75R6873 JJT-D
By Naishtat H.B. No. 1039
Substitute the following for H.B. No. 1039:
By Maxey C.S.H.B. No. 1039
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to court-ordered mental health services.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 574.007, Health and Safety Code, is
1-5 amended by amending Subsection (b) and by adding Subsection (d) to
1-6 read as follows:
1-7 (b) If the proposed patient's attorney requests the
1-8 information at least 48 hours before the time set for the hearing,
1-9 the county or district attorney shall, within a reasonable time
1-10 before the hearing, provide the attorney with a statement that
1-11 includes:
1-12 (1) the provisions of this subtitle that will be
1-13 relied on at the hearing to establish that the proposed patient
1-14 requires court-ordered temporary or extended inpatient mental
1-15 health services;
1-16 (2) the reasons voluntary outpatient services are not
1-17 considered appropriate for the proposed patient;
1-18 (3) [(2)] the name, address, and telephone number of
1-19 each witness who may testify at the hearing;
1-20 (4) [(3)] a brief description of the reasons [why]
1-21 court-ordered temporary or extended inpatient or outpatient, as
1-22 appropriate, mental health services are required; and
1-23 (5) [(4)] a list of any acts committed by the proposed
1-24 patient that the applicant will attempt to prove at the hearing.
2-1 (d) Except as provided by this subsection, not later than 48
2-2 hours before the time set for the hearing on the petition for
2-3 commitment, the county or district attorney shall inform the
2-4 proposed patient through the proposed patient's attorney whether
2-5 the county or district attorney will request that the proposed
2-6 patient be committed to inpatient services or outpatient services.
2-7 The proposed patient, the proposed patient's attorney, and the
2-8 county or district attorney may agree to waive the requirement of
2-9 this subsection. The waiver must be made by the proposed patient:
2-10 (1) orally and in the presence of the court; or
2-11 (2) in writing and signed and sworn to under oath by
2-12 the proposed patient and the proposed patient's attorney.
2-13 SECTION 2. Section 574.011(a), Health and Safety Code, is
2-14 amended to read as follows:
2-15 (a) A certificate of medical examination for mental illness
2-16 must be sworn to, dated, and signed by the examining physician.
2-17 The certificate must include:
2-18 (1) the name and address of the examining physician;
2-19 (2) the name and address of the person examined;
2-20 (3) the date and place of the examination;
2-21 (4) a brief diagnosis of the examined person's
2-22 physical and mental condition;
2-23 (5) the period, if any, during which the examined
2-24 person has been under the care of the examining physician;
2-25 (6) an accurate description of the mental health
2-26 treatment, if any, given by or administered under the direction of
2-27 the examining physician; and
3-1 (7) the examining physician's opinion that:
3-2 (A) the examined person is mentally ill; and
3-3 (B) as a result of that illness the examined
3-4 person[:]
3-5 [(i)] is likely to cause serious harm to
3-6 himself or[;]
3-7 [(ii) is likely to cause serious harm] to
3-8 others[;] or is:
3-9 (i) suffering [(iii) will, if not
3-10 treated, continue to suffer] severe and abnormal mental, emotional,
3-11 or physical distress;
3-12 (ii) experiencing substantial mental or
3-13 physical[, will continue to experience] deterioration of his
3-14 ability to function independently, which is exhibited by the
3-15 proposed patient's inability, except for reasons of indigence, to
3-16 provide for the proposed patient's basic needs, including food,
3-17 clothing, health, and safety; and
3-18 (iii) not able [and is unable] to make a
3-19 rational and informed decision as to whether [or not] to submit to
3-20 treatment.
3-21 SECTION 3. Subchapter A, Chapter 574, Health and Safety
3-22 Code, is amended by adding Section 574.014 to read as follows:
3-23 Sec. 574.014. COMPILATION OF MENTAL HEALTH COMMITMENT
3-24 RECORDS. (a) The clerk of each court with jurisdiction to order
3-25 commitment under this chapter shall provide the court each month
3-26 with a report of the number of applications for commitment orders
3-27 for involuntary mental health services filed with the court and the
4-1 disposition of those cases, including the number of commitment
4-2 orders for inpatient and outpatient mental health services. Each
4-3 court shall:
4-4 (1) summarize the reports made under this section; and
4-5 (2) make the summary available to the department
4-6 annually.
4-7 (b) Subsection (a) does not require the production of
4-8 confidential information or information protected under Section
4-9 571.015.
