By Thompson                                     H.B. No. 2835

      75R8773 JMC-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the requirement of a jury for certain juvenile court

 1-3     proceedings involving children with mental illness.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Sections 55.04(c)-(h), Family Code, are amended

 1-6     to read as follows:

 1-7           (c)  The court or jury shall determine whether the child is

 1-8     unfit to proceed as a result of [mental illness or] mental

 1-9     retardation at a hearing separate from the adjudication hearing.

1-10           (d)  The issue of whether the child is unfit to proceed as a

1-11     result of mental illness may be determined only by a jury at a

1-12     hearing separate from the adjudication hearing.

1-13           (e)  Unfitness to proceed as a result of mental illness or

1-14     mental retardation must be proved by a preponderance of the

1-15     evidence.

1-16           (f) [(e)]  If the court or jury, as appropriate, determines

1-17     that the child is fit to proceed, the juvenile court shall continue

1-18     with proceedings under this title as though no question of fitness

1-19     to proceed had been raised.

1-20           (g) [(f)]  If the court or jury, as appropriate, determines

1-21     that the child is unfit to proceed as a result of mental illness or

1-22     mental retardation, the court shall initiate proceedings under

1-23     Section 55.02 or [Section] 55.03 [of this chapter].

1-24           (h) [(g)]  A proceeding to determine fitness to proceed may

 2-1     be joined with proceedings under Sections 55.02 and 55.03 [of this

 2-2     chapter].

 2-3           (i) [(h)]  The fact that the child is unfit to proceed as a

 2-4     result of mental illness or mental retardation does not preclude

 2-5     any legal objection to the juvenile court proceedings which is

 2-6     susceptible of fair determination prior to the adjudication hearing

 2-7     and without the personal participation of the child.

 2-8           SECTION 2.  Sections 55.05(c)-(g), Family Code, are amended

 2-9     to read as follows:

2-10           (c)  The issue of whether the child is not responsible for

2-11     the child's [his] conduct as a result of [mental illness or] mental

2-12     retardation shall be tried to the court or jury in the adjudication

2-13     hearing.

2-14           (d)  The issue of whether the child is not responsible for

2-15     the child's conduct as a result of mental illness may be determined

2-16     only by a jury in the adjudication hearing.

2-17           (e)  Lack of responsibility for conduct as a result of mental

2-18     illness or mental retardation must be proved by a preponderance of

2-19     the evidence.

2-20           (f) [(e)]  In its findings or verdict the court or jury, as

2-21     appropriate, must state whether the child is not responsible for

2-22     the child's [his] conduct as a result of mental illness or mental

2-23     retardation.

2-24           (g) [(f)]  If the court or jury, as appropriate, finds the

2-25     child is not responsible for the child's [his] conduct as a result

2-26     of mental illness or mental retardation, the court shall initiate

2-27     proceedings under Section 55.02 or 55.03 [of this chapter].

 3-1           (h) [(g)]  A child found not responsible for the child's

 3-2     [his] conduct as a result of mental illness or mental retardation

 3-3     shall not be subject to proceedings under this title with respect

 3-4     to such conduct, other than proceedings under Section 55.02 or

 3-5     55.03 [of this chapter].

 3-6           SECTION 3.  Section 574.032, Health and Safety Code, is

 3-7     amended to read as follows:

 3-8           Sec. 574.032.  RIGHT TO JURY.  (a)  Except as provided by

 3-9     Subsection (c), a [A] hearing for temporary mental health services

3-10     must be before the court unless the proposed patient or the

3-11     proposed patient's attorney requests a jury.

3-12           (b)  Except as provided by Subsection (c), a [A] hearing for

3-13     extended mental health services must be before a jury unless the

3-14     proposed patient or the proposed patient's attorney waives the

3-15     right to a jury.

3-16           (c)  A hearing for temporary or extended mental health

3-17     services initiated by a juvenile court under Section 55.02, Family

3-18     Code, must be before a jury.  The proposed patient or the proposed

3-19     patient's attorney may not waive the right to a jury in a hearing

3-20     initiated under Section 55.02, Family Code.

3-21           (d)  A waiver of the right to a jury under Subsection (b)

3-22     must be in writing, under oath, and signed and sworn to by the

3-23     proposed patient and the proposed patient's attorney unless the

3-24     proposed patient or the attorney orally waives the right to a jury

3-25     in the court's presence.

3-26           (e) [(d)]  The court may permit an oral or written waiver of

3-27     the right to a jury to be withdrawn for good cause shown.  The

 4-1     withdrawal must be made not later than the eighth day before the

 4-2     date on which the hearing is scheduled.

 4-3           (f) [(e)]  A court may not require a jury fee.

 4-4           (g) [(f)]  In a hearing before a jury, the jury shall

 4-5     determine if the proposed patient is mentally ill and meets the

 4-6     criteria for court-ordered mental health services.  The jury may

 4-7     not make a finding about the type of services to be provided to the

 4-8     proposed patient.

 4-9           SECTION 4.  Section 574.034, Health and Safety Code, is

4-10     amended by amending Subsection (f) and adding Subsection (g) to

4-11     read as follows:

4-12           (f)  Except as provided by Subsection (g), a [A] judge may

4-13     not issue an order for temporary mental health services for a

4-14     proposed patient who is charged with a criminal offense that

4-15     involves an act, attempt, or threat of serious bodily injury to

4-16     another person.

4-17           (g)  Subsection (f) does not apply to a juvenile court

4-18     proceeding under Section 55.02, Family Code.

4-19           SECTION 5.  Section 574.035, Health and Safety Code, is

4-20     amended by amending Subsection (g) and adding Subsection (h) to

4-21     read as follows:

4-22           (g)  Except as provided by Subsection (h), a [A] judge may

4-23     not issue an order for extended mental health services for a

4-24     proposed patient who is charged with a criminal offense that

4-25     involves an act, attempt, or threat of serious bodily injury to

4-26     another person.

4-27           (h)  Subsection (g) does not apply to a juvenile court

 5-1     proceeding under Section 55.02, Family Code.

 5-2           SECTION 6.  This Act takes effect September 1, 1997, and

 5-3     applies only to a juvenile court proceeding commenced on or after

 5-4     that date.  A proceeding commenced before that date is governed by

 5-5     the law in effect when the proceeding was commenced, and the former

 5-6     law is continued in effect for that purpose.

 5-7           SECTION 7.  The importance of this legislation and the

 5-8     crowded condition of the calendars in both houses create an

 5-9     emergency and an imperative public necessity that the

5-10     constitutional rule requiring bills to be read on three several

5-11     days in each house be suspended, and this rule is hereby suspended.