SRC-CDH H.B. 3135 75(R)   BILL ANALYSIS


Senate Research Center   H.B. 3135
By: Naishtat (Moncrief)
Jurisprudence
5-8-97
Engrossed


DIGEST 

During the 73rd Legislative Session, the Texas Probate Code underwent
major revisions.  Section 770 of that code was amended to prohibit a
guardian from voluntarily admitting an incapacitated person to a
residential care facility operated by the Texas Department of Mental
Health and Mental Retardation (MHMR), except for emergency care or respite
services.  Provisions in the Persons with Mental Retardation Act governing
access to mental retardation services, however, were not concurrently
changed.  This resulted in conflicting statutes, confusion, and
misinterpretation of a guardian's authority.  Additionally, there is
concern about Section 691 of the Probate Code, which contains provisions
for MHMR, Community Mental Health and Mental Retardation Centers, the
Department of Protective and Regulatory Services, and any other agency
that is directly providing services, to be appointed guardian only as last
resort.  Concern has been raised that the appointment of a health service
provider as legal guardian creates an inherent conflict of interest, as
this person may consent for whatever services he or she feels are
necessary for a ward.  H.B. 3135 makes the provisions regarding ward
commitment in the Persons with Mental Retardation Act consistent with
Section 770, Texas Probate Code.  In addition, this bill repeals Section
691, Texas Probate Code, regarding an agency as the legal guardian of last
resort. 

PURPOSE

As proposed, H.B. 3135 provides for the application for mental retardation
services by a guardian and eligibility for guardianship. 

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 593.021, Health and Safety Code, to authorize
the proposed client or the parent if the proposed client is a minor to
apply for voluntary mental retardation services under Sections 593.022,
593.026, 593.027, 593.0275, or 593.028.  Deletes existing text authorizing
the guardian of the person to apply for such services; and authorizing
certain persons to apply under Section 593.024.  Authorizes the guardian
of the proposed client to apply for services under this subchapter under
Sections 593.022, 593.027, 593.0275, and 593.028. 

SECTION 2. Repealer:  Section 691, Texas Probate Code (Agency as Last
Resort). 

SECTION 3. Effective date:  September 1, 1997.
  Makes application of this Act prospective.

SECTION 4. Emergency clause.