By Smith H.B. No. 2651
76R5365 JJT-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the detention, involuntary commitment, and treatment of
1-3 certain pregnant women who abuse alcohol or a controlled substance.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 461.0124(d), Health and Safety Code, is
1-6 amended to read as follows:
1-7 (d) The plan must provide a priority for obtaining treatment
1-8 services for individuals in need of treatment who:
1-9 (1) are parents of a child in foster care; or
1-10 (2) are pregnant and present a substantial risk of
1-11 serious harm to the health of the child when born because of the
1-12 individual's abuse of alcohol or a controlled substance.
1-13 SECTION 2. Section 462.042(b), Health and Safety Code, is
1-14 amended to read as follows:
1-15 (b) The application must state:
1-16 (1) that the applicant has reason to believe and does
1-17 believe that the person who is the subject of the application is a
1-18 chemically dependent person;
1-19 (2) that the applicant has reason to believe and does
1-20 believe that the person:
1-21 (A) evidences a substantial risk of serious harm
1-22 to himself or others; or
1-23 (B) is pregnant and presents a substantial risk
1-24 of serious harm to the health of the child when born because of the
2-1 person's abuse of alcohol or a controlled substance;
2-2 (3) a specific description of the risk of harm;
2-3 (4) that the applicant has reason to believe and does
2-4 believe that the risk of harm is imminent unless the person is
2-5 immediately restrained;
2-6 (5) that the applicant's beliefs are derived from
2-7 specific recent behavior, overt acts, attempts, or threats;
2-8 (6) a detailed description of the specific behavior,
2-9 acts, attempts, or threats; and
2-10 (7) the relationship, if any, of the applicant to the
2-11 person.
2-12 SECTION 3. Section 462.043(b), Health and Safety Code, is
2-13 amended to read as follows:
2-14 (b) The judge or magistrate shall deny the application
2-15 unless the judge or magistrate finds that there is reasonable cause
2-16 to believe that:
2-17 (1) the person who is the subject of the application
2-18 is a chemically dependent person;
2-19 (2) the person:
2-20 (A) evidences a substantial risk of serious harm
2-21 to himself or others; or
2-22 (B) is pregnant and presents a substantial risk
2-23 of serious harm to the health of the child when born because of the
2-24 person's abuse of alcohol or a controlled substance;
2-25 (3) the risk of harm is imminent unless the person is
2-26 immediately restrained; and
2-27 (4) the necessary restraint cannot be accomplished
3-1 without emergency detention.
3-2 SECTION 4. Section 462.062(e), Health and Safety Code, is
3-3 amended to read as follows:
3-4 (e) The application must contain the following information
3-5 according to the applicant's information and belief:
3-6 (1) the proposed patient's name and address, including
3-7 the county in which the proposed patient resides, if known;
3-8 (2) a statement that the proposed patient is a
3-9 chemically dependent person who:
3-10 (A) is likely to cause serious harm to himself
3-11 or others;
3-12 (B) is pregnant and presents a substantial risk
3-13 of serious harm to the health of the child when born because of the
3-14 person's abuse of alcohol or a controlled substance; or
3-15 (C) [(B)] will continue to suffer abnormal
3-16 mental, emotional, or physical distress, will continue to
3-17 deteriorate in ability to function independently if not treated,
3-18 and is unable to make a rational and informed choice as to whether
3-19 to submit to treatment; and
3-20 (3) a statement that the proposed patient is not
3-21 charged with a criminal offense that involves an act, attempt, or
3-22 threat of serious bodily injury to another person.
3-23 SECTION 5. Section 462.064(c), Health and Safety Code, is
3-24 amended to read as follows:
3-25 (c) A certificate must be dated and signed by the examining
3-26 physician. The certificate must include:
3-27 (1) the name and address of the examining physician;
4-1 (2) the name and address of the proposed patient;
4-2 (3) the date and place of the examination;
4-3 (4) the period, if any, during which the proposed
4-4 patient has been under the care of the examining physician;
4-5 (5) an accurate description of the treatment, if any,
4-6 given by or administered under the direction of the examining
4-7 physician; and
4-8 (6) the examining physician's opinions whether the
4-9 proposed patient is a chemically dependent person and:
4-10 (A) is likely to cause serious harm to himself;
4-11 (B) is likely to cause serious harm to others;
4-12 (C) is pregnant and presents a substantial risk
4-13 of serious harm to the health of the child when born because of the
4-14 person's abuse of alcohol or a controlled substance; or
4-15 (D) [(C)] will continue to suffer abnormal
4-16 mental, emotional, or physical distress and to deteriorate in
4-17 ability to function independently if not treated and is unable to
4-18 make a rational and informed choice as to whether or not to submit
4-19 to treatment.
