CHAPTER 571. GENERAL PROVISIONS
HEALTH AND SAFETY CODE
TITLE 7. MENTAL HEALTH AND MENTAL RETARDATION
SUBTITLE C. TEXAS MENTAL HEALTH CODE
CHAPTER 571. GENERAL PROVISIONS
Sec. 571.001. SHORT TITLE. This subtitle may be cited as the
Texas Mental Health Code.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 571.002. PURPOSE. The purpose of this subtitle is to
provide to each person having severe mental illness access to
humane care and treatment by:
(1) facilitating treatment in an appropriate setting;
(2) enabling the person to obtain necessary evaluation, care,
treatment, and rehabilitation with the least possible trouble,
expense, and embarrassment to the person and the person's family;
(3) eliminating, if requested, the traumatic effect on the
person's mental health of public trial and criminal-like
procedures;
(4) protecting the person's right to a judicial determination of
the person's need for involuntary treatment;
(5) defining the criteria the state must meet to order
involuntary care and treatment;
(6) establishing the procedures to obtain facts, carry out
examinations, and make prompt and fair decisions;
(7) safeguarding the person's legal rights so as to advance and
not impede the therapeutic and protective purposes of involuntary
care; and
(8) safeguarding the rights of the person who voluntarily
requests inpatient care.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 571.003. DEFINITIONS. In this subtitle:
(1) "Board" means the Texas Board of Mental Health and Mental
Retardation.
(2) "Commissioner" means the commissioner of mental health and
mental retardation.
(3) "Commitment order" means a court order for involuntary
inpatient mental health services under this subtitle.
(4) "Community center" means a center established under
Subchapter A, Chapter 534 that provides mental health services.
(5) "Department" means the Texas Department of Mental Health and
Mental Retardation.
(6) "Facility administrator" means the individual in charge of a
mental health facility.
(7) "General hospital" means a hospital operated primarily to
diagnose, care for, and treat physically ill persons.
(8) "Hospital administrator" means the individual in charge of a
hospital.
(9) "Inpatient mental health facility" means a mental health
facility that can provide 24-hour residential and psychiatric
services and that is:
(A) a facility operated by the department;
(B) a private mental hospital licensed by the Texas Department
of Health;
(C) a community center, facility operated by or under contract
with a community center or other entity the department designates
to provide mental health services;
(D) a local mental health authority or a facility operated by or
under contract with a local mental health authority;
(E) an identifiable part of a general hospital in which
diagnosis, treatment, and care for persons with mental illness is
provided and that is licensed by the Texas Department of Health;
or
(F) a hospital operated by a federal agency.
(10) "Legal holiday" includes a holiday listed in Section
662.021, Government Code, and an officially designated county
holiday applicable to a court in which proceedings under this
subtitle are held.
(11) "Local mental health authority" means an entity to which
the board delegates its authority and responsibility within a
specified region for planning, policy development, coordination,
including coordination with criminal justice entities, and
resource development and allocation and for supervising and
ensuring the provision of mental health services to persons with
mental illness in the most appropriate and available setting to
meet individual needs in one or more local service areas.
(12) "Mental health facility" means:
(A) an inpatient or outpatient mental health facility operated
by the department, a federal agency, a political subdivision, or
any person;
(B) a community center or a facility operated by a community
center; or
(C) that identifiable part of a general hospital in which
diagnosis, treatment, and care for persons with mental illness is
provided.
(13) "Mental hospital" means a hospital:
(A) operated primarily to provide inpatient care and treatment
for persons with mental illness; or
(B) operated by a federal agency that is equipped to provide
inpatient care and treatment for persons with mental illness.
(14) "Mental illness" means an illness, disease, or condition,
other than epilepsy, senility, alcoholism, or mental deficiency,
that:
(A) substantially impairs a person's thought, perception of
reality, emotional process, or judgment; or
(B) grossly impairs behavior as demonstrated by recent disturbed
behavior.
