IR1 — A Consumer's Guide to The Commitment Process Under The Texas Mental Health Code:
Advocating the Legal Rights of Texans with Mental Illness
January, 1996
Whenever you are held for psychiatric evaluation against your will for longer than 24 hours, you have the right to a court hearing. If the 24-hour detention period ends on a weekend or holiday, you must be released by 4 p.m. on the next business day, unless court papers are filed. This handout tells you about your rights during the hearing process.
How does the court decide when you need to receive treatment against your will?
The only time a court can order you to accept treatment against your will is when it finds, by clear and convincing evidence based on recent acts, that the following is true:
that you are mentally ill and that you will probably seriously hurt yourself or someone else because recently you did something to make people believe you would. For example, you attempted suicide, walked into heavy traffic, or attacked someone with or without a weapon.
OR
that you are mentally ill and that you will, if not treated:
suffer serious harm from your illness,
and
that you have recently done something to make people think that you probably will become so ill that you cannot take care of yourself. For example, you refused to eat enough food to stay healthy,
and
that you are not able to make a reasonable decision about whether or not to be treated for your illness.
Under either of the above standards, the court must also find that you cannot receive the treatment you need in a less restrictive manner. This means that you have the right to treatment in a place that restricts your day-to-day life only as much as is necessary to protect and care for you and others around you. It also means that the type of treatment given to you is treatment which interferes as little as possible with your thinking, with taking care of personal needs, or with your ability to work.
In determining where you should receive care, the law requires that the court, except in emergencies, consider the recommendation of a community mental health center regarding available appropriate alternatives to commitment at a state hospital.
You Must Be Told About Your Rights.
Your must be informed of your rights in writing, and someone must explain them by speaking to you within 24 hours after you arrive at the hospital.
Basic Rights
While you are involuntarily confined in the hospital, you retain most of the basic rights of all citizens which include, but are not limited to:
- the right to marry and to have children
- the right to make decisions for your children
- the right to vote
- the right to buy and sell property
- the right to contract
- the right to religious freedom
- the right to have licenses and other benefits of the law; i.e., driver's license.
You also have the right to:
- know where you are and why you were brought there
- know that anything you say to a doctor or a hospital worker may be reported to the court at your commitment hearing
- under certain circumstances, refuse medication to treat your mental illness.
(Your rights while receiving services in the hospital are described more fully in Advocacy, Inc.'s handouts, Your Rights as a Person Receiving Inpatient Mental Health Services in Texas, and 319.htm>Your Legal Right to Refuse Medication.)
Hearing rights
Before you can be involuntarily confined to a hospital for more than 24 hours, you have the right to:
- have a court-appointed attorney within 24 hours of your admission to the hospital
- hire a private attorney of your choice, at your own expense
- know when the hearing will be as soon as the judge sets a date
- request that your commitment hearing be delayed for up to 30 days from when the original application was filed, if you and your attorney need more time to prepare your case
- be present at your hearing(s)
- testify at your hearing(s)
- cross-examine witnesses at your hearing(s)
- have language or sign interpreters to help you talk to your attorney and the judge
- ask the court in its discretion to authorize the cost of an independent psychiatrist for your defense
- have your case heard by a judge who is an attorney
- have the hearing recorded by a court reporter
- have the hearing held at a place that will not scare you or make you feel bad
- have the hearing held at the courthouse
- request a closed hearing so that only the judge, the attorneys for both sides and the people who will testify stay in the hearing room. It is up to the judge to decide whether or not to give you a closed hearing. If having a lot of people in the room scares you or makes you too embarrassed to talk to the judge, then ask for a closed hearing
- have a jury hear your case (if the state is trying to commit you on a 90-day temporary commitment. For a 12-month extended commitment, your attorney can waive your right to a jury if he or she explains to the judge on the record the reason a jury trial is being waived).
Your attorney is there to protect your rights and to tell the Court what you want.
Your attorney is required by law to:
- talk to you
- look at your records
- contact witnesses before the day of the hearing so that he or she will have enough time to prepare your case
- find out what you want and represent your point of view; for example, that you do not want to stay in the hospital or that you do not agree with your treatment
- explore treatment alternatives that might be available to you and present them to the judge, and advocate for the least restrictive alternative, if you so desire
- explain the legal consequences of each choice you make.
It is also good legal practice for your attorney to:
- explain what is going to happen at the hearing
- explain what the other side is likely to ask you
- explain what choices you may be offered at the hearing.
What may happen at the hearing?
- Most hearings are held at the hospital.
- You will sit at a table with the judge, attorneys for the state and your attorney.
- The state will call witnesses to testify about why you need to be hospitalized. Doctors, social workers, and other hospital workers may give their opinion about your condition. Family members may also talk about any recent incidents that made them believe you should be in the hospital.
