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Last updated November 2003
CHAPTER 572. VOLUNTARY INPATIENT
MENTAL HEALTH SERVICES
§ 572.001. Request for Admission
(a)
A person 16 years of age or older or a person younger than 16 years of age who
is or has been married may request admission to an inpatient mental health
facility by filing a request with the administrator of the facility to which
admission is requested. The parent, managing conservator, or guardian of a
person younger than 16 years of age who is not and has not been married may
request the admission of the person to an inpatient mental health facility by
filing a request with the administrator of the facility to which admission is
requested.
(b)
An admission request must be in writing and signed by the person requesting the
admission.
(c)
A person or agency appointed as the guardian or a managing conservator of a
minor younger than 16 years of age and acting as an employee or agent of the
state or a political subdivision of the state may request admission of the
minor only with the minor's consent.
(d)
The administrator of an inpatient mental health facility may admit a minor who
is 16 years of age or older or a person younger than 16 years of age who is or
has been married to an inpatient mental health facility as a voluntary patient
without the consent of the parent, managing conservator, or guardian.
(e)
A request for admission as a voluntary patient must state that the person for
whom admission is requested agrees to voluntarily remain in the facility until
the person's discharge and that the person consents to the diagnosis, observation,
care, and treatment provided until the earlier of:
(1) the person's discharge; or
(2) the period prescribed by Section 572.004.
The
facility administrator or the administrator's authorized, qualified designee
may admit a person for whom a proper request for voluntary inpatient services
is filed if the administrator or the designee determines:
(1) from a preliminary examination that the person has
symptoms of mental illness and will benefit from the inpatient services;
(2) that the person has been informed of the person's rights
as a voluntary patient; and
(3) that the admission was voluntarily agreed to:
(A) by the person, if the person is:
(i) 16
years of age or older; or
(ii) younger than 16 years of age
and is or has been married; or
(B) by the person's parent, managing conservator, or
guardian, if the person is younger than 16 years of age and is not and has not
been married.
§ 572.0022. Information on
Medications
(a)
A mental health facility shall provide to a patient in the patient's primary
language, if possible, and in accordance with board rules information relating
to prescription medication ordered by the patient's treating physician.
(b)
The facility shall also provide the information to the patient's family on
request, but only to the extent not otherwise prohibited by state or federal
confidentiality laws.
§ 572.0025. Intake, Assessment, and
Admission
(a)
The board shall adopt rules governing the voluntary admission of a patient to
an inpatient mental health facility, including rules governing the intake and
assessment procedures of the admission process.
(b)
The rules governing the intake process shall establish minimum standards for:
(1) reviewing a prospective patient's finances and insurance
benefits;
(2) explaining to a prospective patient the patient's
rights; and
(3) explaining to a prospective patient the facility's
services and treatment process.
(c)
The assessment provided for by the rules may be conducted only by a
professional who meets the qualifications prescribed by board rules.
(d)
The rules governing the assessment process shall prescribe:
(1) the types of professionals who may conduct an
assessment;
(2) the minimum credentials each type of professional must
have to conduct an assessment; and
(3) the type of assessment that professional may conduct.
(e)
In accordance with board rule, a facility shall provide annually a minimum of
eight hours of inservice training regarding intake
and assessment for persons who will be conducting an intake or assessment for
the facility. A person may not conduct intake or assessments without having
completed the initial and applicable annual inservice
training.
(f)
A prospective voluntary patient may not be formally accepted for treatment in a
facility unless:
(1) the facility has a physician's order admitting the
prospective patient, which order may be issued orally, electronically, or in
writing, signed by the physician, provided that, in the case of an oral order
or an electronically transmitted unsigned order, a signed original is presented
to the mental health facility within 24 hours of the initial order; the order
must be from:
(A) an admitting physician who has conducted an in-person
physical and psychiatric examination within 72 hours of the admission; or
(B) an admitting physician who has consulted with a
physician who has conducted an in-person examination within 72 hours of the
admission; and
(2) the facility administrator or a person designated by the
administrator has agreed to accept the prospective patient and has signed a
statement to that effect.
(g)
An assessment conducted as required by rules adopted under this section does
not satisfy a statutory or regulatory requirement for a personal evaluation of
a patient or a prospective patient by a physician before admission.
(h)
In this section:
(1) "Admission" means the formal acceptance of a
prospective patient to a facility.
(2) "Assessment" means the administrative process
a facility uses to gather information from a prospective patient, including a
medical history and the problem for which the patient is seeking treatment, to
determine whether a prospective patient should be examined by a physician to
determine if admission is clinically justified.
(3) "Intake" means the administrative process for
gathering information about a prospective patient and giving a
prospective patient information about the facility and the facility's
treatment and services.
(a)
A person's voluntary admission to an inpatient mental health facility under
this chapter does not affect the person's civil rights or legal capacity or
affect the person's right to obtain a writ of habeas corpus.
(b)
In addition to the rights provided by this subtitle, a person voluntarily
admitted to an inpatient mental health facility under this chapter has the
right:
(1) to be reviewed periodically to determine the person's
need for continued inpatient treatment; and
(2) to have an application for court-ordered mental health
services filed only as provided by Section 572.005.
(c)
A person admitted to an inpatient mental health facility under this chapter
shall be informed of the rights provided under this section and Section
572.004:
(1) orally in simple, nontechnical
terms, within 24 hours after the time the person is admitted, and in writing in
the person's primary language, if possible; or
(2) through the use of a means reasonably calculated to
communicate with a hearing impaired or visually impaired person, if applicable.