(15) "Non-physician mental health professional" means:
(A) a psychologist licensed to practice in this state and
designated as a health-service provider;
(B) a registered nurse with a master's or doctoral degree in
psychiatric nursing;
(C) a licensed clinical social worker;
(D) a licensed professional counselor licensed to practice in
this state; or
(E) a licensed marriage and family therapist licensed to
practice in this state.
(16) "Patient" means an individual who is receiving voluntary or
involuntary mental health services under this subtitle.
(17) "Person" includes an individual, firm, partnership,
joint-stock company, joint venture, association, and corporation.
(18) "Physician" means:
(A) a person licensed to practice medicine in this state;
(B) a person employed by a federal agency who has a license to
practice medicine in any state; or
(C) a person authorized to perform medical acts under an
institutional permit at a Texas postgraduate training program
approved by the Accreditation Council on Graduate Medical
Education, the American Osteopathic Association, or the Texas
State Board of Medical Examiners.
(19) "Political subdivision" includes a county, municipality, or
hospital district in this state but does not include a
department, board, or agency of the state that has statewide
authority and responsibility.
(20) "Private mental hospital" means a mental hospital operated
by a person or political subdivision.
(21) "State mental hospital" means a mental hospital operated by
the department.
(22) Repealed by Acts 2001, 77th Leg., ch. 367, Sec. 19, eff.
Sept. 1, 2001.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1993, 73rd Leg., ch. 573, Sec. 4.01, eff.
Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(15), eff.
Sept. 1, 1995; Acts 1997, 75th Leg., ch. 500, Sec. 2, eff. May
31, 1997; Acts 1999, 76th Leg., ch. 75, Sec. 1, eff. May 12,
1999; Acts 1999, 76th Leg., ch. 543, Sec. 2, eff. June 18, 1999;
Acts 2001, 77th Leg., ch. 722, Sec. 1, eff. June 13, 2001; Acts
2001, 77th Leg., ch. 367, Sec. 4, 19, eff. Sept. 1, 2001; Acts
2003, 78th Leg., ch. 892, Sec. 27, eff. Sept. 1, 2003.
Sec. 571.004. LEAST RESTRICTIVE APPROPRIATE SETTING. The least
restrictive appropriate setting for the treatment of a patient is
the treatment setting that:
(1) is available;
(2) provides the patient with the greatest probability of
improvement or cure; and
(3) is no more restrictive of the patient's physical or social
liberties than is necessary to provide the patient with the most
effective treatment and to protect adequately against any danger
the patient poses to himself or others.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 571.005. TEXAS MENTAL HEALTH CODE INFORMATION PROGRAM. (a)
The department shall hold seminars as necessary to increase
understanding of and properly implement revisions to this
subtitle.
(b) The department may arrange for community centers, other
state agencies, and other public and private organizations or
programs to prepare instructional materials and conduct the
seminars.
(c) The department may solicit, receive, and expend funds it
receives from public or private organizations to fund the
seminars.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 571.006. DEPARTMENT POWERS. The department may:
(1) adopt rules as necessary for the proper and efficient
treatment of persons with mental illness;
(2) prescribe the form and content of applications,
certificates, records, and reports provided for under this
subtitle;
(3) require reports from a facility administrator relating to
the admission, examination, diagnosis, release, or discharge of
any patient;
(4) regularly visit each mental health facility to review the
commitment procedure for each new patient admitted after the last
visit; and
(5) visit a mental health facility to investigate a complaint
made by a patient or by a person on behalf of a patient.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 571.0065. TREATMENT METHODS. (a) The board by rule may
adopt procedures for an advisory committee to review treatment
methods for persons with mental illness.
(b) A state agency that has knowledge of or receives a complaint
relating to an abusive treatment method shall report that
knowledge or forward a copy of the complaint to the board.
(c) A mental health facility, physician, or other mental health
professional is not liable for an injury or other damages
sustained by a person as a result of the failure of the facility,
physician, or professional to administer or perform a treatment
prohibited by statute or rules adopted by the board.
(d) The board shall report annually to the governor, lieutenant
governor, speaker of the house of representatives, Senate Health
and Human Services Committee, and House Public Health Committee
on the treatment methods reviewed under this section and the
findings and recommendations made regarding each reviewed
treatment method.
