1-1     By:  Naishtat (Senate Sponsor - Moncrief)             H.B. No. 1039

 1-2           (In the Senate - Received from the House April 27, 1997;

 1-3     April 29, 1997, read first time and referred to Committee on Health

 1-4     and Human Services; May 7, 1997, reported favorably by the

 1-5     following vote:  Yeas 11, Nays 0; May 7, 1997, 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 574.007, Health and Safety Code, is

1-11     amended by amending Subsection (b) and by adding Subsection (d) to

1-12     read as follows:

1-13           (b)  If the proposed patient's attorney requests the

1-14     information at least 48 hours before the time set for the hearing,

1-15     the county or district attorney shall, within a reasonable time

1-16     before the hearing, provide the attorney with a statement that

1-17     includes:

1-18                 (1)  the provisions of this subtitle that will be

1-19     relied on at the hearing to establish that the proposed patient

1-20     requires court-ordered temporary or extended inpatient mental

1-21     health services;

1-22                 (2)  the reasons voluntary outpatient services are not

1-23     considered appropriate for the proposed patient;

1-24                 (3) [(2)]  the name, address, and telephone number of

1-25     each witness who may testify at the hearing;

1-26                 (4) [(3)]  a brief description of the reasons [why]

1-27     court-ordered temporary or extended inpatient or outpatient, as

1-28     appropriate, mental health services are required; and

1-29                 (5) [(4)]  a list of any acts committed by the proposed

1-30     patient that the applicant will attempt to prove at the hearing.

1-31           (d)  Except as provided by this subsection, not later than 48

1-32     hours before the time set for the hearing on the petition for

1-33     commitment, the county or district attorney shall inform the

1-34     proposed patient through the proposed patient's attorney whether

1-35     the county or district attorney will request that the proposed

1-36     patient be committed to inpatient services or outpatient services.

1-37     The proposed patient, the proposed patient's attorney, and the

1-38     county or district attorney may agree to waive the requirement of

1-39     this subsection.  The waiver must be made by the proposed patient:

1-40                 (1)  orally and in the presence of the court; or

1-41                 (2)  in writing and signed and sworn to under oath by

1-42     the proposed patient and the proposed patient's attorney.

1-43           SECTION 2.  Section 574.011(a), Health and Safety Code, is

1-44     amended to read as follows:

1-45           (a)  A certificate of medical examination for mental illness

1-46     must be sworn to, dated, and signed by the examining physician.

1-47     The certificate must include:

1-48                 (1)  the name and address of the examining physician;

1-49                 (2)  the name and address of the person examined;

1-50                 (3)  the date and place of the examination;

1-51                 (4)  a brief diagnosis of the examined person's

1-52     physical and mental condition;

1-53                 (5)  the period, if any, during which the examined

1-54     person has been under the care of the examining physician;

1-55                 (6)  an accurate description of the mental health

1-56     treatment, if any, given by or administered under the direction of

1-57     the examining physician;  and

1-58                 (7)  the examining physician's opinion that:

1-59                       (A)  the examined person is mentally ill;  and

1-60                       (B)  as a result of that illness the examined

1-61     person[:]

1-62                             [(i)]  is likely to cause serious harm to

1-63     himself or[;]

1-64                             [(ii)  is likely to cause serious harm] to

 2-1     others[;] or is:

 2-2                             (i)  suffering [(iii)  will, if not

 2-3     treated, continue to suffer] severe and abnormal mental, emotional,

 2-4     or physical distress;

 2-5                             (ii)  experiencing substantial mental or

 2-6     physical[, will continue to experience] deterioration of his

 2-7     ability to function independently, which is exhibited by the

 2-8     proposed patient's  inability, except for reasons of indigence, to

 2-9     provide for the proposed patient's basic needs, including food,

2-10     clothing, health, and safety; and

2-11                             (iii)  not able [and is unable] to make a

2-12     rational and informed decision as to whether [or not] to submit to

2-13     treatment.

2-14           SECTION 3.  Subchapter A, Chapter 574, Health and Safety

2-15     Code, is amended by adding Section 574.014 to read as follows:

2-16           Sec. 574.014.  COMPILATION OF MENTAL HEALTH COMMITMENT

2-17     RECORDS.  (a) The clerk of each court with jurisdiction to order

2-18     commitment under this chapter shall provide the court each month

2-19     with a report of the number of applications for commitment orders

2-20     for involuntary mental health services filed with the court and the

2-21     disposition of those cases, including the number of commitment

2-22     orders for inpatient and outpatient mental health services.  Each

2-23     court shall:

2-24                 (1)  summarize the reports made under this section; and

2-25                 (2)  make the summary available to the department

2-26     annually.

