Chapter 81 of the Health and Safety Code is not a common reference in many of our daily practices. Most of us have never had the occasion to read the Communicable Disease Prevention and Control Act before. However, amid this pandemic, it is worth knowing and reviewing Chapter 81. Here are a few sections to know:
Sec. 81.002. RESPONSIBILITY OF STATE AND PUBLIC. The state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease.
Sec. 81.003
(1) “Communicable disease” means an illness that occurs through the transmission of an infectious agent or its toxic products from a reservoir to a susceptible host, either directly, as from an infected person or animal, or indirectly through an intermediate plant or animal host, a vector, or the inanimate environment.
(1-a) “Emergency response employee or volunteer” means an individual acting in the course and scope of employment or service as a volunteer as emergency medical service personnel, a peace officer, a detention officer, a county jailer, or a fire fighter.
(1-b) “Designated infection control officer” means the person serving as an entity’s designated infection control officer under Section 81.012.
(2) “Health authority” means:
(A) a physician appointed as a health authority under Chapter 121 (Local Public Health Reorganization Act) or the health authority’s designee; or
(B) a physician appointed as a regional director under Chapter 121 (Local Public Health Reorganization Act) who performs the duties of a health authority or the regional director’s designee.
(7) “Public health disaster” means:
(A) a declaration by the governor of a state of disaster; and
(B) a determination by the commissioner that there exists an immediate threat from a communicable disease that:
(i) poses a high risk of death or serious long-term disability to a large number of people; and
(ii) creates a substantial risk of public exposure because of the disease’s high level of contagion or the method by which the disease is transmitted.
Sec. 81.021. PROTECTION OF PUBLIC HEALTH. The executive commissioner and department shall exercise their powers in matters relating to protecting the public health to prevent the introduction of disease into the state.
Sec. 81.081. DEPARTMENT’S DUTY. The department shall impose control measures to prevent the spread of disease in the exercise of its power to protect the public health.
Tex. Health & Safety Code § 81.085. AREA QUARANTINE; CRIMINAL PENALTY.
(a) If an outbreak of communicable disease occurs in this state, the commissioner or one or more health authorities may impose an area quarantine coextensive with the area affected. The commissioner may impose an area quarantine, if the commissioner has reasonable cause to believe that individuals or property in the area may be infected or contaminated with a communicable disease, for the period necessary to determine whether an outbreak of communicable disease has occurred. A health authority may impose the quarantine only within the boundaries of the health authority’s jurisdiction.
(b) A health authority may not impose an area quarantine until the authority consults with the department. A health authority that imposes an area quarantine shall give written notice to and shall consult with the governing body of each county and municipality in the health authority’s jurisdiction that has territory in the affected area as soon as practicable.
(c) The department may impose additional disease control measures in a quarantine area that the department considers necessary and most appropriate to arrest, control, and eradicate the threat to the public health. Absent preemptive action by the department under this chapter or by the governor under Chapter 418, Government Code (Texas Disaster Act of 1975), a health authority may impose in a quarantine area under the authority’s jurisdiction additional disease control measures that the health authority considers necessary and most appropriate to arrest, control, and eradicate the threat to the public health.
(d) If an affected area includes territory in an adjacent state, the department may enter into cooperative agreements with the appropriate officials or agencies of that state to:
(1) exchange morbidity, mortality, and other technical information;
(2) receive extrajurisdictional inspection reports;
(3) coordinate disease control measures;
(4) disseminate instructions to the population of the area, operators of interstate private or common carriers, and private vehicles in transit across state borders; and
(5) participate in other public health activities appropriate to arrest, control, and eradicate the threat to the public health.
(e) The department or health authority may use all reasonable means of communication to inform persons in the quarantine area of the department’s or health authority’s orders and instructions during the period of area quarantine. The department or health authority shall publish at least once each week during the area quarantine period, in a newspaper of general circulation in the area, a notice of the orders or instructions in force with a brief explanation of their meaning and effect. Notice by publication is sufficient to inform persons in the area of their rights, duties, and obligations under the orders or instructions.
(f) The department or, with the department’s consent, a health authority may terminate an area quarantine.
(g) To provide isolation and quarantine facilities during an area quarantine, the commissioner’s court of a county, the governing body of a municipality, or the governing body of a hospital district may suspend the admission of patients desiring admission for elective care and treatment, except for needy or indigent residents for whom the county, municipality, or district is constitutionally or statutorily required to care.
(h) A person commits an offense if the person knowingly fails or refuses to obey a rule, order, or instruction of the department or an order or instruction of a health authority issued under a department rule and published during an area quarantine under this section. An offense under this subsection is a felony of the third degree.
