports community mental-health programs for veterans and their families. S.B. 822 was signed into law and is effective as of September 1, 2019. See Tex. Gov’t Code § 531.0992(c), (d), (d–1), (d–2). Measures such as this, along with increased funding for mental health, will ultimately lead to a higher demand for attorneys who can efficiently and effectively represent clients facing involuntary commit­ment.

§ 16.2What Constitutes Mental Illness

A mental illness is an illness, disease, or condi­tion, other than epilepsy, dementia, substance abuse, or intellectual disability, that substan­tially impairs a person’s thought, perception of reality, emotional process, or judgment or grossly impairs behavior as demonstrated by recent disturbed behavior. Tex. Health & Safety Code § 571.003(14). Patients facing mental-health commitment present several forms of mental illness. The most common forms include mood disorders, such as depression and bipolar disorder, and psychotic disorders such as schizo­phrenia, schizoaffective disorder, and psychosis not otherwise specified.

§ 16.2:1Depression

To be diagnosed with depression, an individual must be experiencing five or more of the follow­ing symptoms during the same two-week period, at least one of which should be either depressed mood or loss of interest or pleasure: (1) depressed mood most of the day, nearly every day; (2) markedly diminished interest or plea­sure in all, or almost all, activities most of the day, nearly every day; (3) significant weight loss when not dieting or weight gain, or decrease or increase in appetite nearly every day; (4) insom­nia; (5) a slowing down of thought and a reduc­tion of physical movement (observable by others, not merely subjective feelings of rest­lessness or being slowed down); (5) fatigue or loss of energy nearly every day; (6) feelings of worthlessness or excessive or inappropriate guilt nearly every day; (7) diminished ability to think or concentrate, or indecisiveness, nearly every day; and (8) recurrent thoughts of death, recur­rent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for commit­ting suicide. See American Psychiatric Associa­tion, Diagnostic & Statistical Manual of Mental Disorders 161 (5th ed. 2013).

§ 16.2:2Bipolar Disorder

Bipolar disorder is characterized by mood swings vacillating between depression and mania. Each phase of the mood swing can last moments, days, or months. See American Psy­chiatric Association, Diagnostic & Statistical Manual of Mental Disorders 123–25 (5th ed. 2013).

§ 16.2:3Psychosis and Schizophrenia

A person suffering from a psychotic disorder, including schizophrenia, may experience delu­sions, hallucinations, disorganized thinking, and grossly disorganized or abnormal motor behav­ior, including catatonia. The person may also experience “negative” symptoms such as dimin­ished emotional expression or a decrease in self-initiated purposeful activities. See American Psychiatric Association, Diagnostic & Statisti­cal Manual of Mental Disorders 87–88 (5th ed. 2013).

Delusions are strongly held, sustained, false beliefs that are maintained by the patient despite obvious proof to the contrary. The most com­mon type of delusion is a persecutory delusion, where one believes he is going to be harmed or harassed. Other types of delusions include refer­ential (the belief that certain gestures, com­ments, or environmental cues are directed at oneself); grandiose (when an individual believes that he has exceptional wealth, abilities, or fame); erotomanic (when an individual falsely believes another person is in love with him); nihilistic (a conviction that a major catastrophe will occur); and somatic (a preoccupation with health and organ function). See Diagnostic & Statistical Manual of Mental Disorders 87.

While delusions involve strongly held beliefs, hallucinations are defined as sensory perception in the absence of external stimuli. The most common hallucinations include auditory halluci­nations, in which a person hears voices. How­ever, hallucinations may involve any of the senses. See Diagnostic & Statistical Manual of Mental Disorders 87.

Catatonia presents in either of two ways. The first is a marked decrease in reactivity to the environment. This could present with a resis­tance to instructions or a complete lack of verbal and motor responses. Alternatively, a person experiencing catatonic excitement exhibits excessive motor activity without purpose. See Diagnostic & Statistical Manual of Mental Dis­orders 88.

Thought disorder involves a disturbance of the mind that is usually manifested in a person’s speech. A person may switch from topic to topic when communicating or respond to questions with nonrelated answers. In severe cases, speech may be so disorganized that it is incomprehensi­ble, resulting in a communication sometimes described as “word salad.” See Diagnostic & Statistical Manual of Mental Disorders 88.

§ 16.3Emergency Detention and Apprehension

There are two types of emergency detention and apprehension: with and without a warrant. Emergency detention without a warrant may be accomplished by either a peace officer or a guardian of a ward’s person. See Tex. Health & Safety Code § 573.001. Detention with a war­rant results when any adult makes application for an order for emergency apprehension and detention, commonly referred to as a “mental health warrant,” and successfully demonstrates to a judge or magistrate that he has a factual basis to believe, and does believe, that the pro­posed patient is mentally ill and, as a result, rep­resents a substantial risk of serious harm to himself or others. See Tex. Health & Safety Code § 573.001.

§ 16.3:1Apprehension by Peace Officer without Warrant

A peace officer, without a warrant, may take a person into custody if the officer (1) has reason to believe and does believe that (a) the person is a person with mental illness and (b) because of that mental illness there is a substantial risk of serious harm to the person or to others unless the person is immediately restrained; and (2) believes that there is not sufficient time to obtain a warrant before taking the person into custody. Tex. Health & Safety Code § 573.001.

A substantial risk of serious harm to the person or others may be 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 at liberty. The peace officer may form the belief that the person meets the criteria for apprehension from a representation of a credible person or based on the conduct of the appre­hended person or the circumstances under which the apprehended person is found. Tex. Health & Safety Code § 573.001(b), (c).

A peace officer who takes a person into custody shall immediately transport the apprehended person to the nearest appropriate inpatient men­tal-health facility. Tex. Health & Safety Code § 573.001(d). A jail or similar detention facility may not be deemed suitable except in an extreme emergency, and a person detained in a jail or a nonmedical facility shall be kept sepa­rate from any person who is charged with or convicted of a crime. Tex. Health & Safety Code § 573.001(e), (f).

As soon as practicable, but not later than the first working day after the date a peace officer takes a person who is a ward into custody, the peace officer shall notify the court having jurisdiction over the ward’s guardianship of the ward’s detention or transportation to a facility. Tex. Health & Safety Code § 573.0021.

§ 16.3:2Guardian’s Application for Emergency Detention

A guardian of the person of a ward who is eight­teen years of age or older, without the assistance of a peace officer, may transport the ward to an inpatient mental-health facility for a preliminary examination, as described at section 16.3:1 above, if the guardian has reason to believe and does believe that the ward is a person with men­tal illness and, because of that mental illness, there is a substantial risk of serious harm to the ward or to others unless the ward is immediately restrained. A substantial risk of serious harm to the ward or others may be demonstrated by the ward’s behavior or evidence of severe emotional distress and deterioration in the ward’s mental condition to the extent that the ward cannot remain at liberty. Tex. Health & Safety Code § 573.003.

After transporting a ward to a facility, a guard­ian shall immediately file an application for detention with the facility. The application for detention must contain (1) a statement that the guardian has reason to believe and does believe that the ward evidences mental illness; (2) a statement that the guardian has reason to believe and does believe that the ward evidences a sub­stantial risk of serious harm to the ward or oth­ers; (3) a specific description of the risk of harm;  (4) a statement that the guardian has reason to believe and does believe that the risk of harm is  imminent unless the ward is immediately restrained; (5) a statement that the guardian’s beliefs are derived from specific recent behav­ior, overt acts, attempts, or threats that were observed by the guardian; and (6) a detailed description of the specific behavior, acts, attempts, or threats. The guardian shall immedi­ately provide written notice of the filing of an application to the court that granted the guard­ianship. Tex. Health & Safety Code § 573.004.

§ 16.3:3Apprehension and Detention with Warrant

An adult may file a written application for the emergency detention of another person. The application must state (1) that the applicant has reason to believe and does believe that the per­son evidences mental illness; (2) that the appli­cant has reason to believe and does believe that the person evidences a substantial risk of serious harm to himself or others; (3) a specific descrip­tion of the risk of harm; (4) that the applicant has reason to believe and does believe that the risk of harm is imminent unless the person is immediately restrained; (5) that the applicant’s beliefs are derived from specific recent behav­ior, overt acts, attempts, or threats; (6) a detailed description of the specific behavior, acts, attempts, or threats; and (7) a detailed descrip­tion of the applicant’s relationship to the person whose detention is sought. The application may be accompanied by any relevant information. Tex. Health & Safety Code § 573.011.

§ 16.3:4Issuance of Warrant

An applicant for emergency detention must present the application personally to a judge or magistrate unless the applicant is a physician, in which case the application may be sent as a por­table document format (PDF) file via email or other secure electronic means. The judge or magistrate shall examine the application and may interview the applicant. Tex. Health & Safety Code § 573.012.

The judge or magistrate shall deny the applica­tion unless the magistrate finds that there is rea­sonable cause to believe that (1) the person evidences mental illness, (2) the person evi­dences a substantial risk of serious harm to him­self or others, (3) the risk of harm is imminent unless the person is immediately restrained, and (4) the necessary restraint cannot be accom­plished without emergency detention. A sub­stantial risk of serious harm to the person or others may be 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 at liberty. However, the magistrate or judge shall issue to an on-duty peace officer a warrant for the person’s immediate apprehen­sion if the magistrate finds that each of the four criteria discussed above are satisfied. Tex. Health & Safety Code § 573.012.

A person apprehended pursuant to a warrant shall be transported for a preliminary examina­tion to the nearest appropriate inpatient mental-health facility, or a mental-health facility deemed suitable by the local mental-health authority if an appropriate inpatient mental-health facility is not available. The warrant serves as an application for detention in the facility. The warrant and a copy of the applica­tion for the warrant shall be immediately trans­mitted to the facility. The patient may obtain a copy of such documents on payment of a rea­sonable amount to cover the costs of reproduc­tion or, if the patient or proposed patient is indigent, the court shall provide a copy on the request of the patient or proposed patient with­out charging a cost for the copy. Tex. Health & Safety Code § 573.012.

§ 16.4Court-Ordered Mental-Health Services

When the patient presents to a mental-health facility, the filing of an application for court-ordered mental-health services may be made following an assessment and determination of the patient’s need for such services. This filing sets off a series of events including the appoint­ment of an attorney ad litem, the setting of final hearing, and service of notice on the proposed patient.

§ 16.4:1Application for Court-Ordered Mental-Health Services

A county or district attorney or other adult may file a sworn written application for court-ordered mental-health services. Only the district or county attorney may file an application that is not accompanied by a certificate of medical examination for mental health. Unless the pro­posed patient is a child in the custody of the Texas Juvenile Justice Department, the applica­tion must be filed with the county clerk in the county in which the proposed patient (1) resides, (2) is found, or (3) is receiving mental-health services by court order for emergency apprehen­sion and detention. Tex. Health & Safety Code § 574.001.

If the application is not filed in the county in which the proposed patient resides, the court may, on request of the proposed patient or the proposed patient’s attorney and if good cause is shown, transfer the application to that county. An application may be transferred to the county in which the person is being detained if the county to which the application is to be trans­ferred approves the transfer. See Tex. Health & Safety Code § 574.001. 