2-27           (b)  Subsection (a) does not require the production of

2-28     confidential information or information protected under Section

2-29     571.015.

2-30           SECTION 4.  Section 574.034, Health and Safety Code, is

2-31     amended to read as follows:

2-32           Sec. 574.034.  ORDER FOR TEMPORARY MENTAL HEALTH SERVICES.

2-33     (a)  The judge [or jury] may order [determine that] a proposed

2-34     patient to receive [requires] court-ordered temporary inpatient

2-35     mental health services only if the judge or jury finds, from clear

2-36     and convincing evidence, that:

2-37                 (1)  the proposed patient is mentally ill; and

2-38                 (2)  as a result of that mental illness the proposed

2-39     patient:

2-40                       (A)  is likely to cause serious harm to himself;

2-41                       (B)  is likely to cause serious harm to others;

2-42     or

2-43                       (C)  is:

2-44                             (i)  suffering [will, if not treated,

2-45     continue to suffer] severe and abnormal mental, emotional, or

2-46     physical distress;

2-47                             (ii)  experiencing substantial mental or

2-48     physical[, will continue to experience] deterioration of the

2-49     proposed patient's [his] ability to function independently, which

2-50     is exhibited by the proposed patient's inability, except for

2-51     reasons of indigence, to provide for the proposed patient's basic

2-52     needs, including food, clothing, health, and safety; and

2-53                             (iii)  [, and is] unable to make a rational

2-54     and informed decision as to whether or not to submit to treatment.

2-55           (b)  The judge may order a proposed patient to receive

2-56     court-ordered temporary outpatient mental health services only if:

2-57                 (1)  the judge finds that appropriate mental health

2-58     services are available to the patient through:

2-59                       (A)  the local mental health authority because:

2-60                             (i)  the proposed patient is a member of a

2-61     priority population identified for those mental health services in

2-62     the department's long-range plan; and

2-63                             (ii)  the local mental health authority

2-64     determines that it has the necessary resources available; or

2-65                       (B)  another mental health services provider; and

2-66                 (2)  the judge or jury finds, from clear and convincing

2-67     evidence, that:

2-68                       (A)  the proposed patient is mentally ill;

2-69                       (B)  the nature of the mental illness is severe

 3-1     and persistent;

 3-2                       (C)  as a result of the mental illness, the

 3-3     proposed patient will, if not treated, continue to:

 3-4                             (i)  suffer severe and abnormal mental,

 3-5     emotional, or physical distress; and

 3-6                             (ii)  experience deterioration of the

 3-7     ability to function independently to the extent that the proposed

 3-8     patient will be unable to live safely in the community without

 3-9     court-ordered outpatient mental health services; and

3-10                       (D)  the proposed patient has an inability to

3-11     participate in outpatient treatment services effectively and

3-12     voluntarily, demonstrated by:

3-13                             (i)  the proposed patient's actions during

3-14     the two years preceding the hearing; or

3-15                             (ii)  specific characteristics of the

3-16     proposed patient's clinical condition that make impossible a

3-17     rational and informed decision whether to submit to voluntary

3-18     outpatient treatment.

3-19           (c)  If the judge or jury finds that the proposed patient

3-20     meets the commitment criteria prescribed by Subsection (a), the

3-21     [The] judge or jury must specify which criterion listed in

3-22     Subsection (a)(2) forms the basis for the decision.

3-23           (d) [(c)]  To be clear and convincing under Subsection (a)

3-24     [this section], the evidence must include expert testimony and,

3-25     unless waived, evidence of a recent overt act or a continuing

3-26     pattern of behavior that tends to confirm:

3-27                 (1)  the likelihood of serious harm to the proposed

3-28     patient or others; or

3-29                 (2)  the proposed patient's distress and the

3-30     deterioration of the proposed patient's ability to function.

3-31           (e)  To be clear and convincing under Subdivision (b)(2), the

3-32     evidence must include expert testimony and, unless waived, evidence

3-33     of a recent overt act or a continuing pattern of behavior that

3-34     tends to confirm:

3-35                 (1)  [or]  the proposed patient's distress;

3-36                 (2)  [and] the deterioration of ability to function

3-37     independently to the extent that the proposed patient will be

3-38     unable to live safely in the community; and

3-39                 (3)  the proposed patient's inability to participate in

3-40     outpatient treatment services effectively and voluntarily.

3-41           (f) [(d)]  The proposed patient and the proposed patient's

3-42     attorney, by a written document filed with the court, may waive the

3-43     right to cross-examine witnesses, and, if that right is waived, the

3-44     court may admit, as evidence, the certificates of medical

3-45     examination for mental illness.  The certificates admitted under

3-46     this subsection constitute competent medical or psychiatric

3-47     testimony, and the court may make its findings solely from the

3-48     certificates.  If the proposed patient and the proposed patient's

3-49     attorney do not waive in writing the right to cross-examine

3-50     witnesses, the court shall proceed to hear testimony.  The

3-51     testimony must include competent medical or psychiatric testimony.

