A couple of months ago, a 911 dispatcher in Houston received a call from an employee of an insurance company who said that, while on the phone with a customer, whom we’ll call John (not his real name) she received some alarming information. John was despondent and planned to run out onto Interstate-10 to kill himself. The insurance-company employee was worried that the man was suicidal and wanted someone to check on him.
The dispatcher sent Houston Police Department (HPD) officers to the scene, which was a dilapidated residence just outside downtown Houston. There, patrol officers encountered a man lying on a mattress surrounded by food wrappers, trash, and bottles of King Cobra malt liquor. When asked by the responding officer if he had told someone that he planned to kill himself, John admitted that he had. He then became irate, accusing the officers of trying to arrest him for simply asking for help. He began yelling at one officer for keeping her hand near her holstered weapon.
The responding officers decided to contact HPD’s Crisis Intervention Response Team, a group of specially trained officers who ride with clinicians from the local mental health authority. When the closest available unit arrived at the scene, the CIRT officer began talking to John casually, even joking with him. Eventually, he calmed down and began to discuss his situation reasonably. She asked about his mental health history; he had recently been diagnosed with bipolar disorder and prescribed Depakote. She asked if he had been taking the meds as prescribed, and he replied that he had not. He said that he did not have a ride to get to a clinic and that he received only $700 in Social Security disability benefits per month. He paid $250 a month to stay in the room he called home and the rest he spent on food and clothes. She asked about the King Cobras, and he said that he drank about two a day, but then admitted he was drinking them pretty much all day and night. When she asked why, he said that he was depressed that he had no friends or family and that he could not sleep; he had nightmares that woke him up every night.
She asked about his criminal history, and John said that he was on parole from an aggravated assault that he had committed 10 years earlier (which she and the officers already knew before approaching the house). She asked if he wanted help and he said yes—he was suicidal. She asked if he would go with her to the hospital, and he agreed. After helping him up, the CIRT officer put him in handcuffs. He was then placed in the back of the patrol car and taken to the nearest inpatient facility, the Neuro-Psychiatric Center of Harris County. Upon arrival, the officer prepared a Peace Officer’s Application for Detention. Under oath, she stated that she had reason to believe that John was mentally ill and posed a substantial risk of harm to himself or others; specifically, the officer stated that the patient had been threatening to run out into traffic. The officer affirmed that immediate restraint was necessary to prevent an imminent risk. John was then admitted to the Neuro-Psychiatric Center pending forthcoming commitment proceedings.
The above situation happens on a daily basis throughout Texas and begins the process of involuntary commitment. Of course, the situation plays out differently in each county. Most will not have inpatient psychiatric hospitals or crisis intervention teams. For example, if the above had occurred in Kleberg County, the patient would be transported by the responding officer to Christus Spohn, the only hospital in Kingsville. If a social worker believed it was necessary, he would be taken by a peace officer to the nearest inpatient facility, Rio Grande State Hospital in Harlingen, or even San Antonio State Hospital, a three-hour drive from Kingsville.
Types of hearings
This article will provide an introduction to the primary types of hearings a prosecutor may encounter under the Mental Health Code. It will then discuss that code as it pertains to commitments in the Code of Criminal Procedure.
The Mental Health Code is contained in Title 7, Subtitle C of the Health & Safety Code. Of particular relevance to a county or district attorney handling involuntary commitment hearings is Subchapter 574, which relates to court-ordered mental health services.
Probable cause hearing
Within 72 hours of being detained, a patient is entitled to a probable cause hearing, governed by §574.025 of the Health & Safety Code. The State’s evidence at this stage will be one certificate of medical examination as well as a supporting affidavit, executed by the affiant who swore out the Application for Detention (the CIRT officer in the above situation).1 The affiant need not be a peace officer; any adult may apply for emergency detention.2
A medical certificate is a sworn statement executed by a physician. Medical certificates are crucial to the State in any commitment hearing. At the probable cause hearing, the State may prove its case based solely on the medical certificate if there is no objection.3 The criteria for medical certificates are set forth in §§574.009 and 574.011. A medical certificate is executed by a physician (not a psychologist) who has examined the patient within the previous 30 days. Fortunately, most inpatient psychiatric facilities are familiar with the form and function of medical certificates. Basically, the physician will swear to whether, as a result of mental illness, the patient is likely to cause serious harm to self; is likely to cause serious harm to others; or is suffering severe distress, experiencing substantial deterioration, and is not able to make a rational and informed decision as to whether to submit to treatment.4 At the probable cause hearing, only the first two criteria (harm to self or others) are relevant.5
The court must appoint an attorney ad litem to represent the patient.6 A magistrate or justice of the peace will usually preside over the hearing, which is not on the record. Often, the patient will testify on his own behalf; friends or family members may also testify. At the hearing, the magistrate may sign an order for continued detention if he finds that the patient presents a substantial risk of harm to himself or others to the extent that he cannot remain at liberty. Otherwise, if the magistrate does not make these findings, the patient will be released, pending the final hearing. The text of the court’s order is laid out, word for word, in §574.026.