4-10 SECTION 4. Section 574.034, Health and Safety Code, is
4-11 amended to read as follows:
4-12 Sec. 574.034. ORDER FOR TEMPORARY MENTAL HEALTH SERVICES.
4-13 (a) The judge [or jury] may order [determine that] a proposed
4-14 patient to receive [requires] court-ordered temporary inpatient
4-15 mental health services only if the judge or jury finds, from clear
4-16 and convincing evidence, that:
4-17 (1) the proposed patient is mentally ill; and
4-18 (2) as a result of that mental illness the proposed
4-19 patient:
4-20 (A) is likely to cause serious harm to himself;
4-21 (B) is likely to cause serious harm to others;
4-22 or
4-23 (C) is:
4-24 (i) suffering [will, if not treated,
4-25 continue to suffer] severe and abnormal mental, emotional, or
4-26 physical distress;
4-27 (ii) experiencing substantial mental or
5-1 physical[, will continue to experience] deterioration of the
5-2 proposed patient's [his] ability to function independently, which
5-3 is exhibited by the proposed patient's inability, except for
5-4 reasons of indigence, to provide for the proposed patient's basic
5-5 needs, including food, clothing, health, and safety; and
5-6 (iii) [, and is] unable to make a rational
5-7 and informed decision as to whether or not to submit to treatment.
5-8 (b) The judge may order a proposed patient to receive
5-9 court-ordered temporary outpatient mental health services only if:
5-10 (1) the judge finds that appropriate mental health
5-11 services are available to the patient through:
5-12 (A) the local mental health authority because:
5-13 (i) the proposed patient is a member of a
5-14 priority population identified for those mental health services in
5-15 the department's long-range plan; and
5-16 (ii) the local mental health authority
5-17 determines that it has the necessary resources available; or
5-18 (B) another mental health services provider; and
5-19 (2) the judge or jury finds, from clear and convincing
5-20 evidence, that:
5-21 (A) the proposed patient is mentally ill;
5-22 (B) the nature of the mental illness is severe
5-23 and persistent;
5-24 (C) as a result of the mental illness, the
5-25 proposed patient will, if not treated, continue to:
5-26 (i) suffer severe and abnormal mental,
5-27 emotional, or physical distress; and
6-1 (ii) experience deterioration of the
6-2 ability to function independently to the extent that the proposed
6-3 patient will be unable to live safely in the community without
6-4 court-ordered outpatient mental health services; and
6-5 (D) the proposed patient has an inability to
6-6 participate in outpatient treatment services effectively and
6-7 voluntarily, demonstrated by:
6-8 (i) the proposed patient's actions during
6-9 the two years preceding the hearing; or
6-10 (ii) specific characteristics of the
6-11 proposed patient's clinical condition that make impossible a
6-12 rational and informed decision whether to submit to voluntary
6-13 outpatient treatment.
6-14 (c) If the judge or jury finds that the proposed patient
6-15 meets the commitment criteria prescribed by Subsection (a), the
6-16 [The] judge or jury must specify which criterion listed in
6-17 Subsection (a)(2) forms the basis for the decision.
6-18 (d) [(c)] To be clear and convincing under Subsection (a)
6-19 [this section], the evidence must include expert testimony and,
6-20 unless waived, evidence of a recent overt act or a continuing
6-21 pattern of behavior that tends to confirm:
6-22 (1) the likelihood of serious harm to the proposed
6-23 patient or others; or
6-24 (2) the proposed patient's distress and the
6-25 deterioration of the proposed patient's ability to function.
6-26 (e) To be clear and convincing under Subdivision (b)(2), the
6-27 evidence must include expert testimony and, unless waived, evidence
7-1 of a recent overt act or a continuing pattern of behavior that
7-2 tends to confirm:
7-3 (1) [or] the proposed patient's distress;
7-4 (2) [and] the deterioration of ability to function
7-5 independently to the extent that the proposed patient will be
7-6 unable to live safely in the community; and
7-7 (3) the proposed patient's inability to participate in
7-8 outpatient treatment services effectively and voluntarily.
7-9 (f) [(d)] The proposed patient and the proposed patient's
7-10 attorney, by a written document filed with the court, may waive the
7-11 right to cross-examine witnesses, and, if that right is waived, the
7-12 court may admit, as evidence, the certificates of medical
7-13 examination for mental illness. The certificates admitted under
7-14 this subsection constitute competent medical or psychiatric
7-15 testimony, and the court may make its findings solely from the
7-16 certificates. If the proposed patient and the proposed patient's
7-17 attorney do not waive in writing the right to cross-examine
7-18 witnesses, the court shall proceed to hear testimony. The
7-19 testimony must include competent medical or psychiatric testimony.