(d)
The patient's parent, managing conservator, or guardian shall also be informed
of the patient's rights as required by this section if the patient is a minor.
(a)
A voluntary patient is entitled to leave an inpatient mental health facility in
accordance with this section after a written request for discharge is filed
with the facility administrator or the administrator's designee. The request
must be signed, timed, and dated by the patient or a person legally responsible
for the patient and must be made a part of the patient's clinical record. If a
patient informs an employee of or person associated with the facility of the
patient's desire to leave the facility, the employee or person shall, as soon
as possible, assist the patient in creating the written request and present it to
the patient for the patient's signature.
(b)
The facility shall, within four hours after a request for discharge is filed,
notify the physician responsible for the patient's treatment. If that physician
is not available during that period, the facility shall notify any available
physician of the request.
(c)
The notified physician shall discharge the patient before the end of the
four-hour period unless the physician has reasonable cause to believe that the
patient might meet the criteria for court-ordered mental health services or
emergency detention.
(d)
A physician who has reasonable cause to believe that a patient might meet the
criteria for court-ordered mental health services or emergency detention shall
examine the patient as soon as possible within 24 hours after the time the
request for discharge is filed. The physician shall discharge the patient on
completion of the examination unless the physician determines that the person
meets the criteria for court-ordered mental health services or emergency
detention. If the physician makes a determination that the patient meets the
criteria for court-ordered mental health services or emergency detention, the
physician shall, not later than 4 p.m. on the next succeeding business day
after the date on which the examination occurs, either discharge the patient or
file an application for court-ordered mental health services or emergency
detention and obtain a written order for further detention. The physician shall
notify the patient if the physician intends to detain the patient under this
subsection or intends to file an application for court-ordered mental health
services or emergency detention. A decision to detain a patient under this
subsection and the reasons for the decision shall be made a part of the patient's
clinical record.
(e)
If extremely hazardous weather conditions exist or a disaster occurs, the
physician may request the judge of a court that has jurisdiction over
proceedings brought under Chapter 574 to extend the period during which the
patient may be detained. The judge or a magistrate appointed by the judge may
by written order made each day extend the period during which the patient may
be detained until
(f)
The patient is not entitled to leave the facility if before the end of the
period prescribed by this section:
(1) a written withdrawal of the request for discharge is
filed; or
(2) an application for court-ordered mental health services
or emergency detention is filed and the patient is detained in accordance with
this subtitle.
(g)
A plan for continuing care shall be prepared in accordance with Section 574.081
for each patient discharged. If sufficient time to prepare a continuing care
plan before discharge is not available, the plan may be prepared and mailed to
the appropriate person within 24 hours after the patient is discharged.
(h)
The patient or other person who files a request for discharge of a patient
shall be notified that the person filing the request assumes all responsibility
for the patient on discharge.
§ 572.005. Application for
Court-Ordered Treatment
(a)
An application for court-ordered mental health services may not be filed
against a patient receiving voluntary inpatient services unless:
(1) a request for release of the patient has been filed with
the facility administrator; or
(2) in the opinion of the physician responsible for the
patient's treatment, the patient meets the criteria for court-ordered mental
health services and:
(A) is absent from the facility
without authorization;
(B) is unable to consent to
appropriate and necessary psychiatric treatment; or
(C) refuses to consent to necessary and appropriate treatment
recommended by the physician responsible for the patient's treatment and that
physician completes a certificate of medical examination for mental illness
that, in addition to the information required by Section 574.011, includes the
opinion of the physician that:
(i) there
is no reasonable alternative to the treatment recommended by the physician; and
(ii) the patient will not benefit
from continued inpatient care without the recommended treatment.
(b)
The physician responsible for the patient's treatment shall notify the patient
if the physician intends to file an application for court-ordered mental health
services.
CHAPTER 573. EMERGENCY DETENTION
SUBCHAPTER A. APPREHENSION BY PEACE OFFICER
§ 573.001. Apprehension by Peace
Officer Without Warrant
(a)
A peace officer, without a warrant, may take a person into custody if the
officer:
(1) has reason to believe and does believe that:
(A) the person is mentally ill; 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.
(b)
A substantial risk of serious harm to the person or others under Subsection (a)(1)(B)
may be demonstrated by:
(1) the person's behavior; or
(2) evidence of severe emotional distress and deterioration
in the person's mental condition to the extent that the person cannot remain at
liberty.
(c)
The peace officer may form the belief that the person meets the criteria for
apprehension:
(1) from a representation of a credible person; or
(2) on the basis of the conduct of the apprehended person or
the circumstances under which the apprehended person is found.
(d)
A peace officer who takes a person into custody under Subsection (a) shall
immediately transport the apprehended person 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.
(e)
A jail or similar detention facility may not be deemed suitable except in an
extreme emergency.
(f)
A person detained in a jail or a nonmedical facility shall
be kept separate from any person who is charged with or convicted of a crime.
§ 573.002. Peace Officer's
Application for Detention
(a)
A peace officer shall immediately file an application for detention after
transporting a person to a facility under Section 573.001.
(b)
The application for detention must contain:
(1) a statement that the officer has reason to believe and
does believe that the person evidences mental illness;
(2) a statement that the officer has reason to believe and
does believe that the person evidences a substantial risk of serious harm to
himself or others;
(3) a specific description of the risk of harm;
(4) a statement that the officer has reason to believe and
does believe that the risk of harm is imminent unless the person is immediately
restrained;
(5) a statement that the officer's beliefs are derived from
specific recent behavior, overt acts, attempts, or threats that were observed
by or reliably reported to the officer;
(6) a detailed description of the specific behavior, acts,
attempts, or threats; and
(7) the name and relationship to the apprehended person of
any person who reported or observed the behavior, acts, attempts, or threats.