Under §574.005, the final hearing must be set within 14 days of the date of the application. The date for the hearing will already be set at the time of the probable cause hearing. The court may grant continuances, but the hearing must be held within 30 days of the filing of the application. The hearing is generally subject to the Texas Rules of Evidence. The patient is entitled to be present and to a jury trial, but both can be waived in writing by the patient or his attorney. The hearing is on the record. The burden is on the State to prove all elements by clear and convincing evidence. The hearing must be open to the public, unless the defense attorney requests (and the judge finds good cause for) a closed hearing. Unlike the probable cause hearing, two medical certificates are required, each executed within 30 days of the hearing.
The prosecutor’s goal at this stage is an order for temporary mental health services under §574.034. To order this inpatient commitment, the judge must find by clear and convincing evidence that the patient is mentally ill and as a result, is likely to cause serious harm to self; is likely to cause serious harm to others; or, unlike the standard in probable cause hearings, fits the third criteria, commonly referred to as the “deterioration standard.” This third criteria applies to a patient who is experiencing severe and abnormal distress, experiencing substantial deterioration of his ability to function independently, and is unable to make a rational and informed decision as to whether or not to submit to treatment. This order expires after 90 days and may not specify a shorter period.7
These hearings normally proceed as follows: The judge swears in the patient and advises him of the basic rules, such as no interrupting. The State’s attorney will introduce the medical certificates, as well as whatever other relevant documentation is in the file. (The judge will already have these documents, so there is no need to formally introduce them into evidence.) The State will put on a doctor, ideally the treating physician, to establish the elements mentioned above. The ad litem will then cross the witness. Normally, the questions will pertain to concerns such as side effects of medication and religious objections to treatment. The ad litem may attempt to impeach the expert by asking questions such as: Did you talk to the patient’s previous primary care doctor? How many times have you seen this patient? What is the patient’s prognosis without treatment? Could this behavior be attributed to something other than mental illness? Does this behavior cause a substantial risk of harm?
The State will then call a fact witness. This witness could be a social worker at the facility who is familiar with the patient or the affiant who originally swore out the order for emergency detention. The prosecutor should be cautious when questioning the affiant, as it may be a friend or family member of the patient and may be the patient’s primary means of support upon discharge.
The ad litem will usually call the patient, who will want to testify. He will usually keep the direct examination relatively short, especially if the patient is symptomatic. On cross-examination, the State’s attorney will want to prove issues that support commitment rather than discharge. For example, the patient does not have a job, a place to live, or family members with whom to live.
Another type of hearing a prosecutor may encounter is on an order to authorize psychoactive medication. These are governed by Subchapter G of the Mental Health Code, specifically §574.106, and possibly Chapter 46B of the Code of Criminal Procedure.
These hearings are triggered when a physician files an application in a probate court to authorize the administration of psychoactive medications. According to §574.104, a treating physician may, on behalf of the State, file an application when he believes that the patient lacks the capacity to make a decision regarding medication, which is the proper course of treatment, while the patient is under an order for mental health services. A physician may also file an application when the patient is refusing to take the meds voluntarily, “verbally or by other indication.” The statute goes on to mandate that the physician must specify which medications he wants compelled, as well as the patient’s diagnosis. He must then propose a method for administering the meds and, “if the method is not customary, an explanation justifying the departure from customary methods.”
Finally, the statute holds that the application for forced meds is separate from the application for court-ordered services, but that both hearings may be held at the same time. If not, the hearing must be held within 30 days of the filing of the application. One continuance may be granted on the motion of either party, but any more may be granted only with the agreement of the parties.
To proceed to the hearing, the patient must be under an order to receive inpatient mental health services or be in custody awaiting trial in a criminal proceeding after being ordered to receive inpatient mental health services in the previous six months.8 For example, this would apply to a defendant who was committed for competency restoration under Art. 46B.073 of the Code of Criminal Procedure.
The doctor should always testify at the forced-meds hearing. Practically speaking, these hearings should be very brief, with the attorney only satisfying the elements. In addition to the normal battery of questions, a recent case has added the necessity for an additional question. State for the Best Interests of KM requires the State’s attorney to ask: “Why do you believe that the patient lacked the capacity to make a rational decision regarding the administration of psychoactive medication?”9 After the hearing, the court may order forced medications if the State proves, by clear and convincing evidence, that the patient lacks the capacity to make a decision and that it is in the patient’s best interests.10
The forced-meds issue may also arise for criminal prosecutors. Article 46B.086 of the Code of Criminal Procedure applies to defendants who have been committed for competency restoration (those determined to be incompetent, are in a correctional facility awaiting transfer to or in an inpatient facility, or are back in custody following competency restoration treatment). The criminal court will be involved in forced meds only if the facility has tried to get an order through Health and Safety Code §574.106 but the petition has been denied by a probate court, usually because more than six months have passed since the signing of the most recent commitment order. The facility is then to notify the criminal court immediately. The court must, within one business day, notify the prosecutor and defense counsel. The State then has 15 days to file a motion to compel medication. Once notice of the motion has been provided, the State has 10 days to conduct the hearing and persuade the judge to sign the order.
