BG C.S.H.B. 3135 75(R)BILL ANALYSIS PUBLIC HEALTH C.S.H.B. 3135 4-16-97 Committee Report (Substituted) BACKGROUND Major revisions in the Texas Probate Code regarding guardianship occurred in the 73rd Legislative session. Section 770 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 (TDMHMR), 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 TDMHMR, Community Mental Health and Mental Retardation Centers, the Department of Protective and Regulatory Services (DRS), and any other agency that is directly providing services, to be appointed guardian only as last resort. 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 their ward. PURPOSE CSHB 3135 makes the provisions regarding ward commitment in the Persons with Mental Retardation Act consistent with Section 770, Texas Probate Code. CSHB 3135 also repeals Section 691, Texas Probate Code, regarding an agency as the legal guardian of last resort. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 593.021, Health and Safety Code as follows: Subsection (a) makes conforming and nonsubstantive language changes, and adds references to Sections 593.026, 593.027, 593.0275, and 593.028. Subsection (b) is added to allow a guardian of the proposed client to apply for services, as specified. SECTION 2. Repeals Section 691, Texas Probate Code. SECTION 3. Establishes that the effective date of this Act is September 1, 1997 and applies only to an application for mental retardation services made on or after that date. SECTION 4. Emergency Clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute bill clarifies that a guardian can apply for all community mental retardation services and emergency and respite services under Sections 593.022, 593.026, 593.027, 593.0275, or 593.028. This is consistent with the provisions of Section 770 of the Texas Probate Code.