SUBCHAPTER B. JUDGE'S OR MAGISTRATE'S ORDER FOR EMERGENCY
APPREHENSION AND DETENTION
§ 573.011. Application for Emergency
Detention
(a)
An adult may file a written application for the emergency detention of another
person.
(b)
The application must state:
(1) that the applicant has reason to believe and does
believe that the person evidences mental illness;
(2) that the applicant has reason to believe and does
believe that the person evidences a substantial risk of serious harm to himself
or others;
(3) a specific description of the risk of harm;
(4) that the applicant has reason to believe and does
believe that the risk of harm is imminent unless the person is immediately
restrained;
(5) that the applicant's beliefs are derived from specific
recent behavior, overt acts, attempts, or threats;
(6) a detailed description of the specific behavior, acts,
attempts, or threats; and
(7) a detailed description of the applicant's relationship
to the person whose detention is sought.
(c)
The application may be accompanied by any relevant information.
§ 573.012. Issuance of Warrant
(a)
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 Subsection (g), 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.
(b)
The magistrate shall deny the application unless the magistrate finds that
there is reasonable cause to believe that:
(1) the person evidences mental illness;
(2) the person evidences a substantial risk of serious harm
to himself or others;
(3) the risk of harm is imminent unless the person is
immediately restrained; and
(4) the necessary restraint cannot be accomplished without
emergency detention.
(c)
A substantial risk of serious harm to the person or others under Subsection
(b)(2) may be demonstrated by:
(1) the person's behavior; or
(2) evidence of severe emotional distress and deterioration
in the person's mental condition to the extent that the person cannot remain at
liberty.
(d)
The magistrate shall issue to an on-duty peace officer a warrant for the
person's immediate apprehension if the magistrate finds that each criterion
under Subsection (b) is satisfied.
(e)
A person apprehended under this section 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.
(f)
The warrant serves as an application for detention in the facility. The warrant
and a copy of the application for the warrant shall be immediately transmitted
to the facility.
(g)
If there is more than one court with probate jurisdiction in a county, an
administrative order regarding presentation of an application must be jointly
issued by all of the judges of those courts.
SUBCHAPTER C. EMERGENCY DETENTION, RELEASE, AND RIGHTS
§ 573.021. Preliminary Examination
(a)
A facility shall temporarily accept a person for whom an application for
detention is filed.
(b)
A person accepted for a preliminary examination may be detained in custody for
not longer than 24 hours after the time the person is presented to the facility
unless a written order for further detention is obtained. The 24-hour period
allowed by this section includes any time the patient spends waiting in the
facility for medical care before the person receives the preliminary
examination. The period does not include any time during which the person is
actually receiving necessary medical care in the facility's emergency room or
emergency care in another area of the facility. If the 24-hour period ends on a
Saturday, Sunday, legal holiday, or before
(c)
A physician shall examine the person as soon as possible within 24 hours after
the time the person is apprehended.
(d)
A facility must comply with this section only to the extent that the
commissioner determines that a facility has sufficient resources to perform the
necessary services under this section.
(e)
A person may not be detained in a private mental health facility without the
consent of the facility administrator.
§ 573.022. Emergency Admission and
Detention
(a)
A person may be admitted to a facility for emergency detention only if the
physician who conducted the preliminary examination of the person makes a
written statement that:
(1) is acceptable to the facility;
(2) states that after a preliminary examination it is the
physician's opinion that:
(A) the person is mentally ill;
(B) the person evidences a substantial
risk of serious harm to himself or others;
(C) the described risk of harm is
imminent unless the person is immediately restrained; and
(D) emergency detention is the least
restrictive means by which the necessary restraint may be accomplished; and
(3) includes:
(A) a description of the nature of
the person's mental illness;
(B) a specific description of the risk of harm the person
evidences that may be demonstrated either by the person's behavior or by
evidence of severe emotional distress and deterioration in the person's mental
condition to the extent that the person cannot remain at liberty; and
(C) the specific detailed
information from which the physician formed the opinion in Subdivision (2).
(b)
A mental health facility that has admitted a person for emergency detention
under this section may transport the person to a mental health facility deemed
suitable by the local mental health authority for the area. On the request of
the local mental health authority, the judge may order that the proposed
patient be detained in a department mental health facility.
§ 573.023. Release from Emergency
Detention
(a)
A person apprehended under Subchapter A or detained under Subchapter B shall be
released on completion of the preliminary examination unless the person is
admitted to a facility under Section 573.022.
(b)
A person admitted to a facility under Section 573.022 shall be released if the
facility administrator determines at any time during the emergency detention
period that one of the criteria prescribed by Section 573.022(2) no longer
applies.
§ 573.024. Transportation After
Release
(a)
Arrangements shall be made to transport a person who is entitled to release
under Section 573.023 to:
(1) the location of the person's apprehension;
(2) the person's residence in this state; or
(3) another suitable location.
(b)
Subsection (a) does not apply to a person who is arrested or who objects to the
transportation.
(c)
If the person was apprehended under Subchapter A, arrangements must be made to
immediately transport the person. If the person was detained under Subchapter
B, the person is entitled to reasonably prompt transportation.