(i) On request of the department during a public health disaster, an individual shall disclose the individual’s immunization information. If the individual does not have updated or appropriate immunizations, the department may take appropriate action during a quarantine to protect that individual and the public from the communicable disease.
(j) A peace officer, including a sheriff or constable, may use reasonable force to:
(1) secure a quarantine area; and
(2) except as directed by the department or health authority, prevent an individual from entering or leaving the quarantine area.
SUBCHAPTER G. COURT ORDERS FOR MANAGEMENT OF PERSONS WITH COMMUNICABLE DISEASES
Sec. 81.161. MOTION FOR ORDER OF PROTECTIVE CUSTODY.
(a) A motion for an order of protective custody may be filed only in the court in which an application for a court order for the management of a person with a communicable disease is pending.
(b) The motion may be filed by the municipal, county, or district attorney on behalf of the health authority. The motion shall be filed by the attorney general at the request of the department.
(c) The motion must state that:
(1) the department or health authority has reason to believe and does believe that the person meets the criteria authorizing the court to order protective custody; and
(2) the belief is derived from:
(A) the representations of a credible person;
(B) the conduct of the person who is the subject of the motion; or
(C) the circumstances under which the person is found.
(d) The motion must be accompanied by an affidavit of medical evaluation.
(e) The judge of the court in which the application is pending may designate a magistrate to issue protective custody orders in the judge’s absence.
Sec. 81.162. ISSUANCE OF ORDER.
(a) The judge or designated magistrate may issue a protective custody order if the judge or magistrate determines:
(1) that the health authority or department has stated its opinion and the detailed basis for its opinion that the person is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to the public health; and
(2) that the person fails or refuses to comply with the written orders of the health authority or the department under Section 81.083, if applicable.
(b) Noncompliance with orders issued under Section 81.083 may be demonstrated by the person’s behavior to the extent that the person cannot remain at liberty.
(c) The judge or magistrate may consider only the application and affidavit in making a determination that the person meets the criteria prescribed by Subsection (a). If only the application and certificate are considered the judge or magistrate must determine that the conclusions of the health authority or department are adequately supported by the information provided.
(d) The judge or magistrate may take additional evidence if a fair determination of the matter cannot be made from consideration of the application and affidavit only.
(e) The judge or magistrate may issue a protective custody order for a person who is charged with a criminal offense if the person meets the requirements of this section and the head of the facility designated to detain the person agrees to the detention.
(f) Notwithstanding Section 81.161 or Subsection (c), a judge or magistrate may issue a temporary protective custody order before the filing of an application for a court order for the management of a person with a communicable disease under Section 81.151 if:
(1) the judge or magistrate takes testimony that an application under Section 81.151, together with a motion for protective custody under Section 81.161, will be filed with the court on the next business day; and
(2) the judge or magistrate determines based on evidence taken under Subsection (d) that there is probable cause to believe that the person presents a substantial risk of serious harm to himself or others to the extent that the person cannot be at liberty pending the filing of the application and motion.
(g) A temporary protective custody order issued under Subsection (f) may continue only until 4 p.m. on the first business day after the date the order is issued unless the application for a court order for the management of a person with a communicable disease and a motion for protective custody, as described by Subsection (f)(1), are filed at or before that time. If the application and motion are filed at or before 4 p.m. on the first business day after the date the order is issued, the temporary protective custody order may continue for the period reasonably necessary for the court to rule on the motion for protective custody.
(h) The judge or magistrate may direct a peace officer, including a sheriff or constable, to prevent a person who is the subject of a protective custody order from leaving the facility designated to detain the person if the court finds that a threat to the public health exists because the person may attempt to leave the facility.
Sec. 81.163. APPREHENSION UNDER ORDER.
(a) A protective custody order shall direct a peace officer, including a sheriff or constable, to take the person who is the subject of the order into protective custody and transport the person immediately to an appropriate inpatient health facility that has been designated by the commissioner as a suitable place.
(b) If an appropriate inpatient health facility is not available, the person shall be transported to a facility considered suitable by the health authority.
(c) The person shall be detained in the facility until a hearing is held under Section 81.165.
(d) A facility must comply with this section only to the extent that the commissioner determines that the facility has sufficient resources to perform the necessary services.
(e) A person may not be detained in a private health facility without the consent of the head of the facility.