§ 16.4:2Form of Application

An application for court-ordered mental-health services must be styled using the proposed patient’s initials and not the proposed patient’s full name. The application must state whether the application is for temporary or extended mental-health services. An application for extended inpatient mental-health services must state that the person has received court-ordered inpatient mental-health services, in the form of involuntary commitment to a mental-health facility, for at least sixty consecutive days during the preceding twelve months. An appli­cation for extended outpatient mental-health ser­vices must state that the person has received court-ordered inpatient mental-health services, in the form of involuntary commitment, for a total of at least sixty days during the preceding twelve months or court-ordered outpatient men­tal-health services during the preceding sixty days. Any application must contain the follow­ing information according to the applicant’s information and belief: (1) the proposed patient’s name and address, (2) the proposed patient’s county of residence in Texas, (3) a statement that the proposed patient is a person with mental illness and meets the criteria pre­scribed for the form of mental-health commit­ment sought (inpatient versus outpatient and temporary versus extended) for court-ordered mental-health services, and (4) whether the pro­posed patient is charged with a criminal offense. Tex. Health & Safety Code § 574.002.

§ 16.4:3Appointment and Duties of Attorney

The judge shall appoint an attorney to represent a proposed patient within twenty-four hours after the time an application for court-ordered mental-health services is filed if the proposed patient does not have an attorney. At that time, the judge shall also appoint a language or sign interpreter, if necessary, to ensure effective communication with the attorney in the pro­posed patient’s primary language. The court shall inform the attorney in writing of the attor­ney’s duties. The proposed patient’s attorney shall be furnished with all records and papers in the case and is entitled to have access to all hos­pital and physicians’ records. Tex. Health & Safety Code § 574.003.

Following are the duties of the attorney repre­senting a proposed patient:

(a)  An attorney representing a pro­posed patient shall interview the pro­posed patient within a reasonable time before the date of the hearing on the application.

(b)  The attorney shall thoroughly discuss with the proposed patient the law and facts of the case, the pro­posed patient’s options, and the grounds on which the court-ordered mental health services are being sought. A court-appointed attorney shall also inform the proposed patient that the proposed patient may obtain personal legal counsel at the pro­posed patient’s expense instead of accepting the court-appointed coun­sel.

(c)  The attorney may advise the pro­posed patient of the wisdom of agree­ing to or resisting efforts to provide mental health services, but the pro­posed patient shall make the decision to agree to or resist the efforts. Regardless of an attorney’s personal opinion, the attorney shall use all rea­sonable efforts within the bounds of law to advocate the proposed patient’s right to avoid court-ordered mental health services if the proposed patient expresses a desire to avoid the services. If the proposed patient desires, the attorney shall advocate for the least restrictive treatment alternatives to court-ordered inpatient mental health services.

(d)  Before a hearing, the attorney shall:

(1)review the application, the certificates of medical examination for mental health, and the proposed patient’s relevant medical records;

(2)interview supporting wit­nesses and other witnesses who will testify at the hearing; and

(3)explore the least restric­tive treatment alternatives to court-ordered inpatient mental health services.

(e)  The attorney shall advise the pro­posed patient of the proposed patient’s right to attend a hearing or to waive the right to attend a hearing and shall inform the court why a pro­posed patient is absent from a hear­ing.

(f)  The attorney shall discuss with the proposed patient:

(1)the procedures for appeal, release, and discharge if the court orders participa­tion in mental health ser­vices; and

(2)other rights the proposed patient may have during the period of the court’s order.

(g)  To withdraw from a case after interviewing a proposed patient, an attorney must file a motion to with­draw with the court. The court shall act on the motion as soon as possible. An attorney may not withdraw from a case unless the withdrawal is autho­rized by court order.

(h)  The attorney is responsible for a person’s legal representation until:

(1)the application is dis­missed;

(2)an appeal from an order directing treatment is taken;

(3)the time for giving notice of appeal expires by oper­ation of law; or

(4)another attorney assumes responsibility for the case.

Tex. Health & Safety Code § 574.004.

§ 16.4:4Setting of Application for Final Hearing

The judge or a magistrate shall set a date for a final hearing to be held within fourteen days after the date on which the application is filed. The hearing may not be held during the first three days after the application is filed if the pro­posed patient or the proposed patient’s attorney objects. The court may grant one or more con­tinuances of the hearing on motion by a party and for good cause shown or on agreement of the parties. However, the hearing shall be held not later than the thirtieth day after the date on which the original application is filed. If extremely hazardous weather conditions exist or a disaster occurs that threatens the safety of the proposed patient or other essential parties to the hearing, the judge or magistrate may, by written order made each day, postpone the hearing for twenty-four hours. The written order must declare that an emergency exists because of the weather or the occurrence of a disaster. Tex. Health & Safety Code § 574.005.

§ 16.4:5Notice and Disclosure of Information

The proposed patient and his attorney are enti­tled to receive a copy of the application and written notice of the time and place of the hear­ing immediately after the date for the hearing is set. A copy of the application and the written notice shall be delivered in person or sent by certified mail to the proposed patient’s (1) par­ent, if the proposed patient is a minor; (2) appointed guardian, if the proposed patient is the subject of a guardianship; or (3) each managing and possessory conservator that has been appointed for the proposed patient. Notice may be given to the proposed patient’s next of kin if the relative is the applicant and the parent can­not be located and a guardian or conservator has not been appointed. Tex. Health & Safety Code § 574.006.

Notice of the time and place of any hearing and of the name, telephone number, and address of any attorneys known or believed to represent the state or the proposed patient shall be furnished to any person stating that that person has evi­dence to present on any medical issue. The notice shall not include the application, medical records, names or addresses of other potential witnesses, or any other information whatever. Any clerk, judge, magistrate, court coordinator, or other officer of the court shall provide the information and shall be entitled to judicial immunity in any civil suit seeking damages as a result of providing the notice. Should such evi­dence be offered at trial and the adverse party claim surprise, the hearing may be continued under the provisions of section 574.005 of the Texas Health and Safety Code, and the person producing the evidence shall be entitled to timely notice of the date and time of the continu­ance. Any officer, employee, or agent of the department shall refer any inquiring person to the court authorized to provide the notice if such information is in the possession of the depart­ment. The notice shall be provided in the form that is most understandable to the person mak­ing the inquiry. Tex. Health & Safety Code § 574.006(d).

The proposed patient’s attorney may request information from the county or district attorney as provided below if the attorney cannot other­wise obtain the information. If the proposed patient’s attorney requests the information at least forty-eight hours before the time set for the hearing, the county or district attorney shall, within a reasonable time before the hearing, pro­vide the attorney with a statement that includes (1) the provisions set out in Tex. Health & Safety Code § 574.007 that will be relied on at the hearing to establish that the proposed patient requires court-ordered temporary or extended inpatient mental-health services; (2) the reasons voluntary outpatient services are not considered appropriate for the proposed patient; (3) the name, address, and telephone number of each witness who may testify at the hearing; (4) a brief description of the reasons court-ordered temporary or extended inpatient or outpatient, as appropriate, mental-health services are required; and (5) a list of any acts committed by the pro­posed patient that the applicant will attempt to prove at the hearing. Tex. Health & Safety Code § 574.007(a), (b).

At the hearing, the judge may admit evidence or testimony that relates to matters not disclosed pursuant to Tex. Health & Safety Code § 574.007 if the admission would not deprive the proposed patient of a fair opportunity to con­test the evidence or testimony. Unless the pro­posed patient (orally and in the presence of the court or in writing and sworn under oath along with the patient’s attorney), the proposed patient’s attorney, and the county or district attorney agree otherwise, not later than forty-eight hours before the time set for the hearing on the petition for commitment, the county or dis­trict attorney shall inform the proposed patient through the proposed patient’s attorney whether the county or district attorney will request that the proposed patient be committed to inpatient services or outpatient services. Tex. Health & Safety Code § 574.007(c), (d).

§ 16.4:6Court Jurisdiction, Transfer, and Associate Judges

A proceeding for court-ordered mental-health services or postcommitment proceedings must be held in the statutory or constitutional county court that has the jurisdiction of a probate court in mental-illness matters. If the hearing is to be held in a county court in which the judge is not a licensed attorney, the proposed patient or the proposed patient’s attorney may request that the proceeding be transferred to a court with a judge who is licensed to practice law in Texas. The county judge shall transfer the case after receiv­ing the request, and the receiving court shall hear the case as if it had been originally filed in that court. If a patient is receiving temporary inpatient mental-health services in a county other than the county that initiated the court-ordered inpatient mental-health services and the patient requires extended inpatient mental-health services, the county in which the proceed­ings originated shall pay the expenses of trans­porting the patient back to the county for the hearing unless the court that entered the tempo­rary order arranges with the appropriate court in the county in which the patient is receiving ser­vices to hold the hearing on court-ordered extended inpatient mental-health services before the original order expires. If an order for outpa­tient services designates that the services be pro­vided in a county other than the county in which the order was initiated, the court shall transfer the case to the appropriate court in the county in which the services are being provided. That court shall thereafter have exclusive, continuing jurisdiction of the case, including the receipt of the general treatment program required by Texas Health and Safety Code section 574.037(b). Tex. Health & Safety Code § 574.008.

The county judge may appoint a full-time or a part-time associate judge to preside over the proceedings for court-ordered mental-health ser­vices if the commissioner’s court of a county in which the court has jurisdiction authorizes the employment of an associate judge. To be eligi­ble for appointment as an associate judge, a per­son must be a Texas resident and have been licensed to practice law in Texas for at least four years or be a retired county judge, statutory or constitutional, with at least ten years of service. Tex. Health & Safety Code § 574.0085(a), (b). To refer cases to an associate judge, the referring court must issue an order of referral. The order of referral may limit the power or duties of an associate judge. Except as limited by an order of referral, an associate judge has all the powers and duties set forth in Tex. Fam. Code § 201.007. Tex. Health & Safety Code § 574.0085(e), (f).

At the conclusion of any hearing conducted by an associate judge and on the preparation of an associate judge’s report, the associate judge shall transmit to the referring court all papers relating to the case, with the associate judge’s signed and dated report. After the associate judge’s report has been signed, the associate judge shall give to the parties participating in the hearing notice of the substance of the report. The associate judge’s report may contain the associate judge’s findings, conclusions, or rec­ommendations. The associate judge’s report must be in writing in a form as the referring court may direct. The form may be a notation on the referring court’s docket sheet. After the associate judge’s report is filed, the referring court may adopt, approve, or reject the associate judge’s report, hear further evidence, or recom­mit the matter for further proceedings as the referring court considers proper and necessary in the particular circumstances of the case. If a jury trial is demanded or required, the associate judge shall refer the entire matter back to the referring court for trial. An associate judge appointed under this Code section has the judi­cial immunity of a county judge. An associate judge appointed in accordance with this section shall comply with the Code of Judicial Conduct in the same manner as the county judge. Tex. Health & Safety Code § 574.0085(i)–(l).

§ 16.4:7Medical Examination and Independent Psychiatric Evaluation

A hearing on an application for court-ordered mental-health services may not be held unless there are on file with the court at least two certif­icates of medical examination for mental health completed by different physicians, each of whom has examined the proposed patient during the preceding thirty days. At least one of the physicians must be a psychiatrist if a psychia­trist is available in the county. Tex. Health & Safety Code § 574.009(a).