(d)
The county in which the person was apprehended shall pay the costs of
transporting the person.
§ 573.025. Rights of Persons
Apprehended or Detained
(a)
A person apprehended or detained under this chapter has the right:
(1) to be advised of the location of detention, the reasons
for the detention, and the fact that the detention could result in a longer
period of involuntary commitment;
(2) to a reasonable opportunity to communicate with and
retain an attorney;
(3) to be transported to a location as provided by Section
573.024 if the person is not admitted for emergency detention, unless the
person is arrested or objects;
(4) to be released from a facility as provided by Section
573.023;
(5) to be advised that communications with a mental health
professional may be used in proceedings for further detention; and
(6) to be transported in accordance with Sections 573.026
and 574.045, if the person is detained under Section 573.022 or transported
under an order of protective custody under Section 574.023.
(b)
A person apprehended or detained under this subtitle shall be informed of the
rights provided by this section:
(1) orally in simple, nontechnical
terms, within 24 hours after the time the person is admitted to a facility, and
in writing in the person's primary language if possible; or
(2) through the use of a means reasonably calculated to
communicate with a hearing or visually impaired person, if applicable.
§ 573.026. Transportation After
Detention
A
person being transported after detention under Section 573.022 shall be
transported in accordance with Section 574.045.
CHAPTER 574.
COURT-ORDERED MENTAL HEALTH SERVICES
SUBCHAPTER A.
APPLICATION FOR COMMITMENT AND PREHEARING PROCEDURES
§ 574.001. Application for
Court-Ordered Mental Health Services
(a) A
county or district attorney or other adult may file a sworn written application
for court-ordered mental health services. Only the district or county attorney
may file an application that is not accompanied by a certificate of medical
examination.
(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 found; or
(3) is receiving mental health services by court order or
under Subchapter A, Chapter 573.
(c) If the
application is not filed in the county in which the proposed patient resides,
the court may, on request of the proposed patient or the proposed patient's
attorney and if good cause is shown, transfer the application to that county.
(d) An
application may be transferred to the county in which the person is being
detained under Subchapter B if the county to which the application is to be
transferred approves such transfer. A transfer under this subsection does not
preclude the proposed patient from filing a motion to transfer under Subsection
(c).
(e) An
order transferring a criminal defendant against whom all charges have been
dismissed to the appropriate court for a hearing on court-ordered mental health
services in accordance with Section 7, Article 46.02, Code of Criminal
Procedure, serves as an application under this section. The order must state
that all charges have been dismissed.
(f) An
application in which the proposed patient is a child in the custody of the
Texas Youth Commission may be filed in the county in which the child's
commitment to the commission was ordered.
§ 574.002. Form of Application
(a) An
application for court-ordered mental health services must be styled using the
proposed patient's initials and not the proposed patient's full name.
(b) The
application must state whether the application is for temporary or extended
mental health services. An application for extended mental health services must
state that the person has received court-ordered inpatient mental health
services under this subtitle or under Section 5, Article 46.02, Code of Criminal
Procedure, for at least 60 consecutive days during the preceding 12 months.
(c) Any
application must contain the following information according to the applicant's
information and belief:
(1) the proposed patient's name and address;
(2) the proposed patient's county of residence in this
state;
(3) a statement that the proposed patient is mentally ill
and meets the criteria in Section 574.034 or 574.035 for court-ordered mental
health services; and
(4) whether the proposed patient is charged with a criminal
offense.
§ 574.003. Appointment of Attorney
(a) The
judge shall appoint an attorney to represent a proposed patient within 24 hours
after the time an application for court-ordered mental health services is filed
if the proposed patient does not have an attorney. At that time, the judge
shall also appoint a language or sign interpreter if necessary to ensure
effective communication with the attorney in the proposed patient's primary
language.
(b) The
court shall inform the attorney in writing of the attorney's duties under
Section 574.004.
(c) The
proposed patient's attorney shall be furnished with all records and papers in
the case and is entitled to have access to all hospital and physicians'
records.
§ 574.004. Duties of Attorney
(a) An
attorney representing a proposed patient shall interview the proposed patient
within a reasonable time before the date of the hearing on the application.
(b) The
attorney shall thoroughly discuss with the proposed patient the law and facts
of the case, the proposed patient's options, and the grounds on which the
court-ordered mental health services are being sought. A court-appointed
attorney shall also inform the proposed patient that the proposed patient may
obtain personal legal counsel at the proposed patient's expense instead of
accepting the court-appointed counsel.
(c) The
attorney may advise the proposed patient of the wisdom of agreeing to or
resisting efforts to provide mental health services, but the proposed patient
shall make the decision to agree to or resist the efforts. Regardless of an
attorney's personal opinion, the attorney shall use all reasonable efforts
within the bounds of law to advocate the proposed patient's right to avoid
court-ordered mental health services if the proposed patient expresses a desire
to avoid the services. If the proposed patient desires, the attorney shall
advocate for the least restrictive treatment alternatives to court-ordered
inpatient mental health services.
(d) Before
a hearing, the attorney shall:
(1) review the application, the certificates of medical
examination for mental illness, and the proposed patient's relevant medical
records;
(2) interview supporting witnesses and other witnesses who
will testify at the hearing; and
(3) explore the least restrictive treatment alternatives to
court-ordered inpatient mental health services.
(e) The
attorney shall advise the proposed patient of the proposed patient's right to attend
a hearing or to waive the right to attend a hearing and shall inform the court
why a proposed patient is absent from a hearing.