Added by Acts 1993, 73rd Leg., ch. 573, Sec. 3.01(a), eff. Sept.
1, 1993. Amended by Acts 1997, 75th Leg., ch. 337, Sec. 1, eff.
May 27, 1997.
Sec. 571.0066. PRESCRIPTION MEDICATION INFORMATION. (a) The
board by rule shall require a mental health facility that admits
a patient under this subtitle to provide to the patient in the
patient's primary language, if possible, information relating to
prescription medications ordered by the patient's treating
physician.
(b) At a minimum, the required information must:
(1) identify the major types of prescription medications; and
(2) specify for each major type:
(A) the conditions the medications are commonly used to treat;
(B) the beneficial effects on those conditions generally
expected from the medications;
(C) side effects and risks associated with the medications;
(D) commonly used examples of medications of the major type; and
(E) sources of detailed information concerning a particular
medication.
(c) 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.
Added by Acts 1993, 73rd Leg., ch. 903, Sec. 1.01, eff. Aug. 30,
1993. Renumbered from Health & Safety Code Sec. 571.0065 by
Acts 1995, 74th Leg., ch. 76, Sec. 17.01(32), eff. Sept. 1, 1995.
Sec. 571.0067. RESTRAINT AND SECLUSION. A person providing
services to a patient of a mental hospital or mental health
facility shall comply with Chapter 322 and the rules adopted
under that chapter.
Added by Acts 2005, 79th Leg., Ch.
698, Sec. 6, eff. September 1, 2005.
Sec. 571.007. DELEGATION OF POWERS AND DUTIES. (a) Except as
otherwise expressly provided by this subtitle, an authorized,
qualified department employee may exercise a power granted to or
perform a duty imposed on the department.
(b) Except as otherwise expressly provided by this subtitle, an
authorized, qualified person designated by a facility
administrator may exercise a power granted to or perform a duty
imposed on the facility administrator.
(c) The delegation of a duty under this section does not relieve
the department or a facility administrator from responsibility.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 571.008. RETURN OF COMMITTED PATIENT TO STATE OF RESIDENCE.
(a) The department may return a nonresident patient committed
to a department mental health facility to the proper agency of
the patient's state of residence.
(b) The department may permit the return of a resident of this
state who is committed to a mental health facility in another
state.
(c) The department may enter into reciprocal agreements with the
proper agencies of other states to facilitate the return of
persons committed to mental health facilities in this state or
another state to the states of their residence.
(d) A department facility administrator may detain for not more
than 96 hours pending a court order in a commitment proceeding in
this state a patient returned to this state from another state
where the person was committed.
(e) The state returning a committed patient to another state
shall bear the expenses of returning the patient.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 571.009. EFFECT OF CERTAIN CONDITIONS ON ADMISSION OR
COMMITMENT. A person with mental illness may not be denied
admission or commitment to a mental health facility because the
person also suffers from epilepsy, senility, alcoholism, or
mental deficiency.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 571.010. AGENT FOR SERVICE OF PROCESS. (a) The facility
administrator or the superintendent, supervisor, or manager of an
inpatient mental health facility is the agent for service of
process on a patient confined in the facility.
(b) The person receiving process shall sign a certificate with
the person's name and title that states that the person is aware
of the provisions of this subtitle. The certificate shall be
attached to the citation and returned by the serving officer.
(c) The person receiving process, not later than the third day
after its receipt, shall forward it by registered mail to the
patient's legal guardian or personally deliver it to the patient,
whichever appears to be in the patient's best interest.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 571.011. APPLICATION TO PERSONS CHARGED WITH CRIME. (a) A
child alleged to have engaged in delinquent conduct or conduct
indicating a need for supervision under Title 3, Family Code, is
not considered under this subtitle to be a person charged with a
criminal offense.
(b) The provisions in this subtitle relating to the discharge,
furlough, or transfer of a patient do not apply to a person
charged with a criminal offense who is admitted to a mental
health facility under Subchapter D or E, Chapter 46B, Code of
Criminal Procedure.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 2003, 78th Leg., ch. 35, Sec. 9, eff. Jan.