7-20 In addition, the court may consider the testimony of a nonphysician
7-21 mental health professional as provided by Section 574.031(f).
7-22 (g) [(e)] An order for temporary inpatient or outpatient
7-23 mental health services shall state that treatment is authorized for
7-24 not longer than 90 days. The order may not specify a shorter
7-25 period.
7-26 (h) [(f)] A judge may not issue an order for temporary
7-27 inpatient or outpatient mental health services for a proposed
8-1 patient who is charged with a criminal offense that involves an
8-2 act, attempt, or threat of serious bodily injury to another person.
8-3 (i) A judge may advise, but may not compel, the proposed
8-4 patient to:
8-5 (1) receive treatment with psychoactive medication as
8-6 specified by the outpatient mental health services treatment plan;
8-7 (2) participate in counseling; and
8-8 (3) refrain from the use of alcohol or illicit drugs.
8-9 SECTION 5. Section 574.035, Health and Safety Code, is
8-10 amended to read as follows:
8-11 Sec. 574.035. ORDER FOR EXTENDED MENTAL HEALTH SERVICES.
8-12 (a) The [jury, or the] judge [if the right to a jury is waived,]
8-13 may order [determine that] a proposed patient to receive [requires]
8-14 court-ordered extended inpatient mental health services only if the
8-15 jury, or the judge if the right to a jury is waived, finds, from
8-16 clear and convincing evidence, that:
8-17 (1) the proposed patient is mentally ill;
8-18 (2) as a result of that mental illness the proposed
8-19 patient:
8-20 (A) is likely to cause serious harm to himself;
8-21 (B) is likely to cause serious harm to others;
8-22 or
8-23 (C) is:
8-24 (i) suffering [will, if not treated,
8-25 continue to suffer] severe and abnormal mental, emotional, or
8-26 physical distress;
8-27 (ii) experiencing substantial mental or
9-1 physical [, will continue to experience] deterioration of the
9-2 proposed patient's [his] ability to function independently, which
9-3 is exhibited by the proposed patient's inability, except for
9-4 reasons of indigence, to provide for the proposed patient's basic
9-5 needs, including food, clothing, health, and safety; and
9-6 (iii) [is] unable to make a rational and
9-7 informed decision as to whether or not to submit to treatment;
9-8 (3) the proposed patient's condition is expected to
9-9 continue for more than 90 days; and
9-10 (4) the proposed patient has received court-ordered
9-11 inpatient mental health services under this subtitle or under
9-12 Section 5, Article 46.02, Code of Criminal Procedure, for at least
9-13 60 consecutive days during the preceding 12 months.
9-14 (b) The judge may order a proposed patient to receive
9-15 court-ordered extended outpatient mental health services only if:
9-16 (1) the judge finds that appropriate mental health
9-17 services are available to the patient through:
9-18 (A) the local mental health authority because:
9-19 (i) the proposed patient is a member of a
9-20 priority population identified for those mental health services in
9-21 the department's long-range plan; and
9-22 (ii) the local mental health authority
9-23 determines that it has the necessary resources available; or
9-24 (B) another mental health services provider; and
9-25 (2) the jury, or the judge if the right to a jury is
9-26 waived, finds from clear and convincing evidence that:
9-27 (A) the proposed patient is mentally ill;
10-1 (B) the nature of the mental illness is severe
10-2 and persistent;
10-3 (C) as a result of the mental illness, the
10-4 proposed patient will, if not treated, continue to:
10-5 (i) suffer severe and abnormal mental,
10-6 emotional, or physical distress; and
10-7 (ii) experience deterioration of the
10-8 ability to function independently to the extent that the proposed
10-9 patient will be unable to live safely in the community without
10-10 court-ordered outpatient mental health services;
10-11 (D) the proposed patient has an inability to
10-12 participate in outpatient treatment services effectively or
10-13 voluntarily, demonstrated by:
10-14 (i) the proposed patient's actions during
10-15 the two years preceding the hearing; or
10-16 (ii) specific characteristics of the
10-17 proposed patient's clinical condition that make impossible a
10-18 rational and informed decision whether to submit to voluntary
10-19 outpatient treatment;
10-20 (E) the proposed patient's condition is expected
10-21 to continue for more than 90 days; and
10-22 (F) the proposed patient has received
10-23 court-ordered inpatient mental health services under this subtitle
10-24 or under Section 5, Article 46.02, Code of Criminal Procedure, for
10-25 at least 60 consecutive days during the preceding 12 months.