(f) The
attorney shall discuss with the proposed patient:
(1) the procedures for appeal, release, and discharge if the
court orders participation in mental health services; and
(2) other rights the proposed patient may have during the
period of the court's order.
(g) To
withdraw from a case after interviewing a proposed patient, an attorney must
file a motion to withdraw with the court. The court shall act on the motion as
soon as possible. An attorney may not withdraw from a case unless the
withdrawal is authorized by court order.
(h) The
attorney is responsible for a person's legal representation until:
(1) the application is dismissed;
(2) an appeal from an order directing treatment is taken;
(3) the time for giving notice of appeal expires by
operation of law; or
(4) another attorney assumes responsibility for the case.
§ 574.005. Setting on Application
(a) The judge
or a magistrate designated under Section 574.021(e) shall set a date for a
hearing to be held within 14 days after the date on which the application is
filed.
(b) The
hearing may not be held during the first three days after the application is
filed if the proposed patient or the proposed patient's attorney objects.
(c) The
court may grant one or more continuances of the hearing on the motion by a
party and for good cause shown or on agreement of the parties. However, the
hearing shall be held not later than the 30th day after the date on which the
original application is filed. If extremely hazardous weather conditions exist
or a disaster occurs that threatens the safety of the proposed patient or other
essential parties to the hearing, the judge or magistrate may, by written order
made each day, postpone the hearing for 24 hours. The written order must
declare that an emergency exists because of the weather or the occurrence of a
disaster.
§ 574.006. Notice
(a) The proposed
patient and his attorney are entitled to receive a copy of the application and
written notice of the time and place of the hearing immediately after the date
for the hearing is set.
(b) A copy
of the application and the written notice shall be delivered in person or sent
by certified mail to the proposed patient's:
(1) parent, if the proposed patient is a minor;
(2) appointed guardian, if the proposed patient is the
subject of a guardianship; or
(3) each managing and possessory
conservator that has been appointed for the proposed patient.
(c) Notice
may be given to the proposed patient's next of kin if the relative is the
applicant and the parent cannot be located and a guardian or conservator has
not been appointed.
(d) Notice
of the time and place of any hearing and of the name, telephone number, and
address of any attorneys known or believed to represent the state or the
proposed patient shall be furnished to any person stating that that person has
evidence to present upon any material issue, without regard to whether such
evidence is on behalf of the state or of the proposed patient. The notice shall
not include the application, medical records, names or addresses of other
potential witnesses, or any other information whatsoever. Any clerk, judge,
magistrate, court coordinator, or other officer of the court shall provide such
information and shall be entitled to judicial immunity in any civil suit
seeking damages as a result of providing such notice. Should such evidence be
offered at trial and the adverse party claim surprise, the hearing may be
continued under the provisions of Section 574.005, and the person producing
such evidence shall be entitled to timely notice of the date and time of such
continuance.
Any
officer, employee, or agent of the department shall refer any inquiring person
to the court authorized to provide the notice if such information is in the
possession of the department. The notice shall be provided in the form that is
most understandable to the person making such inquiry.
§ 574.007. Disclosure of Information
(a) The
proposed patient's attorney may request information from the county or district
attorney in accordance with this section if the attorney cannot otherwise
obtain the information.
(b) If the
proposed patient's attorney requests the information at least 48 hours before
the time set for the hearing, the county or district attorney shall, within a
reasonable time before the hearing, provide the attorney with a statement that
includes:
(1) the provisions of this subtitle that will be relied on
at the hearing to establish that the proposed patient requires court-ordered
temporary or extended inpatient mental health services;
(2) the reasons voluntary outpatient services are not
considered appropriate for the proposed patient;
(3) the name, address, and telephone number of each witness
who may testify at the hearing;
(4) a brief description of the reasons court-ordered
temporary or extended inpatient or outpatient, as appropriate, mental health
services are required; and
(5) a list of any acts committed by the proposed patient
that the applicant will attempt to prove at the hearing.
(c) At the
hearing, the judge may admit evidence or testimony that relates to matters not
disclosed under Subsection (b) if the admission would not deprive the proposed
patient of a fair opportunity to contest the evidence or testimony.
(d) Except
as provided by this subsection, not later than 48 hours before the time set for
the hearing on the petition for commitment, the county or district attorney
shall inform the proposed patient through the proposed patient's attorney
whether the county or district attorney will request that the proposed patient
be committed to inpatient services or outpatient services. The proposed
patient, the proposed patient's attorney, and the county or district attorney
may agree to waive the requirement of this subsection. The waiver must be made
by the proposed patient:
(1) orally and in the presence of the court; or
(2) in writing and signed and sworn to under oath by the
proposed patient and the proposed patient's attorney.
§ 574.008. Court Jurisdiction and
Transfer
(a) A
proceeding under Subchapter C or E must be held in the statutory or
constitutional county court that has the jurisdiction of a probate court in
mental illness matters.
(b) If the
hearing is to be held in a county court in which the judge is not a licensed
attorney, the proposed patient or the proposed patient's attorney may request
that the proceeding be transferred to a court with a judge who is licensed to
practice law in this state. The county judge shall transfer the case after
receiving the request and the receiving court shall hear the case as if it had
been originally filed in that court.
(c) If a
patient is receiving temporary inpatient mental health services in a county
other than the county that initiated the court-ordered inpatient mental health
services and the patient requires extended inpatient mental health services,
the county in which the proceedings originated shall pay the expenses of
transporting the patient back to the county for the hearing unless the court
that entered the temporary order arranges with the appropriate court in the
county in which the patient is receiving services to hold the hearing on
court-ordered extended inpatient mental health services before the original
order expires.