If the certificates are not filed with the applica­tion, the judge or magistrate may appoint the necessary physicians to examine the proposed patient and file the certificates. The judge or designated magistrate may order the proposed patient to submit to the examination and may issue a warrant authorizing a peace officer to take the proposed patient into custody for the examination. If the certificates required under this section are not on file at the time set for the hearing on the application, the judge shall dis­miss the application and order the immediate release of the proposed patient if that person is not at liberty. If extremely hazardous weather conditions exist or a disaster occurs, the presid­ing judge or magistrate may by written order made each day extend the period during which the two certificates of medical examination for mental health may be filed, and the person may be detained until 4:00 p.m. on the first succeed­ing business day. The written order must declare that an emergency exists because of the weather or the occurrence of a disaster. Tex. Health & Safety Code § 574.009(b)–(d).

The court may order an independent evaluation of the proposed patient by a psychiatrist chosen by the proposed patient if the court determines that the evaluation will assist the finder of fact. The psychiatrist may testify on behalf of the proposed patient. If the court determines that the proposed patient is indigent, the court may authorize reimbursement to the attorney ad litem for court-approved expenses incurred in obtain­ing expert testimony and may order the pro­posed patient’s county of residence to pay the expenses. Tex. Health & Safety Code § 574.010.

A certificate of medical examination for mental health must be sworn to, dated, and signed by the examining physician. The certificate must include (1) the name and address of the examin­ing physician; (2) the name and address of the person examined; (3) the date and place of the examination; (4) a brief diagnosis of the exam­ined person’s physical and mental condition; (5) the period, if any, during which the examined person has been under the care of the examining physician; and (6) an accurate description of the mental-health treatment, if any, given by or administered under the direction of the examin­ing physician. Tex. Health & Safety Code § 574.011(a)(1)–(a)(6).

In addition, in order to support a finding that court-ordered mental-health services are appro­priate, the certificate of medical examination for mental health must include the examining physi­cian’s opinion that (1) the examined person is a person with mental illness, and (2) as a result of that illness the examined person is likely to cause serious harm to the person or to others or is (a) suffering severe and abnormal mental, emotional, or physical distress; (b) experiencing substantial mental or physical deterioration of the proposed patient’s ability to function inde­pendently, which is exhibited by the proposed patient’s inability, except for reasons of indi­gence, to provide for the proposed patient’s basic needs, including food, clothing, health or safety; and (c) not able to make a rational and informed decision about whether to submit to treatment. The certificate must include the detailed reason for each of the examining physi­cian’s opinions under this Code section. If the certificate is offered in support of an application for extended mental-health services, the certifi­cate must also include the examining physi­cian’s opinion that the examined person’s condition is expected to continue for more than ninety days. Tex. Health & Safety Code § 574.011(a)(7), (b)–(e).

Practice Pointer:      Always carefully examine each certificate of medical examination for men­tal health and look for the following common problems: (1) the same physician prepared both certificates of medical examination for mental health (sometimes one is handwritten and the other is typed); (2) the physician failed to state a diagnosis in conformity with Tex. Health & Safety Code § 571.003(14) (sometimes the patient is diagnosed with dementia or a person­ality disorder or the episode results from sub­stance abuse, resulting in cause for dismissal of the application for mental-health services); or (3) the physician failed to sign or date the certif­icate.

§ 16.4:8Protective Custody

The application for court-ordered mental-health services is filed before or with the motion for an order of protective custody. The hearing on the application for court-ordered mental-health ser­vices is commonly referred to as the “final hear­ing” and is discussed at sections 16.8 through 16.8:6 below. The hearing on the motion for an order of protective custody is commonly referred to as the “probable cause” hearing and is discussed at section 16.6:2.

§ 16.5Emergency Detention

When a proposed patient is detained in custody for the purpose of evaluation, important time­lines and procedures apply to ensure that the rights of the patient are observed.

§ 16.5:1Preliminary Examination

A person accepted for a preliminary examina­tion may be detained in custody for not longer than forty-eight hours after the time the person is presented to the facility unless a written order for protective custody is obtained. The forty-eight-hour period includes any time the patient spends waiting in the facility for medical care before the person receives the preliminary examination. 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, 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. If extremely hazardous weather conditions exist or a disaster occurs, the presiding judge or magis­trate may, by written order made each day, extend by an additional twenty-four hours the period during which the person may be detained. A physician shall examine the person as soon as possible within twelve hours after the time the person is apprehended by the peace officer or transported for emergency detention by the per­son’s guardian. Tex. Health & Safety Code § 573.021(b), (c).

§ 16.5:2Emergency Admission and Detention

A person may be admitted to a facility for emer­gency detention only if the physician who con­ducted the preliminary examination of the person makes a written statement that is accept­able to the facility and states that after a prelimi­nary examination it is the physician’s opinion that (1) the person is a person with mental ill­ness, (2) the person evidences a substantial risk of serious harm to the person or to others, (3) the described risk of harm is imminent unless the person is immediately restrained, and (4) emer­gency detention is the least restrictive means by which the necessary restraint may be accom­plished. The written statement must include a description of the nature of the person’s mental illness and a specific description of the risk of harm the person evidences that may be 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 that the person cannot remain at lib­erty. The statement must also set out the specific detailed information from which the physician formed the opinion. Tex. Health & Safety Code § 573.022(a).

A mental-health facility that has admitted a per­son for emergency detention 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. A facility that has admitted a per­son for emergency detention may transfer the person to an appropriate mental hospital with the written consent of the hospital administrator. Tex. Health & Safety Code § 573.022(b), (c).

Practice Pointer:      Proposed patients often wish to be transferred to a mental-health facility where their long-standing, regular treating phy­sician has privileges. In such case, the transfer may take place only if the hospital administrator of the receiving mental-health facility consents. In addition, if the preferred mental-health facil­ity is private, it may require the proposed patient to pay for treatment or enter the facility on a vol­untary basis.

§ 16.5:3Release and Transportation

A person apprehended by a peace officer or transported for emergency detention or detained shall be released on completion of the prelimi­nary examination unless the person is admitted to a facility. A person admitted to a facility shall be released if the facility administrator deter­mines at any time during the emergency deten­tion period that one of the criteria outlined in Texas Health and Safety Code section 573.022(a)(2) no longer applies. Tex. Health & Safety Code § 573.023.

Arrangements shall be made to transport a per­son who was not arrested and who is entitled to release to (1) the location of the person’s appre­hension, (2) the person’s residence in Texas, or (3) another suitable location, unless the person objects to the transportation. If the person was apprehended by a peace officer, arrangements must be made to immediately transport the per­son. Otherwise the person is entitled to reason­ably prompt transportation. The county in which the person was apprehended shall pay the costs of transporting the person. Tex. Health & Safety Code § 573.024.

§ 16.6Motion and Order for Protective Custody

A motion for an order of protective custody, commonly referred to as an “OPC,” may be filed only in the court in which an application for court-ordered mental-health services is pending. The motion may be filed by the county or dis­trict attorney or on the court’s own motion. The motion must state that the judge or county or district attorney has reason to believe and does believe that the proposed patient meets the crite­ria authorizing the court to order protective cus­tody and the 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 certificate of medical examination for mental health prepared by a physician who has exam­ined the proposed patient not earlier than the third day before the day the motion is filed. The judge of the court in which the application is pending may designate a magistrate to issue pro­tective custody orders, including a magistrate appointed by the judge of another court if the magistrate has at least the qualifications required for a magistrate of the court in which the application is pending. Tex. Health & Safety Code § 574.021.

The judge or designated magistrate may issue an order of protective custody if the judge or mag­istrate determines that a physician has stated the physician’s opinion and the detailed reasons for the physician’s opinion that the proposed patient is a person with mental illness and the proposed patient presents a substantial risk of serious harm to the proposed patient or others if not immediately restrained pending the hearing. The determination that the proposed patient presents a substantial risk of serious harm may be demonstrated by the proposed patient’s behavior or by evidence of severe emotional distress and deterioration in the proposed patient’s mental condition to the extent that the proposed patient cannot remain at liberty. Tex. Health & Safety Code § 574.022(a), (b).

The judge or magistrate may determine that the proposed patient meets the criteria prescribed above from the application and certificate alone if the judge or magistrate determines that the conclusions of the applicant and certifying phy­sician are adequately supported by the informa­tion provided. However, the judge or magistrate may take additional evidence if a fair determina­tion of the matter cannot be made from consid­eration of the application and certificate only. The judge or magistrate may issue a protective custody order for a proposed patient who is charged with a criminal offense if the proposed patient meets the requirements of this Code sec­tion and the facility administrator designated to detain the proposed patient agrees to the deten­tion. Tex. Health & Safety Code § 574.022(c)–(e).

When a protective custody order is signed, the judge or designated magistrate shall appoint an attorney to represent a proposed patient who does not have an attorney. Tex. Health & Safety Code § 574.024(a). However, it would be unusual for a proposed patient to be without legal representation when the protective custody order is signed because an attorney should have already been appointed when the application for mental-health services was filed. Within a rea­sonable time before the probable cause hearing, the court that ordered the protective custody shall provide to the proposed patient and the proposed patient’s attorney a written notice stat­ing that the proposed patient has been placed under a protective custody order, the grounds for the order, and the time and place of the hearing to determine probable cause. Tex. Health & Safety Code § 574.024(b).

§ 16.6:1Apprehension under Order

A protective custody order shall direct a person authorized to transport patients under Tex. Health & Safety Code § 574.045 to take the pro­posed patient into protective custody and trans­port the person immediately to a mental-health facility deemed suitable by the local mental-health authority for the area. The proposed patient shall be detained in the facility until the probable cause hearing. A person may not be detained in a private mental-health facility with­out the consent of the facility administrator. Tex. Health & Safety Code § 574.023.

Practice Pointer:      Note that the proposed patient is likely already in a mental-health facil­ity, as the proposed patient has already been examined by a physician, as indicated by the certificate of medical examination for mental health supporting the judge’s findings in the protective custody order. However, transport of the proposed patient to a mental-health facility pursuant to Tex. Health & Safety Code § 574.023 might be required if a patient pre­sented in the emergency room of a hospital or was a patient in a hospital that was not also a mental-health facility.

§ 16.6:2Probable Cause Hearing

A hearing must be held to determine if there is probable cause to believe that a proposed patient under a protective custody order presents a sub­stantial risk of serious harm to the proposed patient or others to the extent that the proposed patient cannot be at liberty pending the hearing on court-ordered mental-health services and a physician has stated the physician’s opinion and the detailed reasons for the physician’s opinion that the proposed patient is a person with mental illness. Tex. Health & Safety Code § 574.025(a).

The hearing must be held not later than seventy-two hours after the time that the proposed patient was detained under a protective custody order. If the period ends on a Saturday, Sunday, or legal holiday, the hearing must be held on the next day that is not a Saturday, Sunday, or legal holiday. The judge or magistrate may postpone the hearing each day for an additional twenty-four hours if the judge or magistrate declares that an extreme emergency exists because of extremely hazardous weather conditions or the occurrence of a disaster that threatens the safety of the proposed patient or another essential party to the hearing. Tex. Health & Safety Code § 574.025(b).

The hearing shall be held before a magistrate or, at the discretion of the presiding judge, before an associate judge appointed by the presiding judge. The proposed patient and the proposed patient’s attorney shall have an opportunity at the hearing to appear and present evidence to challenge the allegation that the proposed patient presents a substantial risk of serious harm to himself or others. The magistrate or associate judge may consider evidence, includ­ing letters, affidavits, and other material, that may not be admissible in a subsequent commit­ment hearing. The state may prove its case on the physician’s certificate of medical examina­tion for mental health filed in support of the ini­tial motion. Tex. Health & Safety Code § 574.025(c)–(f).