10-26 (c) If the jury or judge finds that the proposed patient
10-27 meets the commitment criteria prescribed by Subsection (a), the
11-1 [The] jury or judge must specify which criterion listed in
11-2 Subsection (a)(2) forms the basis for the decision.
11-3 (d) [(c)] The jury or judge is not required to make the
11-4 finding under Subsection (a)(4) or (b)(2)(F) if the proposed
11-5 patient has already been subject to an order for extended mental
11-6 health services.
11-7 (e) [(d)] To be clear and convincing under Subsection (a)
11-8 [this section], the evidence must include expert testimony and
11-9 evidence of a recent overt act or a continuing pattern of behavior
11-10 that tends to confirm:
11-11 (1) the likelihood of serious harm to the proposed
11-12 patient or others; or
11-13 (2) the proposed patient's distress and the
11-14 deterioration of the proposed patient's ability to function.
11-15 (f) To be clear and convincing under Subdivision (b)(2), the
11-16 evidence must include expert testimony and evidence of a recent
11-17 overt act or a continuing pattern of behavior that tends to
11-18 confirm:
11-19 (1) [or] the proposed patient's distress;
11-20 (2) [and] the deterioration of ability to function
11-21 independently to the extent that the proposed patient will be
11-22 unable to live safely in the community; and
11-23 (3) the proposed patient's inability to participate in
11-24 outpatient treatment services effectively and voluntarily.
11-25 (g) [(e)] The court may not make its findings solely from
11-26 the certificates of medical examination for mental illness but
11-27 shall hear testimony. The court may not enter an order for
12-1 extended mental health services unless appropriate findings are
12-2 made and are supported by testimony taken at the hearing. The
12-3 testimony must include competent medical or psychiatric testimony.
12-4 (h) [(f)] An order for extended inpatient or outpatient
12-5 mental health services shall state that treatment is authorized for
12-6 not longer than 12 months. The order may not specify a shorter
12-7 period.
12-8 (i) [(g)] A judge may not issue an order for extended
12-9 inpatient or outpatient mental health services for a proposed
12-10 patient who is charged with a criminal offense that involves an
12-11 act, attempt, or threat of serious bodily injury to another person.
12-12 (j) A judge may advise, but may not compel, the proposed
12-13 patient to:
12-14 (1) receive treatment with psychoactive medication as
12-15 specified by the outpatient mental health services treatment plan;
12-16 (2) participate in counseling; and
12-17 (3) refrain from the use of alcohol or illicit drugs.
12-18 SECTION 6. Section 574.036(e), Health and Safety Code, is
12-19 amended to read as follows:
12-20 (e) The judge may enter an order:
12-21 (1) committing the person to a mental health facility
12-22 for inpatient care if the trier of fact finds that the person meets
12-23 the commitment criteria prescribed by Section 574.034(a) or
12-24 574.035(a); or
12-25 (2) committing the person to outpatient mental health
12-26 services if the trier of fact finds that the person meets the
12-27 commitment criteria prescribed by Section 574.034(b) or 574.035(b)
13-1 [requiring the person to participate in other mental health
13-2 services, including community center programs and services provided
13-3 by a private psychiatrist or psychologist].
13-4 SECTION 7. Section 574.065(a), Health and Safety Code, is
13-5 amended to read as follows:
13-6 (a) The court may modify an order for outpatient services at
13-7 the modification hearing if the court determines that the patient
13-8 meets [continues to meet] the applicable criteria for court-ordered
13-9 mental health services prescribed by Section 574.034(a) [574.034]
13-10 or 574.035(a) [574.035 and that:]
13-11 [(1) the patient has not complied with the court's
13-12 order; or]
13-13 [(2) the patient's condition has deteriorated to the
13-14 extent that outpatient services are no longer appropriate].
13-15 SECTION 8. This Act takes effect September 1, 1997, and
13-16 applies to a commitment proceeding that begins on or after that
13-17 date. A commitment proceeding that begins before the effective
13-18 date of this Act is governed by the law in existence on the date
13-19 the proceeding began, and that law is continued in effect for that
13-20 purpose.
13-21 SECTION 9. The importance of this legislation and the
13-22 crowded condition of the calendars in both houses create an
13-23 emergency and an imperative public necessity that the
13-24 constitutional rule requiring bills to be read on three several
13-25 days in each house be suspended, and this rule is hereby suspended.