4-20 SECTION 6. Sections 462.065(e) and (f), Health and Safety
4-21 Code, are amended to read as follows:
4-22 (e) The judge or designated magistrate may issue a
4-23 protective custody order if the judge or magistrate determines
4-24 that:
4-25 (1) [that] a physician has stated his opinion and the
4-26 detailed basis for his opinion that the proposed patient is a
4-27 chemically dependent person; and
5-1 (2) the proposed patient:
5-2 (A) presents a substantial risk of serious harm
5-3 to himself or others if not immediately restrained pending the
5-4 hearing; or
5-5 (B) is pregnant and presents a substantial risk
5-6 of serious harm to the health of the child when born because of the
5-7 person's abuse of alcohol or a controlled substance if not
5-8 immediately restrained pending the hearing.
5-9 (f) The determination that the proposed patient presents a
5-10 substantial risk of serious harm to himself or others or that the
5-11 proposed patient, if pregnant, presents a substantial risk of
5-12 serious harm to the health of the child when born may be
5-13 demonstrated by the proposed patient's behavior or by evidence that
5-14 the proposed patient cannot remain at liberty. The judge or
5-15 magistrate may make a determination that the proposed patient meets
5-16 the criteria prescribed by this subsection from the application and
5-17 certificate alone if the judge or magistrate determines that the
5-18 conclusions of the applicant and certifying physician are
5-19 adequately supported by the information provided. The judge or
5-20 magistrate may take additional evidence if a fair determination of
5-21 the matter cannot be made from consideration of the application and
5-22 certificate only.
5-23 SECTION 7. Section 462.066, Health and Safety Code, is
5-24 amended to read as follows:
5-25 Sec. 462.066. PROBABLE CAUSE HEARING AND DETENTION. (a)
5-26 The court shall set a hearing to determine if there is probable
5-27 cause to believe that a proposed patient under a protective custody
6-1 order, if not restrained until the hearing on the application:
6-2 (1) presents a substantial risk of serious harm to
6-3 himself or others; or
6-4 (2) is pregnant and presents a substantial risk of
6-5 serious harm to the health of the child when born because of the
6-6 person's abuse of alcohol or a controlled substance.
6-7 (b) [if not restrained until the hearing on the
6-8 application.] The hearing must be held not later than 72 hours
6-9 after the protective custody order is signed unless the proposed
6-10 patient waives the right to a hearing. If the period ends on a
6-11 Saturday, Sunday, or legal holiday, the hearing must be held on the
6-12 next day that is not a Saturday, Sunday, or legal holiday. The
6-13 judge or magistrate may postpone the hearing each day for an
6-14 additional 24 hours if the judge or magistrate declares that an
6-15 extreme emergency exists because of extremely hazardous weather
6-16 conditions or on the occurrence of a disaster that threatens the
6-17 safety of the proposed patient or another essential party to the
6-18 hearing.
6-19 (c) [(b)] The hearing shall be held before a magistrate or,
6-20 at the discretion of the presiding judge, before a master appointed
6-21 by the presiding judge. The master is entitled to reasonable
6-22 compensation.
6-23 (d) [(c)] The proposed patient and the proposed patient's
6-24 attorney are entitled to an opportunity at the hearing to appear
6-25 and present evidence on any allegation or statement in the
6-26 certificate of medical examination for chemical dependency. The
6-27 magistrate or master may consider any evidence. The state may
7-1 prove its case on the certificate.
7-2 (e) [(d)] The magistrate or master shall order the release
7-3 of a person under a protective custody order if the magistrate or
7-4 master determines after the hearing that no probable cause exists
7-5 to believe that the proposed patient:
7-6 (1) presents a substantial risk of serious harm to
7-7 himself or others; or
7-8 (2) is pregnant and presents a substantial risk of
7-9 serious harm to the health of the child when born because of the
7-10 person's abuse of alcohol or a controlled substance.
