1-1 By: Moncrief S.B. No. 572
1-2 (In the Senate - Filed February 15, 1995; February 16, 1995,
1-3 read first time and referred to Committee on Jurisprudence;
1-4 March 21, 1995, reported favorably by the following vote: Yeas 6,
1-5 Nays 0; March 21, 1995, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to court-ordered mental health services.
1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10 SECTION 1. Section 571.016, Health and Safety Code, is
1-11 amended to read as follows:
1-12 Sec. 571.016. REPRESENTATION OF STATE. Unless specified
1-13 otherwise, in <In> a hearing <on court-ordered mental health
1-14 services> held under this subtitle:
1-15 (1) the county attorney shall represent the state; or
1-16 (2) if the county has no county attorney, the district
1-17 attorney, the criminal district attorney, or a court-appointed
1-18 special prosecutor shall represent the state.
1-19 SECTION 2. Chapter 571, Health and Safety Code, is amended
1-20 by adding Section 571.0166 to read as follows:
1-21 Sec. 571.0166. PROCEEDINGS ON BEHALF OF THE STATE. All
1-22 applications under this subtitle shall be filed on behalf of the
1-23 State of Texas and styled "The State of Texas for the Best Interest
1-24 and Protection of (NAME) the (patient or proposed patient)."
1-25 SECTION 3. Section 571.018, Health and Safety Code, is
1-26 amended to read as follows:
1-27 Sec. 571.018. COSTS. (a) The costs for a hearing or
1-28 proceeding under this subtitle shall be paid by <A county shall pay
1-29 the costs for a hearing or proceeding under this subtitle if the
1-30 county>:
1-31 (1) the county that initiates emergency detention
1-32 procedures under Subchapter A or B, Chapter 573; or
1-33 (2) if no emergency detention procedures are
1-34 initiated, the county that <has an application for court-ordered
1-35 mental health services transferred to it under Section 574.008(b);
1-36 or>
1-37 <(3)> accepts an application for court-ordered mental
1-38 health services, <and> issues an order for protective custody, or
1-39 issues an order for temporary mental health services.
1-40 (b) The county responsible for the costs of a hearing or
1-41 proceeding under Subsection (a) shall pay the costs of all
1-42 subsequent hearings or proceedings for that person under this
1-43 subtitle until the person is discharged from mental health
1-44 services.
1-45 (c) Costs under this section include:
1-46 (1) attorney's fees;
1-47 (2) physician examination fees;
1-48 (3) compensation for court-appointed personnel listed
1-49 under Section 571.017; and
1-50 (4) expenses of transportation to a department mental
1-51 health facility or to a federal agency.
1-52 (d) <(c)> A county is entitled to reimbursement for costs
1-53 actually paid by the county from:
1-54 (1) the patient; or
1-55 (2) a person or estate liable for the patient's
1-56 support in a department mental health facility.
1-57 (e) <(d)> The state shall pay the cost of transporting a
1-58 discharged or furloughed patient to the patient's home or of
1-59 returning a patient absent without authority unless the patient or
1-60 someone responsible for the patient is able to pay the costs.
1-61 (f) <(e)> A proposed patient's county of residence shall pay
1-62 the court-approved expenses incurred under Section 574.010 if
1-63 ordered by the court under that section.
1-64 (g) <(f)> A judge who holds hearings at locations other than
1-65 the county courthouse is entitled to additional compensation as
1-66 provided by Sections 574.031(h) and (i).
1-67 (h) <(g)> The state or a county may not pay any costs for a
1-68 patient committed to a private mental hospital unless:
2-1 (1) a public facility is not available; and
2-2 (2) the commissioners court of the county authorizes
2-3 the payment, if appropriate.
2-4 (i) <(h)> The county may not require a person other than the
2-5 patient to pay any costs associated with a hearing or proceeding
2-6 under this subtitle, including a filing fee or other court costs
2-7 imposed under Chapter 118, Local Government Code, Chapter 51,
2-8 Government Code, or other law, unless the county first determines
2-9 that:
2-10 (1) the costs relate to services provided or to be
2-11 provided in a private mental hospital; or
2-12 (2) the person charged with the costs is a person or
2-13 estate liable for the patient's support in a department mental
2-14 health facility.
2-15 SECTION 4. Section 574.001, Health and Safety Code, is
2-16 amended to read as follows:
2-17 Sec. 574.001. Application for Court-Ordered Mental Health
2-18 Services. (a) A county or district attorney or other adult may
2-19 file a sworn written application for court-ordered mental health
2-20 services. Only the district or county attorney may file an
2-21 application that is not accompanied by a certificate of medical
2-22 examination.