(f) A protective custody order issued under Section 81.162 may direct an emergency medical services provider to provide an ambulance and staff to immediately transport the person who is the subject of the order to an appropriate inpatient health facility designated by the order or other suitable facility. The provider may seek reimbursement for the costs of the transport from any appropriate source.
Sec. 81.164. APPOINTMENT OF ATTORNEY.
(a) The judge or designated magistrate shall appoint an attorney to represent a person who is the subject of a protective custody order who does not have an attorney when the order is signed.
(b) Within a reasonable time before a hearing is held under Section 81.165, the court that ordered the protective custody shall provide the person and the person’s attorney with a written notice that states:
(1) that the person has been placed under a protective custody order;
(2) the grounds for the order; and
(3) the time and place of the hearing to determine probable cause.
Sec. 81.165. PROBABLE CAUSE HEARING.
(a) A hearing must be held to determine if:
(1) there is probable cause to believe that a person under a protective custody order presents a substantial risk of serious harm to himself or others to the extent that the person cannot be at liberty pending the hearing on a court order for the management of a person with a communicable disease; and
(2) the health authority or department has stated its opinion and the detailed basis for its opinion that the person is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to public health.
(b) The hearing must be held not later than 72 hours after the time that the person was detained under the 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 for an additional 24 hours if the judge or magistrate declares that an extreme emergency exists because of extremely hazardous weather conditions that threaten the safety of the person or another essential party to the hearing. If the area in which the person is found, or the area where the hearing will be held, is under a public health disaster, the judge or magistrate may postpone the hearing until the period of disaster is ended.
(c) A magistrate or a master appointed by the presiding judge shall conduct the hearing. The master is entitled to reasonable compensation.
(d) The person and his attorney shall have an opportunity at the hearing to appear and present evidence to challenge the allegation that the person presents a substantial risk of serious harm to himself or others. If the health authority advises the court that the person must remain in isolation or quarantine and that exposure to the judge, jurors, or the public would jeopardize the health and safety of those persons and the public health, a magistrate or a master may order that a person entitled to a hearing for a protective custody order may not appear in person and may appear only by teleconference or another means the magistrate or master finds appropriate to allow the person to speak, to interact with witnesses, and to confer with the person’s attorney.
(e) The magistrate or master may consider evidence that may not be admissible or sufficient in a subsequent commitment hearing, including letters, affidavits, and other material.
(f) The state may prove its case on the health authority’s or department’s affidavit of medical evaluation filed in support of the initial motion.
Sec. 81.166. ORDER FOR CONTINUED DETENTION.
(a) The magistrate or master shall order that a person remain in protective custody if the magistrate or master determines after the hearing that an adequate factual basis exists for probable cause to believe that the person presents a substantial risk of serious harm to himself or others to the extent that the person cannot remain at liberty pending the hearing on the application.
(b) The magistrate or master shall arrange for the person to be returned to the health facility or other suitable place, along with copies of the affidavits and other material submitted as evidence in the hearing and the notification prepared as prescribed by Subsection (d).
(c) A copy of the notification of probable cause hearing and the supporting evidence shall be filed with the district court that entered the original order of protective custody.
(d) The notification of probable cause hearing shall read as follows:
(Style of Case)
NOTIFICATION OF PROBABLE CAUSE HEARING
On this the _____ day of _________________, 20__, the undersigned hearing officer heard evidence concerning the need for protective custody of ___________ (hereinafter referred to as proposed patient). The proposed patient was given the opportunity to challenge the allegations that the proposed patient presents a substantial risk of serious harm to self or others.
The proposed patient and the proposed patient’s attorney _________________________ have been given written notice that the proposed patient was placed under an order of protective custody and the reasons for such order on ___________ (date of notice).
I have examined the affidavit of medical evaluation and ________________ (other evidence considered). Based on this evidence, I find that there is probable cause to believe that the proposed patient presents a substantial risk of serious harm to self (yes ____ or no ____) or others (yes ____ or no ____) such that the proposed patient cannot be at liberty pending final hearing because the proposed patient is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to the public health and the proposed patient has failed or refused to comply with the orders of the health authority or the Department of State Health Services delivered on __________ (date of service) ____________.
Sec. 81.167. DETENTION IN PROTECTIVE CUSTODY.
(a) The head of a facility or the facility head’s designee shall detain a person under a protective custody order in the facility pending a court order for the management of a person with a communicable disease or until the person is released or discharged under Section 81.168.
(b) A person under a protective custody order shall be detained in an appropriate inpatient health facility that has been designated by the commissioner or by a health authority and selected by the health authority under Section 81.159.