7-11 (f) [(e)] The magistrate shall order that a proposed patient
7-12 be detained, until the hearing on the court-ordered treatment or
7-13 until the administrator of the facility determines that the
7-14 proposed patient no longer meets the criteria for detention under
7-15 this section, if the magistrate or master determines that probable
7-16 cause does exist to believe that the proposed patient, to the
7-17 extent that the proposed patient cannot be at liberty pending the
7-18 hearing on court-ordered treatment:
7-19 (1) presents a substantial risk of serious harm to
7-20 himself or others; or
7-21 (2) is pregnant and presents a substantial risk of
7-22 serious harm to the health of the child when born because of the
7-23 person's abuse of alcohol or a controlled substance [to the extent
7-24 that the proposed patient cannot be at liberty pending the hearing
7-25 on court-ordered treatment].
7-26 (g) [(f)] The magistrate or master shall arrange for a
7-27 proposed patient detained under Subsection (f) [(e)] to be returned
8-1 to the treatment facility or other suitable place, along with a
8-2 copy of the certificate of medical examination for chemical
8-3 dependency, any affidavits or other material submitted as evidence
8-4 in the hearing, and the notification prepared as prescribed by
8-5 Subsection (h) [(g)]. A copy of the notification of probable cause
8-6 hearing and the supporting evidence shall be filed with the court
8-7 that entered the original order of protective custody.
8-8 (h) [(g)] The notification of probable cause hearing shall
8-9 read as follows:
8-10 (Style of Case)
8-11 NOTIFICATION OF PROBABLE CAUSE HEARING
8-12 On this the _________________ day of __________________,
8-13 19__, the undersigned hearing officer heard evidence concerning the
8-14 need for protective custody of ______(hereinafter referred to as
8-15 proposed patient). The proposed patient was given the opportunity
8-16 to challenge the allegations that the proposed patient:
8-17 (1) [(s)he] presents a substantial risk of serious
8-18 harm to self or others; or
8-19 (2) is pregnant and presents a substantial risk of
8-20 serious harm to the health of the child when born because of the
8-21 proposed patient's abuse of alcohol or a controlled substance.
8-22 The proposed patient and the proposed patient's attorney
8-23 ________________ have been given written notice that the proposed
8-24 (attorney)
8-25 patient was placed under an order of protective custody and the
8-26 reasons for such order on _________________________________.
8-27 (date of notice)
8-28 I have examined the certificate of medical examination for
9-1 chemical dependency and ________________________________________.
9-2 (other evidence considered)
9-3 Based on this evidence, I find that there is probable cause to
9-4 believe that the proposed patient presents a substantial risk of
9-5 serious harm to self (yes ____ or no ____) or others (yes ____ or
9-6 no____) or that the proposed patient is pregnant (yes ____ or no
9-7 ____) and presents a substantial risk of serious harm to the health
9-8 of the child when born because of the proposed patient's abuse of
9-9 alcohol or a controlled substance (yes ____ or no ____) such that
9-10 the proposed patient [(s)he] cannot be at liberty pending final
9-11 hearing because
9-12 ___________________________________________________________________
9-13 ___________________________________________________________________
9-14 (reasons for finding; type of risk found)
9-15 SECTION 8. Section 462.075(b), Health and Safety Code, is
9-16 amended to read as follows:
9-17 (b) An applicant may file an application to renew the
9-18 original order for court-ordered treatment if the applicant [who]
9-19 has reasonable cause to believe that a patient remains chemically
9-20 dependent and [that], because of the chemical dependency, the
9-21 patient is likely to cause serious physical harm to himself or
9-22 others or that a patient remains chemically dependent, is pregnant,
9-23 and presents a substantial risk of serious harm to the health of
9-24 the child when born because of the patient's abuse of alcohol or a
9-25 controlled substance [may file an application to renew the original
9-26 order for court-ordered treatment]. The application must comply
9-27 with the requirements of Section 462.062. The applicant must file
9-28 the application not later than the 14th day before the date on
10-1 which the previous order expires.
10-2 SECTION 9. This Act takes effect September 1, 1999.
10-3 SECTION 10. The importance of this legislation and the
10-4 crowded condition of the calendars in both houses create an
10-5 emergency and an imperative public necessity that the
10-6 constitutional rule requiring bills to be read on three several
10-7 days in each house be suspended, and this rule is hereby suspended.