(d) If an
order for outpatient services designates that such services be provided in a
county other than the county in which the order was initiated, the court shall
transfer the case to the appropriate court in the county in which the services
are being provided. That court shall thereafter have exclusive, continuing
jurisdiction of the case, including the receipt of the general treatment
program required by Section 574.037(b).
§ 574.0085. Masters
(a) The
county judge may appoint a full-time or a part-time master to preside over the
proceedings for court-ordered mental health services if the commissioners
court of a county in which the court has jurisdiction authorizes the employment
of a master.
(b) To be
eligible for appointment as a master, a person must be a resident of this state
and have been licensed to practice law in this state for at least four years or
be a retired county judge, statutory or constitutional, with at least 10 years
of service.
(c) A
master shall be paid as determined by the commissioners
court of the county in which the master serves. If a master serves in more than
one county, the master shall be paid as determined by agreement of the commissioners courts of the counties in which the master
serves. The master may be paid from county funds available for payment of
officers' salaries.
(d) A
master who serves a single court serves at the will of the judge of that court.
The services of a master who serves more than two courts may be terminated by a
majority vote of all the judges of the courts the master serves. The services
of a master who serves two courts may be terminated by either of the judges of
the courts the master serves.
(e) To
refer cases to a master, the referring court must issue an order of referral.
The order of referral may limit the power or duties of a master.
(f) Except
as limited by an order of referral, masters appointed under this section have
all the powers and duties set forth in Section 201.007, Family Code.
(g) A
bailiff may attend a hearing held by a master if directed by the referring
court.
(h) A
witness appearing before a master is subject to the penalties for perjury
provided by law. A referring court may issue attachment against and may fine or
imprison a witness whose failure to appear before a master after being summoned
or whose refusal to answer questions has been certified to the court.
(i) At the conclusion of any hearing conducted by a master
and on the preparation of a master's report, the master shall transmit to the
referring court all papers relating to the case, with the master's signed and
dated report. After the master's report has been signed, the master shall give
to the parties participating in the hearing notice of the substance of the
report. The master's report may contain the master's findings, conclusions, or
recommendations. The master's report must be in writing in a form as the referring
court may direct. The form may be a notation on the referring court's docket
sheet. After the master's report is filed, the referring court may adopt,
approve, or reject the master's report, hear further evidence, or recommit the
matter for further proceedings as the referring court considers proper and
necessary in the particular circumstances of the case.
(j) If a
jury trial is demanded or required, the master shall refer the entire matter
back to the referring court for trial.
(k) A
master appointed under this section has the judicial immunity of a county
judge.
(l) A
master appointed in accordance with this section shall comply with the Code of
Judicial Conduct in the same manner as the county judge.
§ 574.009. Requirement of Medical
Examination
(a) A
hearing on an application for court-ordered mental health services may not be
held unless there are on file with the court at least two certificates of
medical examination for mental illness completed by different physicians each
of whom has examined the proposed patient during the preceding 30 days. At
least one of the physicians must be a psychiatrist if a psychiatrist is
available in the county.
(b) If the
certificates are not filed with the application, the judge or magistrate
designated under Section 574.021(e) may appoint the necessary physicians to
examine the proposed patient and file the certificates.
(c) The
judge or designated magistrate may order the proposed patient to submit to the
examination and may issue a warrant authorizing a peace officer to take the
proposed patient into custody for the examination.
(d) If the
certificates required under this section are not on file at the time set for
the hearing on the application, the judge shall dismiss the application and order
the immediate release of the proposed patient if that person is not at liberty.
If extremely hazardous weather conditions exist or a disaster occurs, the
presiding judge or magistrate may by written order made each day extend the
period during which the two certificates of medical examination for mental
illness may be filed, and the person may be detained until
§ 574.010. Independent Psychiatric
Evaluation and Expert Testimony
(a) The
court may order an independent evaluation of the proposed patient by a
psychiatrist chosen by the proposed patient if the court determines that the
evaluation will assist the finder of fact. The psychiatrist may testify on
behalf of the proposed patient.
(b) If the
court determines that the proposed patient is indigent, the court may authorize
reimbursement to the attorney ad litem for court-approved expenses incurred in
obtaining expert testimony and may order the proposed patient's county of
residence to pay the expenses.
§ 574.011. Certificate of Medical
Examination for Mental Illness
(a) A
certificate of medical examination for mental illness must be sworn to, dated,
and signed by the examining physician. The certificate must include:
(1) the name and address of the examining physician;
(2) the name and address of the person examined;
(3) the date and place of the examination;
(4) a brief diagnosis of the examined person's physical and
mental condition;
(5) the period, if any, during which the examined person has
been under the care of the examining physician;
(6) an accurate description of the mental health treatment,
if any, given by or administered under the direction of the examining
physician; and
(7) the examining physician's opinion that:
(A) the examined person is mentally
ill; and
(B) as a result of that illness the
examined person is likely to cause serious harm to himself
or to others or is:
(i)
suffering severe and abnormal mental, emotional, or physical distress;
(ii) experiencing substantial mental or physical
deterioration of his ability to function independently, which is exhibited by
the proposed patient's inability, except for reasons of indigence, to provide
for the proposed patient's basic needs, including food, clothing, health, or
safety; and
(iii) not able to make a rational
and informed decision as to whether to submit to treatment.
