QUESTION: Is there a conflict between Opinion 104 and Section 36 of the Mental Health Code (Art. 5547-36)?

ANSWER: No. Opinion 104 states that a judge should not "prepare applications and other legal pleadings for persons who desire to commit someone to a mental hospital." The statute provides that a motion for an order of protective custody may be filed "on the court's own motion." (Emphasis supplied.) The "court" is the judicial agency created by law for the purpose of hearing and determining issues of law and fact and authorized to exercise that power according to prescribed rules. The "judge" is the principal officer of that entity. An attempt by the judge to assist an interested person in preparing an application or pleading would conflict with the statutory duty of the judge to make for the court the judicial decision whether to initiate protective custody proceedings without an application. Such assistance would be inconsistent with the provisions of Canon 3A(4) that a judge must accord to every legally interested person the right to be heard, of Canon 3A(5) that a judge must not permit ex parte communications, and of Canon 5F that a judge may not practice law.

The judge who submitted this question also inquired whether a judge who makes an Art. 5537-36 decision to initiate a protective custody proceeding should recuse himself from making the protective custody determination under the statute. The recusal provisions that were stated in Canon 3C of the Code of Judicial Conduct are now covered by the Texas Rules of Civil Procedure. The Committee concludes that a decision on recusal is an adjudicative responsibility of the judge and that the Committee should no longer undertake to answer questions concerning recusal.

The committee also concludes that it would not be appropriate for the Committee to respond to a question concerning the meaning of the Art. 5537-36 words "on the court's own motion," because that is a question of law that must be resolved by each judge who encounters it.