2-23 (b) The application must be filed with the county clerk in
2-24 the county in which the proposed patient:
2-25 (1) resides;
2-26 (2) is found; or
2-27 (3) is receiving mental health services by court order
2-28 or under Subchapter A, Chapter 573.
2-29 (c) If the application is not filed in the county in which
2-30 the proposed patient resides, the court may, on request of the
2-31 proposed patient or the proposed patient's attorney and if good
2-32 cause is shown, transfer the application to that county.
2-33 (d) An application may be transferred to the county in which
2-34 the person is being detained under Subchapter B if the county to
2-35 which the application is to be transferred approves such transfer.
2-36 A transfer under this subsection does not preclude the proposed
2-37 patient from filing a motion to transfer under Subsection (c).
2-38 (e) An order transferring a criminal defendant against whom
2-39 all charges have been dismissed to the appropriate court for a
2-40 hearing on court-ordered mental health services in accordance with
2-41 Section 7, Article 46.02, Code of Criminal Procedure, serves as an
2-42 application under this section. The order must state that all
2-43 charges have been dismissed.
2-44 SECTION 5. Section 574.008, Health and Safety Code, is
2-45 amended to read as follows:
2-46 Sec. 574.008. Court Jurisdiction and Transfer. (a) A
2-47 proceeding under Subchapter C or E must be held in the statutory or
2-48 constitutional county court that has the jurisdiction of a probate
2-49 court in mental illness matters.
2-50 (b) If the hearing is to be held in a county court in which
2-51 the judge is not a licensed attorney, the proposed patient or the
2-52 proposed patient's attorney may request that the proceeding be
2-53 transferred to a court with a judge who is licensed to practice law
2-54 in this state. The county judge shall transfer the case after
2-55 receiving the request and the receiving court shall hear the case
2-56 as if it had been originally filed in that court.
2-57 (c) If a patient is receiving temporary inpatient mental
2-58 health services in a county other than the county <in which the
2-59 court> that initiated the court-ordered inpatient mental health
2-60 services <entered the temporary order is located> and the patient
2-61 requires extended inpatient mental health services, the county in
2-62 which the proceedings originated <the original order was issued>
2-63 shall pay the expenses of transporting the patient back to the
2-64 county for the hearing unless the court that entered the temporary
2-65 order arranges with the appropriate court in the county in which
2-66 the patient is receiving services to hold the hearing on
2-67 court-ordered extended inpatient mental health services before the
2-68 original order expires.
2-69 (d) If an order for outpatient services designates that such
2-70 services be provided in a county other than the county in which the
3-1 order was initiated, the court shall transfer the case to the
3-2 appropriate court in the county in which the services are being
3-3 provided. That court shall thereafter have exclusive, continuing
3-4 jurisdiction of the case, including the receipt of the general
3-5 treatment program required by Section 574.037(b).
3-6 SECTION 6. Section 574.102, Health and Safety Code, is
3-7 amended to read as follows:
3-8 Sec. 574.102. APPLICATION OF SUBCHAPTER. This subchapter
3-9 applies only to the application of medication to a patient subject
3-10 to an order for inpatient mental health services under Section
3-11 574.034 or 574.035 <who is receiving those services in a mental
3-12 health facility operated or funded by the department>.
3-13 SECTION 7. Section 574.104, Health and Safety Code, is
3-14 amended to read as follows:
3-15 Sec. 574.104. PHYSICIAN'S APPLICATION <PETITION> FOR ORDER
3-16 TO AUTHORIZE <COMPEL> PSYCHOACTIVE MEDICATION; DATE OF HEARING.
3-17 (a) A physician who is treating a patient may, on behalf of the
3-18 state, file an application in <petition> a probate court or a court
3-19 with probate jurisdiction for an order to authorize the
3-20 administration of a psychoactive medication regardless of the
3-21 patient's refusal if:
3-22 (1) the physician believes that the patient lacks the
3-23 capacity to make a decision regarding the administration of the
3-24 psychoactive medication;
3-25 (2) the physician determines that the medication is
3-26 the proper course of treatment for the patient; <and>
3-27 (3) the patient is under an order for temporary or
3-28 extended mental health services under Section 574.034 or 574.035 or
3-29 an application for court-ordered mental health services under
3-30 Section 574.034 or 574.035 has been filed for the patient; and
3-31 (4) the patient, verbally or by other indication,
3-32 refuses to take the medication voluntarily.