§ 16.6:3Continued Detention

The magistrate or associate judge shall order that a proposed patient remain in protective cus­tody if the magistrate or associate judge deter­mines after the hearing that an adequate factual basis exists for probable cause to believe that the proposed patient presents a substantial risk of serious harm to himself or others to the extent that he cannot remain at liberty pending the hearing on court-ordered mental-health services. Tex. Health & Safety Code § 574.026(a).

The magistrate or associate judge shall arrange for the proposed patient to be returned to the mental-health facility or other suitable place, along with copies of the certificate of medical examination for mental health, any affidavits or other material submitted as evidence in the hear­ing, and the notification of probable cause hear­ing prepared as prescribed by Tex. Health & Safety Code § 574.026(d). A copy of the notifi­cation of probable cause hearing and the sup­porting evidence shall be filed with the court that entered the original order of protective cus­tody. Tex. Health & Safety Code § 574.026(b)–(c).

A person under a protective custody order shall be detained in a mental-health facility deemed suitable by the local mental-health authority for the area, and the facility administrator shall detain a person under a protective custody order in the facility until a final order for court-ordered mental-health services is entered or the person is released or discharged under Tex. Health & Safety Code § 574.028. A person under a protective custody order may not be detained in a nonmedical facility used to detain persons who are charged with or convicted of a crime except because of and during an extreme emergency and in no case for longer than sev­enty-two hours, excluding Saturdays, Sundays, legal holidays, and the period prescribed by Tex. Health & Safety Code § 574.025(b) for extremely hazardous weather conditions or the occurrence of a disaster that threatens the safety of the proposed patient. The person must be iso­lated from any person who is charged with or convicted of a crime, and the county health authority shall ensure that proper care and medi­cal attention are made available to a person who is detained in a nonmedical facility. Tex. Health & Safety Code § 574.027.

§ 16.6:4Release from Detention

The magistrate or associate judge shall order the release of a person under a protective custody order if the magistrate or associate judge deter­mines after the probable cause hearing that no probable cause exists to believe that the pro­posed patient presents a substantial risk of seri­ous harm to himself or others. In that case, arrangements shall be made to return a person released to the location of the person’s appre­hension, the person’s residence in Texas, or another suitable location. Tex. Health & Safety Code § 574.028(a), (b).

A facility administrator shall discharge a person held under a protective custody order if the facility administrator (1) does not receive notice that the person’s continued detention is autho­rized after a probable cause hearing held within seventy-two hours after the detention began, excluding Saturdays, Sundays, legal holidays, and the period prescribed by Tex. Health & Safety Code section 574.025(b) for extremely hazardous weather conditions or the occurrence of a disaster that threatens the safety of the pro­posed patient; (2) a final order for court-ordered mental-health services has not been entered within the time prescribed by Tex. Health & Safety Code section 574.005 (within fourteen days of the date the application is filed or within thirty days of the date the application is filed with continuances); or (3) the facility adminis­trator or the administrator’s designee determines that the person no longer meets the criteria for protective custody in that the proposed patient is either not a person with mental illness or the proposed patient no longer presents a substantial risk of serious harm to the proposed patient or others if not immediately restrained pursuant to Tex. Health and Safety Code section 574.022. Tex. Health & Safety Code § 574.028.

Practice Pointer:      The overwhelming major­ity of proposed patients exit the involuntary commitment process either in this manner or even before the probable cause hearing as dis­cussed at section 16.5:3 above, and the applica­tions for mental-health services are dismissed by the court in such cases.

§ 16.7Rights of Persons Apprehended, Detained, or Transported for Emergency Detention

A person apprehended, detained, or transported for emergency detention has the following rights: (1) to be advised of the location of deten­tion, the reasons for the detention, and the fact that the detention could result in a longer period of involuntary commitment; (2) to a reasonable opportunity to communicate with and retain an attorney; (3) to be transported to a location in accordance with the guidelines set out in Texas Health and Safety Code section 573.024 if the person is not admitted for emergency detention unless the person is arrested or objects; (4) to be released from a facility pursuant to the require­ments set out in Texas Health and Safety Code section 573.023; (5) to be advised that commu­nications with a mental-health professional may be used in proceedings for further detention; (6) to be transported in accordance with Texas Health and Safety Code sections 573.026 and 574.045, if the person is detained or transported under an order of protective custody; and (7) to a reasonable opportunity to communicate with a relative or other responsible person who has a proper interest in the person’s welfare. Tex. Health & Safety Code § 573.025(a).

A person apprehended, detained, or transported for emergency detention shall be informed of the person’s rights orally in simple, nontechnical terms, within twenty-four hours after the time the person is admitted to a facility, and in writ­ing in the person’s primary language if possible or through the use of a means reasonably calcu­lated to communicate with a hearing- or visually impaired person, if applicable. Tex. Health & Safety Code § 573.025(b).

Each law enforcement agency must make a good-faith effort to divert a person suffering a mental-health crisis to a proper treatment center in the agency’s jurisdiction if (1) there is an available and appropriate treatment center in the agency’s jurisdiction to which the agency may divert the person; (2) it is reasonable to divert the person; (3) the offense that the person is accused of is a misdemeanor, other than a mis­demeanor involving violence; and (4) the men­tal-health crisis or substance abuse issue is suspected to be the reason the person committed the alleged offense. See Tex. Code Crim. Proc. art. 16.23.

§ 16.8General Provisions Related to Final Hearing

Unless the proposed patient or the proposed patient’s attorney requests that the final hearing be at the county courthouse, the judge may hold a hearing on an application for court-ordered mental-health services at any suitable location in the county. The hearing should be held in a physical setting that is not likely to have a harm­ful effect on the proposed patient. The proposed patient is entitled to be present at the hearing, but the proposed patient or the proposed patient’s attorney may waive this right. The hearing must be open to the public unless the proposed patient or the proposed patient’s attor­ney requests that the hearing be closed and the judge determines that there is good cause to close the hearing. The Texas Rules of Evidence apply to the hearing. The court may consider the testimony of a nonphysician mental-health pro­fessional in addition to medical or psychiatric testimony. The hearing is on the record, and the state must prove each element of the applicable criteria by clear and convincing evidence. Tex. Health & Safety Code § 574.031(a)–(g).

With respect to a hearing for temporary inpa­tient or outpatient mental-health services, the proposed patient or his attorney may waive the right to cross-examine witnesses in writing, and, if that right is waived, the court may admit, as evidence, the certificates of medical examina­tion for mental health. The certificates admitted constitute competent medical or psychiatric tes­timony, and the court may make its findings solely from the certificates. If the proposed patient or the proposed patient’s attorney does not waive in writing the right to cross-examine witnesses, the court shall proceed to hear testi­mony. The testimony must include competent medical or psychiatric testimony. Tex. Health & Safety Code § 574.031(d–1).

In a hearing for extended inpatient or extended outpatient mental-health services, the court may not make its findings solely from the certificates of medical examination for mental health but shall hear testimony. The court may not enter an order for extended mental-health services unless appropriate findings are made and are supported by testimony taken at the hearing. See additional discussion on the required findings at section 16.8:4 below. The testimony must include com­petent medical or psychiatric testimony. Tex. Health & Safety Code § 574.031(d–2).

§ 16.8:1Right to Jury

A hearing for temporary mental-health services must be before the court unless the proposed patient or the proposed patient’s attorney requests a jury. A hearing for extended mental-health services must be before a jury unless the proposed patient or the proposed patient’s attor­ney later waives the right to a jury. The waiver must be in writing, under oath, and signed and sworn to by the proposed patient and the pro­posed patient’s attorney unless the proposed patient or the attorney orally waives the right to a jury in the court’s presence. The court may permit an oral or written waiver of the right to a jury to be withdrawn for good cause shown, but the withdrawal must be made not later than the eighth day before the date on which the hearing is scheduled. A court may not require a jury fee. In a hearing before a jury, the jury shall deter­mine if the proposed patient is a person with mental illness and meets the criteria for court-ordered mental-health services. The jury may not make a finding about the type of services to be provided to the proposed patient. Tex. Health & Safety Code § 574.032.

§ 16.8:2Release after Hearing

The court shall enter an order denying an appli­cation for court-ordered temporary or extended mental-health services if after a hearing the court or jury fails to find, from clear and con­vincing evidence, that the proposed patient is mentally ill and meets the applicable criteria for court-ordered mental-health services. If the court denies the application, the court shall order the immediate release of a proposed patient who is not at liberty. Tex. Health & Safety Code § 574.033.

§ 16.8:3Order for Temporary Mental-Health Services

The judge may order a proposed patient to receive court-ordered temporary inpatient men­tal-health services only if the judge or jury finds, from clear and convincing evidence, that—

(1)the proposed patient is a person with mental illness; and

(2)as a result of that mental illness the proposed patient:

(A)is likely to cause serious harm to the proposed patient;

(B)is likely to cause serious harm to others; or

(C)is:

(i)suffering severe and abnormal mental, emotional, or physical distress;

(ii)experiencing substantial mental or physical deterioration of the proposed patient’s ability to function independently, which is exhibited by the proposed patient’s inability, except for reasons of indigence, to provide for the proposed patient’s basic needs, including food, clothing, health, or safety; and

(iii)unable to make a rational and informed decision as to whether or not to submit to treatment.

Tex. Health & Safety Code § 574.034(a).

An order for temporary inpatient mental-health services shall provide for a period of treatment not to exceed forty-five days unless the judge finds that a longer period (not to exceed ninety days) is necessary. Tex. Health & Safety Code § 574.034(g).

The judge may also order a proposed patient to receive court-ordered temporary outpatient mental-health services only if—

(1)the judge finds that appropriate mental health services are avail­able to the proposed patient; and

(2)the judge or jury finds, from clear and convincing evidence, that:

(A)the proposed patient is a person with severe and per­sistent mental illness;

(B)as a result of the mental ill­ness, the proposed patient will, if not treated, experi­ence deterioration of the ability to function inde­pendently to the extent that the proposed patient will be unable to live safely in the community without court-ordered outpatient mental health services;

(C)outpatient mental health services are needed to pre­vent a relapse that would likely result in serious harm to the proposed patient or others; and

(D)the proposed patient has an inability to participate in outpatient treatment ser­vices effectively and volun­tarily, demonstrated by:

(i)any of the proposed patient’s actions occurring within the two-year period that immediately precedes the hearing; or

(ii)specific characteristics of the proposed patient’s clinical condition that significantly impair the proposed patient’s ability to make a rational and informed decision whether to submit to voluntary outpatient treatment.

Tex. Health & Safety Code § 574.0345(a).

To be clear and convincing, the evidence must include expert testimony and evidence of a recent overt act or a continuing pattern of behav­ior that tends to confirm (1) the deterioration of ability to function independently to the extent that the proposed patient will be unable to live safely in the community, (2) the need for outpa­tient mental-health services to prevent a relapse that would likely result in serious harm to the proposed patient or others, and (3) the proposed patient’s inability to participate in outpatient treatment services effectively and voluntarily. Tex. Health & Safety Code § 574.0345(b).

An order for temporary outpatient mental-health services shall state that treatment is authorized for not longer than forty-five days, except that the order may specify a period not to exceed ninety days if the judge finds that the longer period is necessary. Tex. Health & Safety Code § 574.0345(c).

