By: Leach H.B. No. 3504

A BILL TO BE ENTITLED

AN ACT

relating to an application for emergency detention, procedures regarding court-ordered mental health services, and certain rights of patients admitted to private mental hospitals and certain other mental health facilities.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 571.003, Health and Safety Code, is amended by adding Subdivision (20-a) to read as follows:

(20-a) "Psychiatrist" means a physician who is:

(A) certified by the American Board of Psychiatry and Neurology or the American Osteopathic Board of Neurology and Psychiatry;

(B) eligible for board certification as a psychiatrist; or

(C) enrolled in a graduate medical education training program and is under the supervision of a psychiatrist who is board certified or eligible for certification.

SECTION 2. Section 573.001(a), Health and Safety Code, is amended to read as follows:

(a) A peace officer, without a warrant, may take a person into custody, regardless of the age or location of the person, if the officer:

(1) has reason to believe and does believe that:

(A) the person is a person with mental illness; and

(B) because of that mental illness there is a substantial risk of serious harm to the person or to others unless the person is immediately restrained; and

(2) believes that there is not sufficient time to obtain a warrant before taking the person into custody.

SECTION 3. Section 573.012, Health and Safety Code, is amended by amending Subsection (a), (e), and (h) and adding Subsection (h-2) to read as follows:

(a) Except as provided by Subsection (h), an applicant for emergency detention must present the application personally to a judge or magistrate. The judge or magistrate shall examine the application and may interview the applicant. Except as provided by Subsections [Subsection] (g) and (h), the judge of a court with probate jurisdiction by administrative order may provide that the application must be:

(1) presented personally to the court; or

(2) retained by court staff and presented to another judge or magistrate as soon as is practicable if the judge of the court is not available at the time the application is presented.

(e) A person apprehended under this section who is not physically located in a mental health facility at the time the warrant is issued under Subsection (h-1) shall be transported for a preliminary examination in accordance with Section 573.021 to:

(1) the nearest appropriate inpatient mental health facility; or

(2) a mental health facility deemed suitable by the local mental health authority, if an appropriate inpatient mental health facility is not available.

(h) A judge or magistrate shall [may] permit an applicant who is a physician to present an application by:

(1) e-mail with the application attached as a secure document in a portable document format (PDF); or

(2) another secure electronic means, including:

(A) satellite transmission;

(B) closed-circuit television transmission; or

(C) any other method of two-way electronic communication that:

(i) is secure;

(ii) is available to the judge or magistrate; and

(iii) provides for a simultaneous, compressed full-motion video and interactive communication of image and sound between the judge or magistrate and the applicant.

(h-2) A facility may detain a person who is physically located in the facility to perform a preliminary examination in accordance with Section 573.021 if:

(1) a judge or magistrate transmits a warrant to the facility under Subsection (h-1) for the detention of the person; and

(2) the person is not under an order under this chapter or Chapter 574.

SECTION 4. Section 574.001, Health and Safety Code, is amended by amending Subsection (b) and adding Subsections (g) and (h) to read as follows:

(b) Except as provided by Subsection (f), the application must be filed with the county clerk in the county in which the proposed patient:

(1) resides;

(2) is located at the time the application is filed [is found]; [or]

(3) was apprehended under Chapter 573; or

(4) is receiving mental health services by court order or under Subchapter A, Chapter 573.

(g) A judge or magistrate shall review an application filed at any time that the judge or magistrate is on duty, regardless of whether the application is filed after 5:00 p.m. on a weekday, on a Saturday or Sunday, or on a state or national holiday.

(h) A court shall allow an application to be filed under this section in the same manner as any other document filed with the court, including through the use of an electronic filing system established under Section 72.031, Government Code, if applicable.

SECTION 5. Subchapter A, Chapter 574, Health and Safety Code, is amended by adding Section 574.0121 to read as follows:

Sec. 574.0121. CONFLICTING RECOMMENDATIONS REGARDING COMMITMENT. If the local mental health authority in the county in which an application is filed does not recommend that a proposed patient be committed, the authority, as part of the recommendation required under Section 574.012, must:

(1) include the information required by Sections 574.011(a) and (b); and

(2) identify the criteria for commitment that the proposed patient does not satisfy and include the facts on which that determination is based.

SECTION 6. Section 574.021, Health and Safety Code, is amended by amending Subsection (d) and adding Subsections (d-1) and (f) to read as follows:

(d) The motion must be accompanied by a certificate of medical examination for mental illness prepared by a physician who has examined the proposed patient not earlier than the third day before the day the motion is filed. The motion is not required to include a recommendation from a local mental health authority.

(d-1) A court may not consider a recommendation from a local mental health authority if the authority's recommendation fails to comply with the requirements of Section 574.012 and, to the extent applicable, Section 574.0121.

(f) A court shall allow the motion to be filed under this section in the same manner as any other document filed with the court, including through the use of an electronic filing system established under Section 72.031, Government Code, if applicable.