3-52     In addition, the court may consider the testimony of a nonphysician

3-53     mental health professional as provided by Section 574.031(f).

3-54           (g) [(e)]  An order for temporary inpatient or outpatient

3-55     mental health services shall state that treatment is authorized for

3-56     not longer than 90 days.  The order may not specify a shorter

3-57     period.

3-58           (h) [(f)]  A judge may not issue an order for temporary

3-59     inpatient or outpatient mental health services for a proposed

3-60     patient who is charged with a criminal offense that involves an

3-61     act, attempt, or threat of serious bodily injury to another person.

3-62           (i)  A judge may advise, but may not compel, the proposed

3-63     patient to:

3-64                 (1)  receive treatment with psychoactive medication as

3-65     specified by the outpatient mental health services treatment plan;

3-66                 (2)  participate in counseling; and

3-67                 (3)  refrain from the use of alcohol or illicit drugs.

3-68           SECTION 5.  Section 574.035, Health and Safety Code, is

3-69     amended to read as follows:

 4-1           Sec. 574.035.  ORDER FOR EXTENDED MENTAL HEALTH SERVICES.

 4-2     (a)  The [jury, or the] judge [if the right to a jury is waived,]

 4-3     may order [determine that] a proposed patient to receive [requires]

 4-4     court-ordered extended inpatient mental health services only if the

 4-5     jury, or the judge if the right to a jury is waived, finds, from

 4-6     clear and convincing evidence, that:

 4-7                 (1)  the proposed patient is mentally ill;

 4-8                 (2)  as a result of that mental illness the proposed

 4-9     patient:

4-10                       (A)  is likely to cause serious harm to himself;

4-11                       (B)  is likely to cause serious harm to others;

4-12     or

4-13                       (C)  is:

4-14                             (i)  suffering [will, if not treated,

4-15     continue to suffer] severe and abnormal mental, emotional, or

4-16     physical distress;

4-17                             (ii)  experiencing substantial mental or

4-18     physical [, will continue to experience] deterioration of the

4-19     proposed patient's [his] ability to function independently, which

4-20     is exhibited by the proposed patient's inability, except for

4-21     reasons of indigence, to provide for the proposed patient's basic

4-22     needs, including food, clothing, health, and safety; and

4-23                             (iii)  [is] unable to make a rational and

4-24     informed decision as to whether or not to submit to treatment;

4-25                 (3)  the proposed patient's condition is expected to

4-26     continue for more than 90 days; and

4-27                 (4)  the proposed patient has received court-ordered

4-28     inpatient mental health services under this subtitle or under

4-29     Section 5, Article 46.02, Code of Criminal Procedure, for at least

4-30     60 consecutive days during the preceding 12 months.

4-31           (b)  The judge may order a proposed patient to receive

4-32     court-ordered extended outpatient mental health services only if:

4-33                 (1)  the judge finds that appropriate mental health

4-34     services are available to the patient through:

4-35                       (A)  the local mental health authority because:

4-36                             (i)  the proposed patient is a member of a

4-37     priority population identified for those mental health services in

4-38     the department's long-range plan; and

4-39                             (ii)  the local mental health authority

4-40     determines that it has the necessary resources available; or

4-41                       (B)  another mental health services provider; and

4-42                 (2)  the jury, or the judge if the right to a jury is

4-43     waived, finds from clear and convincing evidence that:

4-44                       (A)  the proposed patient is mentally ill;

4-45                       (B)  the nature of the mental illness is severe

4-46     and persistent;

4-47                       (C)  as a result of the mental illness, the

4-48     proposed patient will, if not treated, continue to:

4-49                             (i)  suffer severe and abnormal mental,

4-50     emotional, or physical distress; and

4-51                             (ii)  experience deterioration of the

4-52     ability to function independently to the extent that the proposed

4-53     patient will be unable to live safely in the community without

4-54     court-ordered outpatient mental health services;

4-55                       (D)  the proposed patient has an inability to

4-56     participate in outpatient treatment services effectively or

4-57     voluntarily, demonstrated by:

4-58                             (i)  the proposed patient's actions during

4-59     the two years preceding the hearing; or

4-60                             (ii)  specific characteristics of the

4-61     proposed patient's clinical condition that make impossible a

4-62     rational and informed decision whether to submit to voluntary

4-63     outpatient treatment;

4-64                       (E)  the proposed patient's condition is expected

4-65     to continue for more than 90 days; and

4-66                       (F)  the proposed patient has received

4-67     court-ordered inpatient mental health services under this subtitle

4-68     or under Section 5, Article 46.02, Code of Criminal Procedure, for

4-69     at least 60 consecutive days during the preceding 12 months.