- Your attorney will ask these witnesses questions about what they say.
- Your attorney will then present your side of the case. You and other witnesses will have a chance to testify as to why you do not need to stay in the hospital.
- The judge will then decide if you need to be committed and, if so, where you will receive treatment.
What may the judge order?
Depending upon the type of hearing, the judge may:
- discharge you
- hold you for 14 days in the hospital if probable cause is shown [Order of Protective Custody]
- commit you for 90 days to the hospital [Temporary Commitment]
- commit you for 12 months to the hospital [Extended Commitment]
- commit you to an out-patient program
If you are committed to out-patient services, the judge will tell the head of the community mental health program to provide mental health services for you. This person must tell the judge if you do not do the things that he or she has ordered. The judge may then call a new hearing to decide if you should go to a hospital.
Types of Commitment Hearings
Order of Protective Custody: This is a 14-day commitment. A hearing, called a probable cause hearing, must be held within 72 hours from the time you are admitted to the hospital, or if the 72 hours end on a weekend or holiday, on the next business day. The state must show that they have good reason (probable cause) to believe that you are mentally ill and that there is a substantial risk that you will seriously harm yourself or someone else if you are not confined. Only one physician must examine you and tell the judge why he or she believes that you need to be hospitalized. If the judge decides that you should be hospitalized, he or she may order you to stay in the hospital up to 14 days.
Temporary Commitment: This is a commitment for up to 90 days. A hearing must be held within 14 days from the time you are admitted to the hospital. Certificates signed by two doctors stating that they have examined you within 30 days and saying why they believe that you should be hospitalized are necessary for this hearing. The doctors who sign the certificates are often not the ones who testify at your hearing. If the judge agrees with the doctors, he or she may order you to stay in the hospital for up to 90 days. You have the right to a jury trial.
Extended Commitment: This is a 12-month commitment. You may only be committed on an extended commitment if you have received court ordered in-patient treatment for 60 days in a row during the past 12 months. You will have a jury trial unless you or your attorney decide you do not want one and waive this right in writing.
If this is your first extended commitment, at least one doctor must testify in person at this hearing that the condition for which you need hospitalization will continue for more than 90 days. If the judge or jury agrees, you will have to stay in the hospital for up to 12 months. At the end of that 12 months, if your doctor thinks you still to be in the hospital, he or she can file papers with the court, and a hearing will be held. If you meet the commitment criteria, the court can commit you for another 12 months.
WHETHER YOU ARE COMMITTED ON AN ORDER OF PROTECTIVE CUSTODY, A TEMPORARY OR EXTENDED COMMITMENT, THE HOSPITAL HAS THE RIGHT TO DISCHARGE YOU AT ANY TIME THAT YOUR TREATMENT TEAM DETERMINES THAT YOU NO LONGER NEED COURT-ORDERED SERVICES.
What can you do if you do not agree with the judge?
If you do not agree with the judge's order in any of the types of hearings discussed in this handout, you or your attorney may:
- file a written appeal of the judge's decision within ten days of the date that the order was signed;
- write to the court to request a rehearing or a modification of the commitment order;
- file a written petition for habeas corpus which means that you ask the judge to find that you should not be in the hospital.
If you have questions about your commitment or your rights, here are some people that you can call:
Advocacy, Incorporated
Voice or TDD
512/454-4816
Toll Free:
1-800-315-3876 or
1-800-252-9108 (Austin)
1-800-880-2884 (Dallas)
1-800-880-0821 (Houston)
1-800-880-4456 (Lubbock)
1-800-880-8401 (Pharr)
Office of Clients Services and Rights Protection of TDMHMR
512/206-5760 or
1-800-252-8154 Toll Free
Texas Civil Liberties Union
512/441-0077
If you feel that your attorney did not prepare for your case or that he or she failed to represent your point of view to the judge, you may wish to report the attorney's behavior to the ethics committee of the State Bar of Texas. That address is:
State Bar of Texas
1414 Colorado
P. O. Box 12487
Austin, Texas 78711-2487
512/463-1463
Advocacy, Incorporated's goal is to make each handout understandable by and useful to the general public. If you have suggestions on how this handout can be improved, please contact Advocacy, Inc. at the address and telephone number shown on Advocacy's home page or e-mail Advocacy, Inc. at infoai@advocacyinc.org. Thank you for your assistance. This handout is available in Braille and/or on audio tape upon request. Advocacy, Inc. strives to update its materials on an annual basis, and this handout is based upon the law at the time it was written. The law changes frequently and is subject to various interpretations by different courts. Future changes in the law may make some information in this handout inaccurate. The handout is not intended to and does not replace an attorney's advice or assistance based on your particular situation.