The State must have the testimony of two physicians, one of whom is responsible for prescribing the medication. Only one physician is required to testify, which suggests that medical certificates are necessary. The court must find by clear and convincing evidence that the meds are medically appropriate and in the patient’s best interest and that the harmful side effects do not outweigh the benefit. The State must prove that it has a clear and compelling interest in maintaining the defendant’s competency, that there are no less-invasive means, and that the meds will not unduly prejudice the defendant’s rights or use of defensive trial theories.11
Hearings on an order for extended mental health services
Finally, a State’s attorney may ask a court to issue an order for extended mental health services.12 Unlike orders for temporary mental health services, these orders expire after one year. The hearing must include live testimony, unlike temporary commitments, which can be ordered solely based on the medical certificates. More importantly, this commitment applies only to a patient who has received court-ordered inpatient services for at least 30 days in the previous 12 months, either under the Mental Health Code or Chapter 46B of the Code of Criminal Procedure, which governs incompetent defendants. Practically speaking, this type of order is rare in probate courts, as most patients will be discharged within 60 days of commitment. However, the statute becomes relevant as it applies to hearings on criminal commitments.13
In the Code of Criminal Procedure, the procedures for mental health commitments are laid out in Chapters 46B, Incompetency, and 46C, Insanity.
The first kind of 46B commitment is the Art. 46B.073 commitment for restoration of competency. Normally, these hearings will be agreed upon by each party and a formal hearing will not be necessary.14 However, if one party is contesting competency and the other disagrees, there will be a court trial, unless one party requests a jury under Art. 46B.051. This trial is similar to a trial on the merits, with only the fact-finder determining whether the defendant is competent to stand trial. The burden is on the party opposing competency to prove by a preponderance of the evidence that the defendant is not competent to stand trial.15
Similar to the initial competency proceedings, the issue of sanity can be resolved in front of the judge or a jury.16 However, insanity is an affirmative defense that is determined during the trial of the charged offense itself, rather than as a pre-trial proceeding like competency.17 Therefore, unlike initial competency determinations, the burden shifts to the defense to prove insanity by a preponderance of the evidence, once the State has proven each element of its case in chief beyond a reasonable doubt.18
After the initial commitment under Chapter 46B or 46C, the Code of Criminal Procedure refers to the Health & Safety Code to govern hearings on extended commitments. For guidelines governing the hearings’ forms, the prosecutor should refer back to H&S §574.031. Because these hearings will be for extended commitments, the heightened requirements of H&S §574.035 should be observed. Also, hearings under CCP Art. 46C.256 for 180-day recommitment on Not Guilty by Reason of Insanity (NGRI) cases consider only the dangerousness, not the deterioration, standard.19
The final NGRI inpatient commitment order is the one-year order governed by CCP Art. 46C.261. This statute does not reference the Health & Safety Code. This hearing requires only one medical certificate and allows the court to make its finding solely on the certificate as well as a detailed request for renewal, which is generally provided in advance by the state hospital to which the patient has been committed. The burden is on the State to establish by clear and convincing evidence that continued mandatory supervision and treatment are appropriate. These orders expire after one year.20 A patient may not be committed, nor may he be ordered to receive outpatient treatment, for a cumulative period that exceeds the maximum term provided by law for the offense for which the acquitted person was tried.21
The prosecutor who handles involuntarily commitments should prepare the same way as for any other contested hearing: Observe one if possible. Make a checklist to ensure all elements are met. Meet with all witnesses beforehand.
Ideally, the patient at the beginning of this article will eventually be treated in the community as a productive citizen. Patients committed involuntarily through a probate court will not go to jail or prison; the most restrictive setting they will encounter is a state hospital, which is designed to be a therapeutic community. The Mental Health Code is designed to place these patients in the least restrictive setting, with an eye toward protecting the community as well as themselves.
1 Tex. Health & Safety Code §573.002.
2 Tex. Health & Safety Code §573.011.
3 Tex. Health & Safety Code §574.025.
4 Tex. Health & Safety Code §574.011.
5 Tex. Health & Safety Code §574.025.
6 Tex. Health & Safety Code §574.003.
7 Tex. Health & Safety Code §§574.031 and 574.034.
8 Tex. Health & Safety Code §574.104 and .106.
9 No. 12-12-00267-CV, 2013 WL 3377407 (Tex.App.—Tyler, July 3, 2103, no pet.h.).
10 Tex. Health & Safety Code §574.106.
11 Tex. Code Crim. Proc. art. 46B.086.
12 Tex. Health & Safety Code §574.035.
13 Tex. Health & Safety Code §574.035.
14 Tex. Code Crim. Proc. art. 46B.054.
15 Tex. Code Crim. Proc. art. 46B.003.
16 Tex. Code Crim. Proc. arts. 46C.151, 46C.152.
17 Tex. Pen. Code §8.01.
18 Tex. Code Crim. Proc. art. 46C.153.
19Tex. Code Crim. Proc. art. 46C.256.
20 Tex. Code Crim. Proc. art. 46C.261.
21 Tex. Code Crim. Proc. art. 46C.002.