 5-1           (c)  If the jury or judge finds that the proposed patient

 5-2     meets the commitment criteria prescribed by Subsection (a), the

 5-3     [The] jury or judge must specify which criterion listed in

 5-4     Subsection (a)(2) forms the basis for the decision.

 5-5           (d) [(c)]  The jury or judge is not required to make the

 5-6     finding under Subsection (a)(4) or (b)(2)(F) if the proposed

 5-7     patient has already been subject to an order for extended mental

 5-8     health services.

 5-9           (e) [(d)]  To be clear and convincing under Subsection (a)

5-10     [this section], the evidence must include expert testimony and

5-11     evidence of a recent overt act or a continuing pattern of behavior

5-12     that tends to confirm:

5-13                 (1)  the likelihood of serious harm to the proposed

5-14     patient or others; or

5-15                 (2)  the proposed patient's distress and the

5-16     deterioration of the proposed patient's ability to function.

5-17           (f)  To be clear and convincing under Subdivision (b)(2), the

5-18     evidence must include expert testimony and evidence of a recent

5-19     overt act or a continuing pattern of behavior that tends to

5-20     confirm:

5-21                 (1)  [or]  the proposed patient's distress;

5-22                 (2)  [and] the deterioration of ability to function

5-23     independently to the extent that the proposed patient will be

5-24     unable to live safely in the community; and

5-25                 (3)  the proposed patient's inability to participate in

5-26     outpatient treatment services effectively and voluntarily.

5-27           (g) [(e)]  The court may not make its findings solely from

5-28     the certificates of medical examination for mental illness but

5-29     shall hear testimony.  The court may not enter an order for

5-30     extended mental health services unless appropriate findings are

5-31     made and are supported by testimony taken at the hearing.  The

5-32     testimony must include competent medical or psychiatric testimony.

5-33           (h) [(f)]  An order for extended inpatient or outpatient

5-34     mental health services shall state that treatment is authorized for

5-35     not longer than 12 months.  The order may not specify a shorter

5-36     period.

5-37           (i) [(g)]  A judge may not issue an order for extended

5-38     inpatient or outpatient mental health services for a proposed

5-39     patient who is charged with a criminal offense that involves an

5-40     act, attempt, or threat of serious bodily injury to another person.

5-41           (j)  A judge may advise, but may not compel, the proposed

5-42     patient to:

5-43                 (1)  receive treatment with psychoactive medication as

5-44     specified by the outpatient mental health services treatment plan;

5-45                 (2)  participate in counseling; and

5-46                 (3)  refrain from the use of alcohol or illicit drugs.

5-47           SECTION 6.  Section 574.036(e), Health and Safety Code, is

5-48     amended to read as follows:

5-49           (e)  The judge may enter an order:

5-50                 (1)  committing the person to a mental health facility

5-51     for inpatient care if the trier of fact finds that the person meets

5-52     the commitment criteria prescribed by Section 574.034(a) or

5-53     574.035(a); or

5-54                 (2)  committing the person to outpatient mental health

5-55     services if the trier of fact finds that the person meets the

5-56     commitment criteria prescribed by Section 574.034(b) or 574.035(b)

5-57     [requiring the person to participate in other mental health

5-58     services, including community center programs and services provided

5-59     by a private psychiatrist or psychologist].

5-60           SECTION 7.  Section 574.065(a), Health and Safety Code, is

5-61     amended to read as follows:

5-62           (a)  The court may modify an order for outpatient services at

5-63     the modification hearing if the court determines that the patient

5-64     meets [continues to meet] the applicable criteria for court-ordered

5-65     mental health services prescribed by Section 574.034(a) [574.034]

5-66     or 574.035(a) [574.035 and that:]

5-67                 [(1)  the patient has not complied with the court's

5-68     order; or]

5-69                 [(2)  the patient's condition has deteriorated to the

 6-1     extent that outpatient services are no longer appropriate].

 6-2           SECTION 8.  This Act takes effect September 1, 1997, and

 6-3     applies to a commitment proceeding that begins on or after that

 6-4     date.  A commitment proceeding that begins before the effective

 6-5     date of this Act is governed by the law in existence on the date

 6-6     the proceeding began, and that law is continued in effect for that

 6-7     purpose.

 6-8           SECTION 9.  The importance of this legislation and the

 6-9     crowded condition of the calendars in both houses create an

6-10     emergency and an imperative public necessity that the

6-11     constitutional rule requiring bills to be read on three several

6-12     days in each house be suspended, and this rule is hereby suspended.

6-13                                  * * * * *