(b) The
examining physician must specify in the certificate which criterion listed in
Subsection (a)(7)(B) forms the basis for the physician's opinion.
(c) If the
certificate is offered in support of an application for extended mental health
services, the certificate must also include the examining physician's opinion
that the examined person's condition is expected to continue for more than 90
days.
(d) If the
certificate is offered in support of a motion for a protective custody order,
the certificate must also include the examining physician's opinion that the
examined person presents a substantial risk of serious harm to himself or
others if not immediately restrained. The harm may be demonstrated by the
examined person's behavior or by evidence of severe emotional distress and
deterioration in the examined person's mental condition to the extent that the
examined person cannot remain at liberty.
(e) The
certificate must include the detailed reason for each of the examining
physician's opinions under this section.
§ 574.012. Recommendation for Treatment
(a) The
local mental health authority in the county in which an application is filed
shall file with the court a recommendation for the most appropriate treatment
alternative for the proposed patient.
(b) The
court shall direct the local mental health authority to file, before the date
set for the hearing, its recommendation for the proposed patient's treatment.
(c) If
outpatient treatment is recommended, the local mental health authority will
also file a statement as to whether the proposed mental health services are
available.
(d) The
hearing on an application may not be held before the recommendation for
treatment is filed unless the court determines that an emergency exists.
(e) This section
does not relieve a county of its responsibility under other provisions of this
subtitle to diagnose, care for, or treat persons with mental illness.
(f) This
section does not apply to a person for whom treatment in a private mental
health facility is proposed.
§ 574.013.
The
proposed patient is entitled to remain at liberty pending the hearing on the
application unless the person is detained under an appropriate provision of
this subtitle.
§ 574.014. Compilation of Mental
Health Commitment Records
(a) The
clerk of each court with jurisdiction to order commitment under this chapter
shall provide the Office of Court Administration each month with a report of
the number of applications for commitment orders for involuntary mental health
services filed with the court and the disposition of those cases, including the
number of commitment orders for inpatient and outpatient mental health
services. The Office of Court Administration shall make the reported
information available to the department annually.
(b)
Subsection (a) does not require the production of confidential information or
information protected under Section 571.015.
SUBCHAPTER B.
PROTECTIVE CUSTODY
§ 574.021. Motion for Order of
Protective Custody
(a) A
motion for an order of protective custody may be filed only in the court in
which an application for court-ordered mental health services is pending.
(b) The
motion may be filed by the county or district attorney or on the court's own
motion.
(c) The
motion must state that:
(1) the judge or county or district attorney has reason to
believe and does believe that the proposed patient meets the criteria
authorizing the court to order protective custody; and
(2) the belief is derived from:
(A) the representations of a
credible person;
(B) the proposed patient's conduct;
or
(C) the circumstances under which
the proposed patient is found.
(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 fifth day before the day the motion is filed.
(e) The
judge of the court in which the application is pending may designate a
magistrate to issue protective custody orders, including a magistrate appointed
by the judge of another court if the magistrate has at least the qualifications
required for a magistrate of the court in which the application is pending. A
magistrate's duty under this section is in addition to the magistrate's duties
prescribed by other law.
§ 574.022. Issuance of Order
(a) The
judge or designated magistrate may issue a protective custody order if the
judge or magistrate determines:
(1) that a physician has stated his opinion and the detailed
reasons for his opinion that the proposed patient is mentally ill; and
(2) the proposed patient presents a substantial risk of
serious harm to himself or others if not immediately restrained pending the
hearing.
(b) The
determination that the proposed patient presents a substantial risk of serious
harm may be demonstrated by the proposed patient's behavior or by evidence of
severe emotional distress and deterioration in the proposed patient's mental
condition to the extent that the proposed patient cannot remain at liberty.
(c) The
judge or magistrate may make a determination that the proposed patient meets
the criteria prescribed by Subsection (a) from the application and certificate
alone if the judge or magistrate determines that the conclusions of the
applicant and certifying physician are adequately supported by the information
provided.
(d) The
judge or magistrate may take additional evidence if a fair determination of the
matter cannot be made from consideration of the application and certificate
only.
(e) The
judge or magistrate may issue a protective custody order for a proposed patient
who is charged with a criminal offense if the proposed patient meets the
requirements of this section and the facility administrator designated to
detain the proposed patient agrees to the detention.
§ 574.023. Apprehension Under Order
(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 the local
mental health authority for the area. 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.
(b) The
proposed patient shall be detained in the facility until a hearing is held
under Section 574.025.
(c) A
facility must comply with this section only to the extent that the commissioner
determines that the facility has sufficient resources to perform the necessary
services.
(d) A
person may not be detained in a private mental health facility without the
consent of the facility administrator.
§ 574.024. Appointment of Attorney
(a) When a
protective custody order is signed, the judge or designated magistrate shall
appoint an attorney to represent a proposed patient who does not have an
attorney.
(b) Within
a reasonable time before a hearing is held under Section 574.025, the court
that ordered the protective custody shall provide to the proposed patient and
the proposed patient's attorney a written notice that states:
(1) that the proposed patient has been placed under a
protective custody order;
(2) the grounds for the order; and
(3) the time and place of the hearing to determine probable
cause.
§ 574.025. Probable Cause Hearing
(a) A
hearing must be held to determine if:
(1) there is probable cause to believe that a proposed
patient under a protective custody order presents a substantial risk of serious
harm to himself or others to the extent that he cannot be at liberty pending
the hearing on court-ordered mental health services; and
(2) a physician has stated his opinion and the detailed
reasons for his opinion that the proposed patient is mentally ill.