SECTION 7. Section 574.022, Health and Safety Code, is amended by amending Subsections (a) and (d) and adding Subsection (f) to read as follows:

(a) The judge or designated magistrate shall [may] issue a protective custody order if the judge or magistrate determines:

(1) that a physician has stated the physician's opinion and the detailed reasons for the physician's opinion that the proposed patient is a person with mental illness; and

(2) the proposed patient presents a substantial risk of serious harm to the proposed patient or others if not immediately restrained pending the hearing.

(d) The judge or magistrate shall set a hearing date and [may] take additional evidence if a fair determination of the matter cannot be made from consideration of the application and certificate only.

(f) The judge or magistrate may not deny a motion for a protective custody order solely on the basis that the proposed patient was not emergency detained under Chapter 573 at the time that an application for court-ordered mental health services under this chapter was filed.

SECTION 8. Section 574.023, Health and Safety Code, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows:

(a) A protective custody order shall direct a person authorized to transport patients under Section 574.045 to take the proposed patient into protective custody and transport the person immediately to a mental health facility deemed suitable by:

(1) the local mental health authority for the area; or

(2) a physician who completed a certificate of medical examination under Section 574.009.

(a-1) On request of the local mental health authority, the judge may order that the proposed patient be detained in an inpatient mental health facility operated by the department.

SECTION 9. Section 574.025(d), Health and Safety Code, is amended to read as follows:

(d) The applicant, the proposed patient, and the proposed patient's attorney shall have an opportunity at the hearing to appear and present evidence to support or challenge the allegation that the proposed patient presents a substantial risk of serious harm to the proposed patient [himself] or others.

SECTION 10. Section 574.028, Health and Safety Code, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows:

(a) If [The magistrate or associate judge shall order the release of a person under a protective custody order if] the magistrate or associate judge determines after the hearing under Section 574.025 that no probable cause exists to believe that the proposed patient presents a substantial risk of serious harm to the proposed patient [himself] or others, the magistrate or associate judge shall order the release of a person under a protective custody order. The order must include written findings stating the specific facts forming the basis for the determination by the magistrate or associate judge that no probable cause exists.

(a-1) If the magistrate or associate judge after the hearing under Section 574.025 denies the motion for protective custody on any fact or conclusion of law other than a finding that no probable cause exists to believe that the proposed patient presents a substantial risk of serious harm to the proposed patient or others, the order must include the findings of fact or conclusions of law on which the denial is based.

SECTION 11. Section 574.031, Health and Safety Code, is amended by adding Subsection (d-3) to read as follows:

(d-3) Notwithstanding Subchapter I and without regard to the proposed patient's physical presence at the hearing, the court shall allow the competent medical or psychiatric testimony under Subsection (d-1) to be provided by closed-circuit video teleconferencing if:

(1) closed-circuit video teleconferencing is available to the court for that purpose;

(2) the court has good cause to not conduct in-person testimony, including that conducting the testimony through closed-circuit video teleconferencing would minimize the disruption of care to the testifying person's other patients; and

(3) the closed-circuit video teleconferencing system provides for a simultaneous, compressed full-motion video and interactive communication of image and sound between all persons involved in the proceedings.

SECTION 12. Section 574.033(a), Health and Safety Code, is amended to read as follows:

(a) The court shall enter an order denying an application for court-ordered temporary or extended mental health services if after a hearing the court or jury fails to find, from clear and convincing evidence, that the proposed patient is a person with mental illness and meets the applicable criteria for court-ordered mental health services. The order must include written findings of fact on which the court's order is based.

SECTION 13. Section 577.010, Health and Safety Code, is amended by adding Subsections (b-1) and (b-2) to read as follows:

(b-1) The rules must specify the rights of patients admitted for voluntary or involuntary commitment, including the rights provided by Chapters 572, 573, 574, and 576.

(b-2) The rules must require each mental health facility licensed under this chapter to:

(1) notify any patient admitted for voluntary or involuntary commitment of the patient's rights under this subtitle and under the rules; and

(2) display a poster or other written document of the rights described by Subdivision (1).

SECTION 14. The changes in law made by this Act to Chapter 573, Health and Safety Code, apply to an emergency detention that begins on or after the effective date of this Act. An emergency detention that begins before the effective date of this Act is governed by the law as it existed immediately before that date, and that law is continued in effect for that purpose.

SECTION 15. The change in law made by this Act to Section 574.001, Health and Safety Code, applies only to an application for court-ordered mental health services submitted on or after the effective date of this Act.

SECTION 16. The changes in law made by this Act to Chapter 574, Health and Safety Code, apply only to a proceeding for court-ordered mental health services that occurs on or after the effective date of this Act, regardless of when an offense with which the defendant is charged was committed.

SECTION 17. This Act takes effect September 1, 2023.