A judge may not issue an order for temporary outpatient mental-health services for a proposed patient who is charged with a criminal offense that involves an act, attempt, or threat of serious bodily injury to another person. Tex. Health & Safety Code § 574.0345(d).

§ 16.8:4Order for Extended Mental-Health Services

The vast majority of court-ordered mental-health services are for temporary services. How­ever, the judge may order a proposed patient to receive court-ordered extended inpatient men­tal-health services only if the jury, or the judge if a trial by jury is not requested or the right to a jury is waived, finds, from clear and convincing evidence, that—

(1)the proposed patient is a person with mental illness;

(2)as a result of that mental illness the proposed patient:

(A)is likely to cause serious harm to the proposed patient;

(B)is likely to cause serious harm to others; or

(C)is:

(i)suffering severe and abnormal mental, emotional, or physical distress;

(ii)experiencing substantial mental or physical deterioration of the proposed patient’s ability to function independently, which is exhibited by the proposed patient’s inability, except for reasons of indigence, to provide for the proposed patient’s basic needs, including food, clothing, health, or safety; and

(iii)unable to make a rational and informed decision as to whether or not to submit to treatment;

(3)the proposed patient’s condition is expected to continue for more than 90 days; and

(4)the proposed patient has received court-ordered inpatient mental health services under [Texas Health and Safety Code title 7, subtitle C] or under Chapter 46B, Code of Criminal Procedure, for at least 60 consecutive days during the preceding 12 months.

Tex. Health & Safety Code § 574.035(a).

The judge may also order a patient to receive court-ordered extended outpatient mental-health services as long as the patient meets the same criteria as are required for temporary outpatient mental-health services pursuant to Tex. Health & Safety Code § 574.0345 and the proposed patient (1) has a condition that is expected to continue for more than ninety days and (2) has received court-ordered mental-health services for a total of at least sixty days during the pre­ceding twelve months or during the preceding sixty days. Tex. Health & Safety Code § 574.0355.

The court may not make its findings solely from the certificates of medical examination for men­tal health but shall hear testimony. The court may not enter an order for extended mental-health services unless appropriate findings are made and are supported by testimony taken at the hearing. The testimony must include compe­tent medical or psychiatric testimony. Tex. Health & Safety Code § 574.031(d–2). An order for extended inpatient services must provide for a period of treatment not to exceed twelve months. Tex. Health & Safety Code § 574.035(h). A judge may not issue an order for extended inpatient or outpatient mental-health services for a proposed patient who is charged with a criminal offense that involves an act, attempt, or threat of serious bodily injury to another person. Tex. Health & Safety Code §§ 574.035(i), 574.0355(e).

§ 16.8:5Judge May Consider Outpatient vs. Inpatient Mental-Health Services

The judge shall dismiss the jury, if any, after a hearing in which a person is found to be a per­son with mental illness and to meet the criteria for court-ordered temporary or extended mental-health services. The judge may hear additional evidence relating to whether the treatment should be inpatient or outpatient and shall order the mental-health services provided in the least restrictive appropriate setting available. Specifi­cally, the judge may enter an order committing the person to a mental-health facility for inpa­tient care if the trier of fact finds that the person meets the commitment criteria prescribed by Tex. Health & Safety Code § 574.034(a) or § 574.035(a) (see first set of criteria set out at sections 16.8:3 and 16.8:4 above) or committing the person to outpatient mental-health services if the trier of fact finds that the person meets the commitment criteria prescribed by Tex. Health & Safety Code § 574.0345(a) or § 574.0355(a) (see second set of criteria discussed at sections 16.8:3 and 16.8:4). Tex. Health & Safety Code § 574.036.

§ 16.8:6Court-Ordered Outpatient Mental-Health Services

The court, in an order that directs a patient to participate in outpatient mental-health services, shall designate a person as responsible for such services. The person designated must be the facility administrator or an individual involved in providing court-ordered outpatient services. A person may not be designated as responsible for the ordered services without the person’s consent unless the person is the facility adminis­trator of a department facility or the facility administrator of a community center that pro­vides mental-health services in the region in which the committing court is located or in a county where the patient has previously received mental-health services. The person responsible for the services shall submit to the court a general program of the treatment to be provided. The program must be incorporated into the court order and must include services to provide care coordination and any other treat­ment or services, including medication and sup­ported housing, that are available and considered clinically necessary by a treating physician or the person responsible for the ser­vices to assist the patient in functioning safely in the community. Tex. Health & Safety Code § 574.037(a), (b).

If the patient is receiving inpatient mental-health services at the time the program is being pre­pared, the person responsible for the services shall seek input from the patient’s inpatient treatment providers in preparing the program. The person responsible for the services shall submit the program to the court before the final hearing or before the court modifies an order under Tex. Health & Safety Code § 574.061, as appropriate. Tex. Health & Safety Code § 574.037(b–1), (b–2).

A patient subject to court-ordered outpatient ser­vices may petition the court for specific enforce­ment of the court order, and a court may set a status conference. Tex. Health & Safety Code § 574.037(c–1), (c–2). The court shall order the patient to participate in the program but may not compel performance. If a court receives infor­mation that a patient is not complying with the court’s order, the court may set a modification hearing pursuant to Tex. Health & Safety Code § 574.062 and issue an order for temporary detention if an application is filed under Tex. Health & Safety Code § 574.063. The failure of a patient to comply with the program incorpo­rated into a court order is not grounds for pun­ishment for contempt of court. Tex. Gov’t Code § 21.002; Tex. Health & Safety Code § 574.037(c–3), (c–4).

§ 16.9Designation of Facility and Transportation of Patient

In an order for temporary or extended mental-health services specifying inpatient care, the court shall commit the patient to a designated inpatient mental-health facility. The court shall commit the patient to a mental-health facility deemed suitable by the local mental-health authority for the area, a private mental hospital, a hospital operated by a federal agency, or an inpatient mental-health facility of the institu­tional division of the Texas Department of Criminal Justice. A court may not commit a patient to an inpatient mental-health facility operated by a community center or other entity designated by the department to provide mental-health services unless the facility is licensed under chapter 577 of the Texas Health and Safety Code and the court notifies the local mental-health authority serving the region in which the commitment is made. Tex. Health & Safety Code § 574.041.

§ 16.9:1Commitment to Private Facility

The court may order a patient committed to a private mental hospital at no expense to the state if the court receives an application signed by the patient or the patient’s guardian or next friend requesting that the patient be placed in a desig­nated private mental hospital at the patient’s or applicant’s expense and a written agreement from the hospital administrator of the private mental hospital to admit the patient and to accept responsibility for the patient. Tex. Health & Safety Code § 574.042.

§ 16.9:2Commitment to Federal Facility

A court may order a patient committed to a fed­eral agency that operates a mental hospital if the court receives written notice from the agency that facilities are available and that the patient is eligible for care or treatment in a facility. The court may place the patient in the agency’s cus­tody for transportation to the mental hospital. A patient admitted under court order to a hospital operated by a federal agency, regardless of loca­tion, is subject to the agency’s rules. The hospi­tal administrator has the same authority and responsibility with respect to the patient as the facility administrator of an inpatient mental-health facility operated by the department. The appropriate courts of this state retain jurisdiction to inquire at any time into the patient’s mental condition and the necessity of the patient’s con­tinued hospitalization. Tex. Health & Safety Code § 574.043.

§ 16.9:3Commitment to Facility of Institutional Division of Texas Department of Criminal Justice

The court shall commit an inmate patient to an inpatient mental-health facility of the institu­tional division of the Texas Department of Criminal Justice if the court enters an order requiring temporary mental-health services for the inmate patient under an application filed by a psychiatrist for the institutional division under Tex. Gov’t Code § 501.057. See Tex. Health & Safety Code § 574.044.

In 2019, the Texas legislature tasked the Com­mission on Jail Standards to conduct a compre­hensive study on best practice standards for the detention of persons with intellectual and devel­opmental disabilities, a population of people who can be more vulnerable to mental-health challenges. The task force included governmen­tal officials and advocates; the representative of the Commission on Jail Standards served as pre­siding officer of the task force. The task force’s written report on its findings is available at www.tcjs.state.tx.us/wp-content/uploads/2020/12/Detention_of_Per­sons_with_IDD.pdf. See ID Detention Task Force Act of 2019, 86th Leg., R.S., ch. 880 (H.B. 3116), eff. Sept. 1, 2019.

§ 16.9:4Transportation of Patient

The court may authorize, in the following order of priority, the transportation of a committed patient or a patient detained pursuant to Texas Health and Safety Code section 573.022 or 574.023 to the designated mental-health facility by (1) a special officer for mental-health assign­ment certified under Texas Occupations Code section 1701.404; (2) the facility administrator of the designated mental-health facility, unless the administrator notifies the court that facility personnel are not available to transport the patient; (3) a representative of the local mental-health authority unless the representative noti­fies the court that local mental-health authority personnel are not qualified to ensure the safety of the patient during transport; (4) a qualified transportation service provider selected from the list established and maintained as required by Tex. Health & Safety Code § 574.0455 by the commissioners court of the county in which the court authorizing the transportation is located; (5) the sheriff or constable; or (6) a relative or other responsible person who has a proper inter­est in the patient’s welfare. Tex. Health & Safety Code § 574.045(a).

The court shall require appropriate medical per­sonnel to accompany the person transporting the patient if there is reasonable cause to believe that the patient will require medical assistance or the administration of medication during the transportation. The patient’s friends and rela­tives may accompany the patient at their own expense. A female patient must be accompanied by a female attendant unless the patient is accompanied by her father, husband, or adult brother or son. Tex. Health & Safety Code § 574.045(b), (c), (d).

The patient may not be transported in a marked police or sheriff’s car or accompanied by a uni­formed officer unless other means are not avail­able. The patient may not be transported with a state prisoner. The patient may not be physically restrained unless necessary to protect the health and safety of the patient or of a person traveling with the patient. If the treating physician or the person transporting a patient determines that physical restraint of the patient is necessary, that person shall document the reasons for that deter­mination and the duration for which the restraints are needed. The person transporting the patient shall deliver the document to the facility at the time the patient is delivered. The facility shall include the document in the patient’s clinical record. The patient must be transported directly to the facility within a rea­sonable amount of time and without undue delay. All vehicles used to transport patients under this section must be adequately heated in cold weather and adequately ventilated in warm weather. Special diets or other medical precau­tions recommended by the patient’s physician must be followed. The person transporting the patient shall give the patient reasonable opportu­nities to get food and water and to use a bath­room. A patient restrained as necessary to protect the health and safety of the patient or of a person traveling with the patient may be restrained only during the apprehension, deten­tion, or transportation of the patient. The method of restraint must permit the patient to sit in an upright position without undue difficulty unless the patient is being transported by ambulance. Tex. Health & Safety Code § 574.045(e), (l).

§ 16.10Postcommitment Proceedings

Postcommitment proceedings, including modifi­cations, motions for rehearing, motions for reex­amination, and appeals, are uncommon but are described below.