(c) A person under a protective custody order may be detained in a nonmedical facility used to detain persons who are charged with or convicted of a crime only with the consent of the medical director of the facility and only if the facility has respiratory isolation capability for airborne communicable diseases. The person may not be detained in a nonmedical facility under this subsection for longer than 72 hours, excluding Saturdays, Sundays, legal holidays, the period prescribed by Section 81.165(b) for an extreme weather emergency, and the duration of a public health disaster. The person must be isolated from any person who is charged with or convicted of a crime.
(d) The health authority shall ensure that proper isolation methods are used and medical care is made available to a person who is detained in a nonmedical facility under Subsection (c).
Sec. 81.168. RELEASE FROM DETENTION.
(a) The magistrate or master shall order the release of a person under a protective custody order if the magistrate or master determines after the hearing under Section 81.165 that no probable cause exists to believe that the person presents a substantial risk of serious harm to himself or others.
Sec. 81.169. GENERAL PROVISIONS RELATING TO HEARING.
(a) Except as provided by Subsection (b), the judge may hold a hearing on an application for a court order for the management of a person with a communicable disease 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 public or the person.
(b) On the request of the person or the person’s attorney, the hearing on the application shall be held in the county courthouse.
(c) The health authority shall advise the court on appropriate control measures to prevent the transmission of the communicable disease alleged in the application.
(d) The person is entitled to be present at the hearing. The person or the person’s attorney may waive this right.
(e) The hearing must be open to the public unless the person or the person’s attorney requests that the hearing be closed and the judge determines that there is good cause to close the hearing.
(f) The Texas Rules of Evidence apply to the hearing unless the rules are inconsistent with this chapter.
(g) The court may consider the testimony of a nonphysician health professional in addition to medical testimony.
(h) The hearing is on the record, and the state must prove each element of the application criteria by clear and convincing evidence.
(i) Notwithstanding Subsection (d), if the health authority advises the court that the person must remain in isolation or quarantine and that exposure to the judge, jurors, or the public would jeopardize the health and safety of those persons and the public health, a judge may order that a person entitled to a hearing may not appear in person and may appear only by teleconference or another means that the judge finds appropriate to allow the person to speak, to interact with witnesses, and to confer with the person’s attorney.
Sec. 81.170. RIGHT TO JURY.
(a) A hearing for temporary management must be before the court unless the person or the person’s attorney requests a jury.
(b) A hearing for extended management must be before a jury unless the person or the person’s attorney waives the right to a jury.
(c) A waiver of the right to a jury must be in writing, under oath, and signed by the person and the person’s attorney.
(d) The court may permit a waiver of the right to a jury to be withdrawn for good cause shown. The withdrawal must be made at least seven days before the date on which the hearing is scheduled.
(e) A court may not require a jury fee.
(f) The jury shall determine if the person is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health and, if the application is for inpatient treatment, has refused or failed to follow the orders of the health authority. The jury may not make a finding about the type of services to be provided to the person.
Sec. 81.171. RELEASE AFTER HEARING.
(a) The court shall enter an order denying an application for a court order for temporary or extended management if after a hearing the judge or jury fails to find, from clear and convincing evidence, that the person:
(1) is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health;
(2) has refused or failed to follow the orders of the health authority if the application is for inpatient treatment; and
(3) meets the applicable criteria for orders for the management of a person with a communicable disease.
(b) If the court denies the application, the court shall order the immediate release of a person who is not at liberty.
Sec. 81.172. ORDER FOR TEMPORARY MANAGEMENT.
(a) The judge or jury may determine that a person requires court-ordered examination, observation, isolation, or treatment only if the judge or jury finds, from clear and convincing evidence, that:
(1) the person is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health and, if the application is for inpatient treatment, has failed or refused to follow the orders of the health authority or department; and
(2) as a result of the communicable disease the person:
(A) is likely to cause serious harm to himself; or
(B) will, if not examined, observed, isolated, or treated, continue to endanger public health.
(b) The judge or jury must specify each criterion listed in Subsection (a)(2) that forms the basis for the decision.
(c) The person or the person’s attorney, by a written document filed with the court, may waive the right to cross-examine witnesses, and the court may admit, as evidence, the affidavit of medical evaluation. The affidavit admitted under this subsection constitutes competent medical testimony, and the court may make its findings solely from the affidavit.
(d) An order for temporary management shall state that examinations, treatment, and surveillance are authorized for a period not longer than 90 days.
(e) The department, with the cooperation of the head of the facility, shall submit to the court a general program of treatment to be provided. The program must be submitted not later than the 14th day after the date the order is issued and must be incorporated into the court order.