3-33 (b) An application <A petition> filed under this section
3-34 must state:
3-35 (1) that the physician believes that the patient lacks
3-36 the capacity to make a decision regarding administration of the
3-37 psychoactive medication and the reasons for that belief;
3-38 (2) each medication the physician wants the court to
3-39 compel the patient to take;
3-40 (3) whether an application for court-ordered mental
3-41 health services under Section 574.034 or 574.035 has been filed or
3-42 the current order for inpatient mental health services for the
3-43 patient was issued under Section 574.034 or under Section 574.035;
3-44 and
3-45 (4) the physician's diagnosis of the patient.
3-46 (c) An application <A petition> filed under this section is
3-47 separate from an application for court-ordered mental health
3-48 services.
3-49 (d) <The court with which a petition is filed under this
3-50 section shall set a hearing on the petition to be held not later
3-51 than the seventh day after the date the petition is filed.> The
3-52 hearing on the application <petition> may be held on the date of a
3-53 hearing on an application for court-ordered <extended> mental
3-54 health services under Section 574.034 or 574.035 but shall be held
3-55 not later than 30 days after the filing of the application for the
3-56 order to authorize psychoactive medication. If the hearing is not
3-57 held on the same day as the application for court-ordered mental
3-58 health services under Section 574.034 or 574.035 and the patient is
3-59 transferred to a mental health facility in another county, the
3-60 court may transfer the application for an order to authorize
3-61 psychoactive medication to the county where the patient has been
3-62 transferred. <The hearing on the petition may not be held on the
3-63 date of a hearing on an application for court-ordered temporary
3-64 mental health services under Section 574.034 unless the patient and
3-65 the patient's attorney agree in writing to have the hearing on that
3-66 date.>
3-67 (e) Subject to the requirement in Subsection (d) that the
3-68 hearing shall be held not later than 30 days after the filing of
3-69 the application, the <The> court may grant one continuance on a
3-70 party's motion and for good cause shown. The court may grant more
4-1 than one continuance only with the agreement of the parties.
4-2 SECTION 8. Section 574.105, Health and Safety Code, is
4-3 amended to read as follows:
4-4 Sec. 574.105. Rights of Patient. A patient for whom an
4-5 application <a petition> for an order to authorize the
4-6 administration of a psychoactive medication is filed is entitled
4-7 to:
4-8 (1) representation by a court-appointed attorney who
4-9 is knowledgeable about issues to be adjudicated at the hearing;
4-10 (2) meet with that attorney as soon as is practicable
4-11 to prepare for the hearing and to discuss any of the patient's
4-12 questions or concerns;
4-13 (3) receive, immediately after the time of the hearing
4-14 is set, a copy of the application <petition> and written notice of
4-15 the time, place, and date of the hearing;
4-16 (4) be told, at the time personal notice of the
4-17 hearing is given, of the patient's right to a hearing and right to
4-18 the assistance of an attorney to prepare for the hearing and to
4-19 answer any questions or concerns;
4-20 (5) be present at the hearing;
4-21 (6) request from the court an independent expert; and
4-22 (7) oral notification, at the conclusion of the
4-23 hearing, of the court's determinations of the patient's capacity
4-24 and best interests.
4-25 SECTION 9. Section 574.106, Health and Safety Code, is
4-26 amended to read as follows:
4-27 Sec. 574.106. Hearing on Patient's Capacity and Order
4-28 Authorizing Psychoactive Medication. (a) The court may issue an
4-29 order authorizing the administration of one or more classes of
4-30 psychoactive medication only if the court finds by clear and
4-31 convincing evidence after the hearing that:
4-32 (1) the patient is under an order for temporary or
4-33 extended mental health services under Section 574.034 or 574.035;
4-34 (2) the patient lacks the capacity to make a decision
4-35 regarding the administration of the proposed medication; and
4-36 (3) <(2)> treatment with the proposed medication is in
4-37 the best interest of the patient.
4-38 (b) In making its findings, the court shall consider:
4-39 (1) the patient's expressed preferences regarding
4-40 treatment with psychoactive medication;
4-41 (2) the patient's religious beliefs;
4-42 (3) the risks and benefits, from the perspective of
4-43 the patient, of taking psychoactive medication;
4-44 (4) the consequences to the patient if the
4-45 psychoactive medication is not administered;
4-46 (5) the prognosis for the patient if the patient is
4-47 treated with psychoactive medication; and
4-48 (6) alternatives to treatment with psychoactive
4-49 medication.