§ 16.10:1Modification of Order for Inpatient Treatment

Within thirty days of commitment, the facility administrator of a facility to which a patient is committed for inpatient mental-health services shall assess the appropriateness of transferring the patient to outpatient mental-health services and may recommend that the court entering the commitment order modify the order to require outpatient mental-health services. Such a recom­mendation must explain in detail the reason for the recommendation and be accompanied by a supporting certificate of medical examination for mental health signed by a physician who examined the patient during the seven days pre­ceding the recommendation. The patient shall be given notice of the recommendation and is enti­tled to a hearing with counsel on the recommen­dation if requested; otherwise, the court may make a decision regarding the recommendation based on (1) the recommendation, (2) the sup­porting certificate, and (3) consultation with the local mental-health authority concerning avail­able resources to treat the patient. A modified order may extend beyond the term of the origi­nal order but not by more than sixty days. Tex. Health & Safety Code § 574.061.

A court on its own motion may set a status con­ference with the patient, the patient’s attorney, and the person designated to be responsible for the patient’s court-ordered outpatient services under section 574.037. Tex. Health & Safety Code § 574.0665.

§ 16.10:2Modification of Order for Outpatient Treatment

The court that entered an order directing a patient to participate in outpatient mental-health services may set a hearing to determine if the order should be modified in a way that is a sub­stantial deviation from the original program of treatment incorporated in the court’s order. The court may set the hearing on its own motion, at the request of the person responsible for the treatment, or at the request of any other inter­ested person. The court shall appoint an attorney to represent the patient if a hearing is scheduled. The patient shall be given notice of the matters to be considered at the hearing. The notice must comply with the requirements of Tex. Health & Safety Code § 574.006 for notice before a hear­ing on court-ordered mental-health services. The hearing shall be held before the court, without a jury, and as prescribed by Tex. Health & Safety Code § 574.031. The patient shall be repre­sented by an attorney and receive proper notice. The court shall set a date for a hearing on the motion to be held not later than the seventh day after the date the motion is filed. The court may grant one or more continuances of the hearing on the motion by a party and for good cause shown or on the agreement of the parties. Except for delays due to extremely hazardous weather conditions, the court shall hold the hearing not later than the fourteenth day after the date the motion is filed. Tex. Health & Safety Code § 574.062.

§ 16.10:3Order for Temporary Detention

The person responsible for a patient’s court-ordered outpatient treatment or the facility administrator of the outpatient facility in which a patient receives treatment may file a sworn application for the patient’s temporary detention pending the modification hearing under Tex. Health & Safety Code § 574.062. The applica­tion must state the applicant’s opinion and detail the reasons for the applicant’s opinion that the patient, because of mental illness, presents a substantial risk of serious harm to the patient or others so that the patient cannot be at liberty pending a hearing and that detention in an inpa­tient mental-health facility is necessary to evalu­ate the appropriate setting for continued court-ordered services. The determination that the patient presents a substantial risk of serious harm to the patient or others may be demon­strated by the patient’s behavior or evidence of severe emotional distress and deterioration in the patient’s mental condition to the extent that the patient cannot live safely in the community. Tex. Health & Safety Code § 574.063(a), (b). See Tex. Health & Safety Code § 574.064(a–1).

The court may issue an order for temporary detention if a modification hearing is set and the court finds from the information in the applica­tion that there is probable cause to believe that the opinions stated in the application are valid. At the time the temporary detention order is signed, the judge shall appoint an attorney to represent a patient who does not have an attor­ney. Within twenty-four hours after the time detention begins, the court that issued the tem­porary detention order shall provide to the patient and the patient’s attorney a written notice that states that the patient has been placed under a temporary detention order, the grounds for the order, and the time and place of the mod­ification hearing. Tex. Health & Safety Code § 574.063(e).

§ 16.10:4Renewal of Order for Extended Mental-Health Services

A county or district attorney or other adult may file an application to renew an order for extended mental-health services. The applica­tion must explain in detail why the person requests renewal. An application to renew an order committing the patient to extended inpa­tient mental-health services must also explain in detail why a less restrictive setting is not appro­priate. The application must be accompanied by two certificates of medical examination for mental health signed by physicians who exam­ined the patient during the thirty days preceding the date on which the application is filed, and the court shall appoint an attorney to represent the patient when an application is filed. Tex. Health & Safety Code § 574.066(a)–(d).

The patient, the patient’s attorney, or another individual may request a hearing on the applica­tion. The court may set a hearing on its own motion. An application for which a hearing is requested or set is considered an original appli­cation for court-ordered extended mental-health services. A court may not renew an order unless the court finds that the patient meets the criteria for extended mental-health services prescribed by Tex. Health & Safety Code § 574.035(a)(1)–(a)(3). See discussion at section 16.8:4 above. The court must make the findings prescribed by this Code subsection to renew an order, regard­less of whether a hearing is requested or set. A renewed order authorizes treatment for not more than twelve months. If a hearing is not requested or set, the court may admit into evidence the cer­tificates of medical examination for mental health. The certificates constitute competent medical or psychiatric testimony, and the court may make its findings solely from the certifi­cates and the detailed request for renewal. The court, after renewing an order for extended inpa­tient mental-health services, may modify the order to provide for outpatient mental-health services in accordance with Tex. Health & Safety Code § 574.037. Tex. Health & Safety Code § 574.066(e)–(h).

§ 16.10:5Motion for Rehearing

The court may set aside an order requiring court-ordered mental-health services and grant a motion for rehearing for good cause shown. Pending the hearing, the court may stay the court-ordered mental-health services and release the proposed patient from custody before the hearing if the court is satisfied that the proposed patient does not meet the criteria for protective custody under Tex. Health & Safety Code § 574.022, and, if the proposed patient is at lib­erty, require an appearance bond in an amount set by the court. Tex. Health & Safety Code § 574.067.

§ 16.10:6Request for Reexamination and Hearing

A patient receiving court-ordered extended mental-health services, or any interested person on the patient’s behalf and with the patient’s consent, may file a request with a court for a reexamination and a hearing to determine if the patient continues to meet the criteria for the ser­vices. The request must be filed in the county in which the patient is receiving the services. The court may, for good cause shown, require that the patient be reexamined, schedule a hearing on the request, and notify the facility administrator of the facility providing mental-health services to the patient. A court is not required to order a reexamination or hearing if the request is filed within six months after an order for extended mental-health services is entered or after a simi­lar request is filed. Tex. Health & Safety Code § 574.068(a)–(d).

After receiving the court’s notice, the facility administrator shall arrange for the patient to be reexamined. The facility administrator or the administrator’s qualified authorized designee shall immediately discharge the patient if the facility administrator determines that the patient no longer meets the criteria for court-ordered extended mental-health services. If the facility administrator determines that the patient contin­ues to meet the criteria for court-ordered extended mental-health services, the facility administrator or designee shall file a certificate of medical examination for mental health with the court within ten days after the date on which the request for reexamination and hearing is filed. Tex. Health & Safety Code § 574.068(e)–(g).

A court that required a patient’s reexamination may set a date and place for a hearing on the request if, not later than the tenth day after the date on which the request is filed, a certificate of medical examination for mental health stating that the patient continues to meet the criteria for court-ordered extended mental-health services has been filed or a certificate has not been filed and the patient has not been discharged. At the time the hearing is set, the judge shall appoint an attorney to represent a patient who does not have an attorney and give notice of the hearing to the patient, the patient’s attorney, and the facility administrator. The judge shall appoint a physician to examine the patient and file with the court a certificate of medical examination for mental health. The judge shall appoint a phy­sician who is not on the staff of the mental-health facility in which the patient is receiving services and who is a psychiatrist if a psychia­trist is available in the county. The court shall ensure that the patient may be examined by a physician of the patient’s choice and at the patient’s own expense if requested by the patient. The hearing is held before the court and without a jury. The hearing must be held in accordance with the requirements for a hearing on an application for court-ordered mental-health services. The court shall dismiss the request if the court finds from clear and con­vincing evidence that the patient continues to meet the criteria for court-ordered extended mental-health services prescribed by Tex. Health & Safety Code § 574.035, and the judge shall order the facility administrator to discharge the patient if the court fails to find from clear and convincing evidence that the patient contin­ues to meet the criteria. Tex. Health & Safety Code § 574.069.

 

 

§ 16.10:7Appeal

An appeal from an order requiring court-ordered mental-health services, or from a renewal or modification of an order, must be filed in the court of appeals for the county in which the order is entered. Notice of appeal must be filed not later than the tenth day after the date on which the order is signed. When an appeal is filed, the clerk shall immediately send a certified transcript of the proceedings to the court of appeals. Pending the appeal, the trial judge in whose court the cause is pending may stay the order and release the patient from custody before the appeal if the judge is satisfied that the patient does not meet the criteria for protective custody under Tex. Health & Safety Code § 574.022 (see section 16.8:4 above) and, if the proposed patient is at liberty, require an appear­ance bond in an amount set by the court. The court of appeals and supreme court shall give an appeal under this section preference over all other cases and shall advance the appeal on the docket. The courts may suspend all rules relat­ing to the time for filing briefs and docketing cases. Tex. Health & Safety Code § 574.070.

§ 16.11Continuing Care Plan, Furlough, Discharge, and Termination of Court-Ordered Mental-Health Services

Of utmost importance in the minds of patients facing involuntary mental-health commitment is how and when they may leave the facility. Although it is rare, some mental-health facility administrators will allow a patient a pass or fur­lough under certain circumstances and with the understanding that the pass or furlough may be revoked.

Patients are most often discharged by the men­tal-health facility administrator before the order of commitment expires, and so it is uncommon for a patient to remain in the mental-health facil­ity for the duration of the commitment period specified in the order. When a patient is dis­charged, a continuing care plan should be devel­oped unless continuing care is unnecessary.

§ 16.11:1Continuing Care Plan

The physician responsible for the patient’s treat­ment shall prepare a continuing care plan for a patient who is scheduled to be furloughed or dis­charged unless the patient does not require con­tinuing care. The physician shall prepare the plan as prescribed by the Texas Health and Human Services Commission and shall consult the patient and the local mental-health authority in the area in which the patient will reside before preparing the plan. The local mental-health authority shall be informed of and must partici­pate in planning the discharge of the patient. Tex. Health & Safety Code § 574.081(a), (b).

The plan must address the patient’s mental-health and physical needs, including, if appro­priate, the need for outpatient mental-health ser­vices following furlough or discharge and the need for sufficient psychoactive medication on furlough or discharge to last until the patient can see a physician. The physician shall deliver the plan and other appropriate information to the community center or other provider that will deliver the services. The facility administrator shall have the right of access to discharged patients and records of patients who request continuing care services. A patient who is to be discharged may refuse the continuing care ser­vices. A physician who believes that a patient does not require continuing care and who does not prepare a continuing care plan under this section shall document in the patient’s treatment record the reasons for that belief. Tex. Health & Safety Code § 574.081.

Except as otherwise specified in the plan and subject to available funding provided to the commission and paid to a private mental-health facility for this purpose, a private mental-health facility is responsible for providing or paying for psychoactive medication and any other med­ication prescribed to the patient to counteract adverse side effects of psychoactive medication on furlough or discharge sufficient to last until the patient can see a physician. Tex. Health & Safety Code § 574.081(c–1).

The commission shall adopt rules to determine the quantity and manner of providing psychoac­tive medication, as required by this section. The executive commissioner may not adopt rules requiring a mental-health facility to provide or pay for psychoactive medication for more than seven days after furlough or discharge. Tex. Health & Safety Code § 574.081(c–2).

