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.