4-50 (c) A hearing under this subchapter shall be conducted on
4-51 the record by the probate judge or judge with probate jurisdiction,
4-52 except as provided by Subsection (d).
4-53 (d) A judge may refer a hearing to a magistrate or
4-54 court-appointed master who has training regarding psychoactive
4-55 medications. The magistrate or master may effectuate the notice,
4-56 set hearing dates, and appoint attorneys as required in this
4-57 subchapter. A record is not required if the hearing is held by a
4-58 magistrate or court-appointed master.
4-59 (e) A party is entitled to a hearing de novo by the judge if
4-60 an appeal of the magistrate's or master's report is filed with the
4-61 court within three days after the report is issued. The hearing de
4-62 novo shall be held within 30 days of the filing of the application
4-63 for an order to authorize psychoactive medication.
4-64 (f) If a hearing or an appeal of a master's or magistrate's
4-65 report is to be held in a county court in which the judge is not a
4-66 licensed attorney, the proposed patient or the proposed patient's
4-67 attorney may request that the proceeding be transferred to a court
4-68 with a judge who is licensed to practice law in this state. The
4-69 county judge shall transfer the case after receiving the request,
4-70 and the receiving court shall hear the case as if it had been
5-1 originally filed in that court.
5-2 (g) As soon as practicable after the conclusion of the
5-3 hearing, the patient is entitled to have provided to the patient
5-4 and the patient's attorney written notification of the court's
5-5 determinations under this section. The notification shall include
5-6 a statement of the evidence on which the court relied and the
5-7 reasons for the court's determinations.
5-8 (h) An order entered under this section shall authorize the
5-9 administration to a patient, regardless of the patient's refusal,
5-10 of one or more classes of psychoactive medications specified in the
5-11 application <petition> and consistent with the patient's diagnosis.
5-12 The order shall permit an increase or decrease in a medication's
5-13 dosage, restitution of medication authorized but discontinued
5-14 during the period the order is valid, or the substitution of a
5-15 medication within the same class.
5-16 (i) The classes of psychoactive medications in the order
5-17 must conform to classes determined by the department.
5-18 (j) An order issued under this section may be reauthorized
5-19 or modified on the petition of a party. The order remains in
5-20 effect pending action on a petition for reauthorization or
5-21 modification. For the purpose of this subsection, "modification"
5-22 means a change of a class of medication authorized in the order.
5-23 SECTION 10. Sections 574.107, 574.108, and 574.109, Health
5-24 and Safety Code, are amended to read as follows:
5-25 Sec. 574.107. COSTS. The costs for hearings under this
5-26 subchapter shall be paid in accordance with Sections 571.017 and
5-27 571.018.
5-28 Sec. 574.108. APPEAL. (a) A patient may appeal an order
5-29 under this subchapter in the manner provided by Section 574.070 for
5-30 an appeal of an order requiring court-ordered mental health
5-31 services.
5-32 (b) An order authorizing the administration of medication
5-33 regardless of the refusal of the patient is effective pending an
5-34 appeal of the order.
5-35 Sec. 574.109 <574.108>. EFFECT OF ORDER. (a) A person's
5-36 consent to take a psychoactive medication is not valid and may not
5-37 be relied on if the person is subject to an order issued under
5-38 Section 574.106.
5-39 (b) The issuance of an order under Section 574.106 is not a
5-40 determination or adjudication of mental incompetency and does not
5-41 limit in any other respect that person's rights as a citizen or the
5-42 person's property rights or legal capacity.
5-43 Sec. 574.110 <574.109>. EXPIRATION <AND REVIEW> OF ORDER.
5-44 <(a) The court annually shall review an order issued under Section
5-45 574.106.>
5-46 <(b)> An order issued under Section 574.106 expires on the
5-47 expiration or termination date of the order for temporary or
5-48 extended mental health services in effect when the order for
5-49 psychoactive medication is issued.
5-50 SECTION 11. The importance of this legislation and the
5-51 crowded condition of the calendars in both houses create an
5-52 emergency and an imperative public necessity that the
5-53 constitutional rule requiring bills to be read on three several
5-54 days in each house be suspended, and this rule is hereby suspended,
5-55 and that this Act take effect and be in force from and after its
5-56 passage, and it is so enacted.
5-57 * * * * *