§ 16.11:2Pass or Furlough from Inpatient Care

The facility administrator may permit a patient admitted to the facility under an order for tem­porary or extended inpatient mental-health ser­vices to leave the facility under a pass or furlough. A pass authorizes the patient to leave the facility for not more than seventy-two hours. A furlough authorizes the patient to leave for a longer period. The pass or furlough may be sub­ject to specified conditions. When a patient is furloughed, the facility administrator shall notify the court that issued the commitment order. Tex. Health & Safety Code § 574.082.

§ 16.11:3Return to Facility

The facility administrator of a facility to which a patient was admitted for court-ordered inpatient health-care services may authorize a peace offi­cer of the municipality or county in which the facility is located to take an absent patient into custody, detain the patient, and return the patient to the facility by issuing a certificate or affidavit setting out facts establishing that the patient is receiving court-ordered inpatient mental-health services at the facility and showing that the facility administrator reasonably believes that the patient is absent without authority from the facility, the patient has violated the conditions of a pass or furlough, or the patient’s condition has deteriorated to the extent that the patient’s con­tinued absence from the facility under a pass or furlough is inappropriate. The affidavit or certif­icate should be issued to a law enforcement agency of the municipality or county. Tex. Health & Safety Code § 574.083(a).

If there is reason to believe that an absent patient may be outside the municipality or county in which the facility is located, the facility admin­istrator may file the affidavit with a magistrate requesting the magistrate to issue an order for the patient’s return. The magistrate with whom the affidavit is filed may issue an order directing a peace or health officer to take an absent patient into custody and return the patient to the facility. The order extends to any part of the state and authorizes any peace officer to whom the order is directed or transferred to execute the order, take the patient into custody, detain the patient, and return the patient to the facility. Tex. Health & Safety Code § 574.083(b).

A peace or health officer shall take the patient into custody and return the patient to the facility as soon as possible if the patient’s return is authorized by a certificate or court order issued under this section. A peace or health officer may take the patient into custody without having the certificate or court order in the officer’s posses­sion. A peace or health officer who cannot immediately return a patient to the facility named in the order may transport the patient to a local facility for detention. The patient may not be detained in a nonmedical facility that is used to detain persons who are charged with or con­victed of a crime unless detention in the facility is warranted by an extreme emergency. If the patient is detained at a nonmedical facility, the patient may not be detained in the facility for more than twenty-four hours and must be iso­lated from all persons charged with or convicted of a crime, and the facility must notify the county health authority of the detention. The local mental-health authority shall ensure that a patient detained in a nonmedical facility receives proper care and medical attention. Not­withstanding other law regarding confidentiality of patient information, the facility administrator may release to a law enforcement official infor­mation about the patient if the administrator determines the information is needed to facili­tate the return of the patient to the facility. Tex. Health & Safety Code § 574.083(d)–(h).

§ 16.11:4Revocation of Furlough

A furlough may be revoked only after an admin­istrative hearing held in accordance with depart­ment rules. The hearing must be held within seventy-two hours after the patient is returned to the facility. A hearing officer shall conduct the hearing. The hearing officer may be a mental-health professional if the person is not directly involved in treating the patient. The hearing is informal and the patient is entitled to present information and argument. The hearing officer may revoke the furlough if the officer deter­mines that the revocation is justified under Texas Health and Safety Code section 574.083(c). A hearing officer who revokes a fur­lough shall place in the patient’s file a written notation of the decision and a written explana­tion of the reasons for the decision and the infor­mation on which the hearing officer relied. The patient shall be permitted to leave the facility under the furlough if the hearing officer deter­mines that the furlough should not be revoked. Tex. Health & Safety Code § 574.084.

§ 16.11:5Discharge

The facility administrator of a facility to which a patient was committed or from which a patient was required to receive temporary or extended inpatient or outpatient mental-health services shall discharge the patient when the court order expires. Tex. Health & Safety Code § 574.085.

The facility administrator of a facility to which a patient was committed for inpatient mental-health services or the person responsible for pro­viding outpatient mental-health services may discharge the patient at any time before the court order expires if the facility administrator or per­son determines that the patient no longer meets the criteria for court-ordered mental-health ser­vices. The facility administrator of a facility to which the patient was committed for inpatient mental-health services shall consider before dis­charging the patient whether the patient should receive outpatient court-ordered mental-health services in accordance with a furlough under Texas Health and Safety Code section 574.082 or a modified order under section 574.061 that directs the patient to participate in outpatient mental-health services. A discharge terminates the court order, and the person discharged may not be required to submit to involuntary mental-health services unless a new court order is entered in accordance with Code title 7, subtitle C. Tex. Health & Safety Code § 574.086.

The facility administrator or the person respon­sible for outpatient care who discharges a patient pursuant to Tex. Health & Safety Code § 574.085 or § 574.086 shall prepare a discharge certificate and file it with the court that entered the order requiring mental-health services. Tex. Health & Safety Code § 574.087.

§ 16.11:6Relief from Disabilities in Mental-Health Cases

A person who is furloughed or discharged from court-ordered mental-health services may peti­tion the court that entered the commitment order for an order stating that the person qualifies for relief from a firearm disability. In determining whether to grant relief, the court must hear and consider evidence about (1) the circumstances that led to imposition of the firearm disability under 18 U.S.C. § 922(g)(4); (2) the person’s mental history; (3) the person’s criminal history; and (4) the person’s reputation. A court may not grant relief unless it makes and enters in the record the following affirmative findings: (1) the person is no longer likely to act in a manner dangerous to public safety and (2) removing the person’s disability to purchase a firearm is in the public interest. Tex. Health & Safety Code § 574.088.

§ 16.12Administration of Medication to Patient under Court Order

A mental-health facility shall provide to a patient in the patient’s primary language, if pos­sible, and in accordance with departmental rules information relating to prescription medication ordered by the patient’s treating physician. The facility shall also provide the information to the patient’s family on request, but only to the extent not otherwise prohibited by state or fed­eral confidentiality laws. See Tex. Health & Safety Code § 574.0415. If the patient refuses to comply with a physician’s recommended treat­ment plan that includes the consumption of psy­choactive medication and progress in the patient’s return to baseline is stymied as a result, the physician will likely file with the court an application for an order authorizing psychoac­tive medication.

§ 16.12:1Physician’s Application for Order to Authorize Psychoactive Medication

A physician who is treating a patient may, on behalf of the state, file an application in a pro­bate court or a court with probate jurisdiction for an order to authorize the administration of a psy­choactive medication regardless of the patient’s refusal if (1) the physician believes that the patient lacks the capacity to make a decision regarding the administration of the psychoactive medication, (2) the physician determines that the medication is the proper course of treatment for the patient, (3) the patient is under an order for inpatient mental-health services or an applica­tion for court-ordered mental-health services has been filed for the patient, and (4) the patient, verbally or by other indication, refuses to take the medication voluntarily. Tex. Health & Safety Code § 574.104(a). The application must state:

1.that the physician believes that the patient lacks the capacity to make a decision regarding administration of the psychoactive medication and the reasons for that belief;

2.each medication the physician wants the court to compel the patient to take;

3.whether an application for court-ordered mental-health services under section 574.034 or 574.0345 (both temporary mental-health services) or section 574.035 or 574.0355 (both extended mental-health services) has been filed;

4.whether a court order for inpatient mental-health services for the patient has been issued and, if so, under what authority it was issued;

5.the physician’s diagnosis of the patient; and

6.the proposed method for administering the medication and, if the method is not customary, an explanation justify­ing the departure from the customary methods.

Tex. Health & Safety Code § 574.104(b).

The hearing on the application may be held on the date of a hearing on an application for court-ordered mental-health services but shall be held not later than thirty days after the filing of the application for the order to authorize psychoac­tive medication. If the hearing is not held on the same day as the application for court-ordered mental-health services and the patient is trans­ferred to a mental-health facility in another county, the court may transfer the application for an order to authorize psychoactive medica­tion to the county where the patient has been transferred. Tex. Health & Safety Code § 574.105(d).

§ 16.12:2Patient Rights—Application for Order Authorizing Psychoactive Medication

A patient for whom an application for an order to authorize the administration of a psychoactive medication is filed is entitled to (1) representa­tion by a court-appointed attorney who is knowledgeable about issues to be adjudicated at the hearing; (2) meet with that attorney as soon as is practicable to prepare for the hearing and to discuss any of the patient’s questions or con­cerns; (3) receive, immediately after the time of the hearing is set, a copy of the application and written notice of the time, place, and date of the hearing; (4) be told, at the time personal notice of the hearing is given, of the patient’s right to a hearing and right to the assistance of an attorney to prepare for the hearing and to answer any questions or concerns; (5) be present at the hear­ing; (6) request from the court an independent expert; and (7) oral notification, at the conclu­sion of the hearing, of the court’s determinations of the patient’s capacity and best interests. Tex. Health & Safety Code § 574.105.

§ 16.12:3Hearing and Order Authorizing Psychoactive Medication

The court may issue an order authorizing the administration of one or more classes of psycho­active medication to a patient who (1) is under a court order to receive inpatient mental-health services or (2) is in custody awaiting trial in a criminal proceeding and was ordered to receive inpatient mental-health services in the six months preceding a hearing under this Code sec­tion. Tex. Health & Safety Code § 574.106(a).

Practice Pointer:      When representing a patient who was committed while awaiting trial in a criminal proceeding, practitioners should be certain of the date on which the judge of the criminal court signed off on the commitment, as the application for a court order authorizing psy­choactive medication may be heard only in the first six months after the date the order commit­ting the patient was signed.

The court may issue an order authorizing the administration of psychoactive medication only if the court finds by clear and convincing evi­dence after the hearing (1) that the patient lacks the capacity to make a decision regarding the administration of the proposed medication and treatment with the proposed medication is in the best interest of the patient; or (2) if the patient was ordered to receive inpatient mental-health services by a criminal court with jurisdiction over the patient, that treatment with the pro­posed medication is in the best interest of the patient and either (a) the patient presents a dan­ger to the himself or others in the inpatient men­tal-health facility in which the patient is being treated as a result of a mental disorder or mental defect; or (b) the patient (i) has remained con­fined in a correctional facility for a period exceeding seventy-two hours while awaiting transfer for competency restoration treatment, and (ii) presents a danger to the patient or others in the correctional facility as a result of a mental disorder or mental defect. Tex. Health & Safety Code § 574.106(a–1).

In making the finding that treatment with the proposed medication is in the best interest of the patient, the court shall consider (1) the patient’s expressed preferences regarding treatment with psychoactive medication; (2) the patient’s reli­gious beliefs; (3) the risks and benefits, from the perspective of the patient, of taking psychoac­tive medication; (4) the consequences to the patient if the psychoactive medication is not administered; (5) the prognosis for the patient if the patient is treated with psychoactive medica­tion; (6) alternative, less intrusive treatments that are likely to produce the same results as treatment with psychoactive medication; and (7) less intrusive treatments likely to secure the patient’s agreement to take the psychoactive medication. Tex. Health & Safety Code § 574.106(b).

If making a finding that, as a result of a mental disorder or mental defect, the patient presents a danger to the patient or others in the inpatient mental-health facility in which the patient is being treated or in the correctional facility, as applicable, the court shall consider (1) an assess­ment of the patient’s present mental condition; (2) whether the patient has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm to the patient’s self or to another while in the facility; and (3) whether the patient, in the six months preceding the date the patient was placed in the facility, has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm to another that resulted in the patient being placed in the facility. Tex. Health & Safety Code § 574.1065.