(b) The
hearing must be held not later than 72 hours after the time that the proposed
patient was detained under a protective custody order. If the period ends on a
Saturday, Sunday, or legal holiday, the hearing must be held on the next day
that is not a Saturday, Sunday, or legal holiday. The judge or magistrate may
postpone the hearing each day for an additional 24 hours if the judge or
magistrate declares that an extreme emergency exists because of extremely
hazardous weather conditions or the occurrence of a disaster that threatens the
safety of the proposed patient or another essential party to the hearing.
(c) The
hearing shall be held before a magistrate or, at the discretion of the
presiding judge, before a master appointed by the presiding judge.
Notwithstanding any other law or requirement, a master appointed to conduct a
hearing under this section may practice law in the court the master serves. The
master is entitled to reasonable compensation.
(d) The
proposed patient and the proposed patient's attorney shall have an opportunity
at the hearing to appear and present evidence to challenge the allegation that
the proposed patient presents a substantial risk of serious harm to himself or
others.
(e) The
magistrate or master may consider evidence, including letters, affidavits, and
other material, that may not be admissible or sufficient in a subsequent
commitment hearing.
(f) The
state may prove its case on the physician's certificate of medical examination
filed in support of the initial motion.
§ 574.026. Order for Continued
Detention
(a) The
magistrate or master shall order that a proposed patient remain in protective
custody if the magistrate or master determines after the hearing that an
adequate factual basis exists for probable cause to believe that the proposed
patient presents a substantial risk of serious harm to himself or others to the
extent that he cannot remain at liberty pending the hearing on court-ordered
mental health services.
(b) The
magistrate or master shall arrange for the proposed patient to be returned to
the mental health facility or other suitable place, along with copies of the
certificate of medical examination, any affidavits or other material submitted
as evidence in the hearing, and the notification prepared as prescribed by
Subsection (d).
(c) A copy
of the notification of probable cause hearing and the supporting evidence shall
be filed with the court that entered the original order of protective custody.
(d) The
notification of probable cause hearing shall read as follows:
(Style of
Case)
NOTIFICATION
OF PROBABLE CAUSE HEARING
On this the
__________ day of __________, 19___, the undersigned hearing officer heard
evidence concerning the need for protective custody of __________ (hereinafter
referred to as proposed patient). The proposed patient was given the
opportunity to challenge the allegations that (s)he presents a substantial risk
of serious harm to self or others.
The proposed
patient and his attorney ______________________ have been (attorney)
given written notice that the proposed patient
was placed under an order of protective custody and the reasons for such order
on __________. (date of notice)
I have
examined the certificate of medical examination for mental illness and
__________________________________. Based on this evidence, I find that (other
evidence considered) there is probable cause to believe that the proposed
patient presents a substantial risk of serious harm to himself (yes ____ or no
____) or others (yes ____ or no ____) such that (s)he cannot be at liberty
pending final hearing because __________ __________. (reasons for finding; type
of risk found)
§ 574.027. Detention in Protective
Custody
(a) A
person under a protective custody order shall be detained in a mental health
facility deemed suitable by the local mental health authority for the area. 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.
(b) The
facility administrator or the administrator's designee shall detain a person
under a protective custody order in the facility until a final order for
court-ordered mental health services is entered or the person is released or
discharged under Section 574.028.
(c) A
person under a protective custody order may not be detained in a nonmedical facility used to detain persons who are charged
with or convicted of a crime except because of and during an extreme emergency
and in no case for longer than 72 hours, excluding Saturdays, Sundays, legal
holidays, and the period prescribed by Section 574.025(b) for an extreme
emergency. The person must be isolated from any person who is charged with or
convicted of a crime.
(d) The
county health authority shall ensure that proper care and medical attention are
made available to a person who is detained in a nonmedical
facility under Subsection (c).
(e)
Repealed by Acts 2001, 77th Leg., ch. 367, § 19, eff.
§ 574.028. Release From Detention
(a) The
magistrate or master shall order the release of a person under a protective
custody order if the magistrate or master 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 himself or others.
(b)
Arrangements shall be made to return a person released under Subsection (a) to:
(1) the location of the person's apprehension;
(2) the person's residence in this state; or
(3) another suitable location.
(c) A
facility administrator shall discharge a person held under a protective custody
order if:
(1) the facility administrator does not receive notice that the
person's continued detention is authorized after a probable cause hearing held
within 72 hours after the detention began, excluding Saturdays, Sundays, legal
holidays, and the period prescribed by Section 574.025(b) for extreme
emergencies;
(2) a final order for court-ordered mental health services
has not been entered within the time prescribed by Section 574.005; or
(3) the facility administrator or the administrator's
designee determines that the person no longer meets the criteria for protective
custody prescribed by Section 574.022.
SUBCHAPTER C.
PROCEEDINGS FOR COURT-ORDERED MENTAL HEALTH SERVICES
§ 574.031. General Provisions
Relating to Hearing
(a) Except
as provided by Subsection (b), the judge may hold a hearing on an application
for court-ordered mental health services at any suitable location in the
county. The hearing should be held in a physical setting that is not likely to
have a harmful effect on the proposed patient.
(b) On the
request of the proposed patient or the proposed patient's attorney the hearing
on the application shall be held in the county courthouse.
(c) The proposed patient is entitled to be present at the hearing. The proposed patient or the