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 * * * * *