Practice Pointer:      When representing a patient in a hearing on an application for an order authorizing psychoactive medication, the practitioner should try to elicit testimony from the patient, physician, and other witnesses on the considerations set out in the two paragraphs immediately above (described in Tex. Health & Safety Code §§ 574.106, 574.1065), provided such testimony will be favorable to the patient’s case.

A hearing under this subchapter shall be con­ducted on the record by the probate judge or judge with probate jurisdiction, except that a judge may refer a hearing to a magistrate or court-appointed associate judge who has train­ing regarding psychoactive medications, and a record is not required if the hearing is held by a magistrate or court-appointed associate judge. A party is entitled to a hearing de novo by the judge if an appeal of the magistrate’s or associ­ate judge’s report is filed with the court within three days after the report is issued. The hearing de novo shall be held within thirty days of the filing of the application for an order to authorize psychoactive medication. Tex. Health & Safety Code § 574.106(c), (d), (e).

If a hearing or an appeal of an associate judge’s or magistrate’s report is to be held in a county court in which the judge is not a licensed attor­ney, the proposed patient or the proposed patient’s attorney may request that the proceed­ing be transferred to a court with a judge who is licensed to practice law in Texas. The county judge shall transfer the case after receiving the request, and the receiving court shall hear the case as if it had been originally filed in that court. Tex. Health & Safety Code § 574.106(f).

As soon as practicable after the conclusion of the hearing, the patient is entitled to have pro­vided to himself and his attorney written notifi­cation of the court’s determinations. The notification shall include a statement of the evi­dence on which the court relied and the reasons for the court’s determinations. Tex. Health & Safety Code § 574.106(g).

An order entered under this section shall autho­rize the administration to a patient, regardless of the patient’s refusal, of one or more classes of psychoactive medications specified in the appli­cation and consistent with the patient’s diagno­sis. The order shall permit an increase or decrease in a medication’s dosage, restitution of medication authorized but discontinued during the period the order is valid, or the substitution of a medication within the same class. Tex. Health & Safety Code § 574.106(h).

§ 16.12:4Effect of Order

A person’s consent to take a psychoactive medi­cation is not valid and may not be relied on if the person is subject to an order authorizing psycho­active medication. The issuance of an order authorizing psychoactive medication is not a determination or adjudication of mental incom­petency and does not limit in any other respect that person’s rights as a citizen or the person’s property rights or legal capacity. Tex. Health & Safety Code § 574.109.

§ 16.12:5Appeal

A patient may appeal an order authorizing psy­choactive medication in the manner provided for an appeal of an order requiring court-ordered mental-health services. See section 16.10:7 above. An order authorizing the administration of medication regardless of the refusal of the patient is effective pending an appeal of the order. Tex. Health & Safety Code § 574.108.

§ 16.13Consequences Associated with Involuntary Commitment

Though court records relating to involuntary commitments are closed and medical records are protected by HIPAA laws, persons involuntarily committed for the purpose of receiving mental-health services must reveal if they have been involuntarily committed when seeking certain licenses. See Tex. Health & Safety Code § 611.002; 45 C.F.R. §§ 160, 164.

§ 16.13:1Possessing Firearms or Ammunition

Under federal law, it is unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person has been adjudicated as a mental defective or has been committed to any mental institution. See 18 U.S.C. § 922(d)(4). In addition, in Texas a per­son is ineligible to obtain a permit to carry a weapon if he has been hospitalized for a psychi­atric condition. See Tex. Gov’t Code §§ 411.172, 411.174(b)(8)(B).

§ 16.13:2Transportation Workers Identification Credential

The impact of mental-health commitments on persons seeking to become eligible or seeking recertification for a Transportation Workers Identification Credential (TWIC) should be highlighted by the attorney and considered by the patient, especially if the proposed patient is currently in an occupation that requires workers to obtain a TWIC. A TWIC is a common form of identification used by people who require access to secure locations as they work as truck drivers, longshore workers, port facility employ­ees, and merchant mariners. The TWIC applica­tion requires the applicant to disclose whether he has been involuntarily committed to a men­tal-health facility. The Transportation Security Administration (TSA) determines that an appli­cant poses a security threat warranting denial of a TWIC if the applicant has been adjudicated as lacking mental capacity or been committed to a mental-health facility. However, a waiver may be obtained that outlines procedures for waiver of mental-capacity standards. In evaluating the request for waiver, the TSA considers the cir­cumstances surrounding the commitment, court records or official medical release documents indicating that the applicant no longer lacks mental capacity, and other factors that indicate the applicant does not pose a security threat war­ranting denial of the TWIC. See 49 C.F.R. § 1572.17.

§ 16.13:3License to Practice Law

The Texas Board of Law Examiners finds eligi­ble only applicants who possess good moral character and fitness. Rule IV of the Rules Gov­erning Admission to the Bar of Texas provides that—

[t]he purpose of requiring an Appli­cant to possess this fitness is to exclude from the practice of law any person having a mental or emotional illness or condition which would be likely to prevent the person from car­rying out duties to clients, courts or the profession. A person may be of good moral character, but may be incapacitated from proper discharge of his or her duties as a lawyer by such illness or condition. The fitness required is a present fitness, and prior mental or emotional illness or condi­tions are relevant only so far as they indicate the existence of a present lack of fitness.

See Tex. Rules Govern. Bar Adm’n R. 4(c). The rules are available on the Texas Board of Law Examiners’ website at https://ble.texas.gov/rules.

§ 16.13:4License to Practice Medicine

Physicians and physicians in training (medical students, interns, and residents) must report diagnosis or treatment of a physical, mental, or emotional condition that has impaired or could impair their ability to practice medicine. In addi­tion, in Texas, a physician’s duty to report an impaired colleague is spelled out in the Medical Practice Act. The Act specifies that any physi­cian, medical student, resident, or medical peer review committee shall report relevant informa­tion to the Texas Medical Board (TMB) if, in the opinion of the person or committee, that physi­cian poses a continuing threat to the public wel­fare through the practice of medicine. If the physician refuses help or the committee believes that the physician poses a continuing threat to the public welfare through the practice of medi­cine, the law requires the committee to report the physician to the TMB and any known health-care entity in which the physician has clinical privileges. See Tex. Occ. Code §§ 160.002–.004.

§ 16.14Options Often Available to Client Facing Involuntary Commitment

Considering the consequences of an involuntary commitment, which threaten to stymie the pro­posed patient’s liberties in the future, an attor­ney representing a proposed patient facing involuntary commitment should be aware of all options available to the proposed patient.

§ 16.14:1Motion for Continuance

The final hearing on an application for inpatient commitment for temporary mental-health ser­vices must be set within fourteen days of the fil­ing of the application. As discussed at section 16.10:2 above, the court may grant one or more continuances, but a hearing must be held not later than the thirtieth day after the date on which the application was filed. Attorneys might consider requesting a continuance in the follow­ing situations, provided there is no petition for an order to administer psychoactive medication on file: (1) the proposed patient is about to be released from the hospital; (2) the proposed patient is cooperative with treatment and is experiencing his first mental breakdown or has a history of managing his illness without court intervention; or (3) the proposed patient wants his day in court but is too ill to effectively par­ticipate in the proceedings and not ill enough to warrant the attorney’s stipulation to the admis­sion of evidence supporting commitment. Con­tinuing the final hearing often gives the proposed patient the opportunity to stabilize and be released by the hospital before the final hear­ing.

§ 16.14:2Allow Patient Opportunity to Accept Treatment Voluntarily

Sometimes a particularly cooperative patient will be given the opportunity by his treating physician to convert to receiving inpatient men­tal-health services on a voluntary basis, thereby avoiding the commitment process. The patient’s attorney may also request that the doctor allow the patient to accept treatment on a voluntary basis. Accepting treatment on a voluntary basis will enable the patient to avoid commitment and the consequences associated with commitment.

Practice Pointer:      Sometimes the proposed patient has the financial ability to pay for care at a private mental hospital facility. However, pri­vate mental-health facilities often do not take patients who are unwilling to accept treatment on a voluntary basis. So if a proposed patient wishes to be transferred to a private mental-health facility, it may be necessary for the treat­ing physician to allow the patient to consent to receiving mental-health services voluntarily.

§ 16.14:3Proceed to Trial

Naturally, if the proposed patient is unwilling to wait for a continuance, wants his day in court, and is well enough to participate in the proceed­ings, the attorney is obligated to mount a defense on behalf of his client. The practitioner should consider the following before proceeding to trial: (1) the application for court-ordered mental-health services and certificates of medi­cal examination for mental health should be reviewed for technical defects and inconsisten­cies (see section 16.4:7 above); (2) if the pro­posed patient is likely to present well, the attorney should consider calling him as a wit­ness, but if the proposed patient is not likely to present well and does not wish to offer testi­mony, the attorney should explain why he is not present and ask that the court excuse his pres­ence; (3) if the proposed patient has family or friends who support the proposed patient’s desire to avoid involuntary commitment, the attorney should consider asking them to appear and offer testimony outlining why they support the proposed patient’s release; (4) the attorney should visit with the proposed patient and his social worker about plans in the event of release so that it may be demonstrated, if the patient is in fact mentally ill, that the patient has plans to manage his illness and provide for his basic needs; (5) the rules of evidence apply in the final hearing, so the attorney should make appropriate objections; and (6) the attorney should remem­ber that the judge looks out for the best interests of the proposed patient and the job of the attor­ney ad litem is to be the proposed patient’s law­yer.

§ 16.14:4Request Outpatient Commitment

Outpatient commitment as an alternative to inpatient commitment for temporary mental-health services is generally not common. A patient facing involuntary inpatient commitment likely has little insight into the severity of his ill­ness; otherwise, he would have voluntarily sought treatment. Moreover, the statute ordering inpatient services requires that the patient be unable to submit voluntarily to outpatient treat­ment. See Tex. Health & Safety Code § 574.034. Consequently, the likelihood that he will abide by the terms of outpatient commitment is remote unless the patient is fortunate enough to have a dedicated support network of family, friends, or social workers. Additionally, few mental-health treatment facilities offer support for outpatient involuntary commitments.

Increasingly, however, Texas counties are implementing assisted outpatient treatment pro­grams, providing successful alternatives to inpa­tient commitments. It is likely the court would be more amenable to outpatient commitment if (1) the proposed patient demonstrated the pres­ence of a committed, experienced, and dedicated support system; (2) the mental-health treatment facility serving the proposed patient offered a robust and reliable outpatient program designed to accept outpatient commitments; (3) the pro­posed patient did not appear to be a danger to himself or others but the agreed opinion of the physicians, as evidenced in the two certificates of medical examination for mental health, deter­mined that the proposed patient was suffering from severe distress and deterioration; and (4) outpatient commitment would be an effective form of treatment.

In 2017, the Texas legislature codified a process for court-ordered outpatient mental-health treat­ment for persons accused of nonviolent offenses so that those persons may be released on bond to receive outpatient mental-health treatment with the potential of having their charges dismissed upon successful completion of the outpatient program. See Tex. Code Crim. Proc. art. 16.23. Such nonviolent offenses do not include offenses related to intoxication including driv­ing, boating, or flying while intoxicated or intoxication assault or manslaughter. See Tex. Code Crim. Proc. art. 16.23.