1, 2004.
Sec. 571.012. COURT HOURS; AVAILABILITY OF JUDGE OR MAGISTRATE.
The probate court or court having probate jurisdiction shall be
open for proceedings under this subtitle during normal business
hours. The probate judge or magistrate shall be available at all
times at the request of a person apprehended or detained under
Chapter 573, or a proposed patient under Chapter 574.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 2001, 77th Leg., ch. 485, Sec. 1, eff. June
11, 2001.
Sec. 571.013. METHOD OF GIVING NOTICE. Except as otherwise
provided by this subtitle, notice required under this subtitle
may be given by delivering a copy of the notice or document in
person or in another manner directed by the court that is
reasonably calculated to give actual notice.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 571.014. FILING REQUIREMENTS. (a) Each application,
petition, certificate, or other paper permitted or required to be
filed in a probate court or court having probate jurisdiction
under this subtitle must be filed with the county clerk of the
proper county.
(b) The county clerk shall file each paper after endorsing on
it:
(1) the date on which the paper is filed;
(2) the docket number; and
(3) the clerk's official signature.
(c) A person may initially file a paper with the county clerk by
the use of reproduced, photocopied, or electronically transmitted
paper if the person files the original signed copies of the paper
with the clerk not later than the 72nd hour after the hour on
which the initial filing is made. If the 72-hour period ends on a
Saturday, Sunday, or legal holiday, the filing period is extended
until 4 p.m. on the first succeeding business day. If extremely
hazardous weather conditions exist or a disaster occurs, the
presiding judge or magistrate may by written order made each day
extend the filing period until 4 p.m. on the first succeeding
business day. The written order must declare that an emergency
exists because of the weather or the occurrence of a disaster. If
a person detained under this subtitle would otherwise be released
because the original signed copy of a paper is not filed within
the 72-hour period but for the extension of the filing period
under this section, the person may be detained until the
expiration of the extended filing period. This subsection does
not affect another provision of this subtitle requiring the
release or discharge of a person.
(d) If the clerk does not receive the original signed copy of a
paper within the period prescribed by this section, the judge may
dismiss the proceeding on the court's own motion or on the motion
of a party and, if the proceeding is dismissed, shall order the
immediate release of a proposed patient who is not at liberty.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1993, 73rd Leg., ch. 107, Sec. 6.42, eff.
Aug. 30, 1993.
Sec. 571.015. INSPECTION OF COURT RECORDS. (a) Each paper in a
docket for mental health proceedings in the county clerk's
office, including the docket book, indexes, and judgment books,
is a public record of a private nature that may be used,
inspected, or copied only under a written order issued by the
county judge, a judge of a court that has probate jurisdiction,
or a judge of a district court having jurisdiction in the county
in which the docket is located.
(b) A judge may not issue an order under Subsection (a) unless
the judge enters a finding that:
(1) the use, inspection, or copying is justified and in the
public interest; or
(2) the paper is to be released to the person to whom it relates
or to a person designated in a written release signed by the
person to whom the paper relates.
(c) In addition to the finding required by Subsection (b), if a
law relating to confidentiality of mental health information or
physician-patient privilege applies, the judge must find that the
reasons for the use, inspection, or copying fall within the
applicable statutory exemptions.
(d) The papers shall be released to an attorney representing the
proposed patient in a proceeding held under this subtitle.
(e) This section does not affect access of law enforcement
personnel to necessary information in execution of a writ or
warrant.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 571.016. REPRESENTATION OF STATE. Unless specified
otherwise, in a hearing held under this subtitle:
(1) the county attorney shall represent the state; or
(2) if the county has no county attorney, the district attorney,
the criminal district attorney, or a court-appointed special
prosecutor shall represent the state.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1995, 74th Leg., ch. 322, Sec. 1, eff. Aug.
28, 1995; Acts 1995, 74th Leg., ch. 770, Sec. 1, eff. June 16,
1995.
Sec. 571.0165. EXTENSION OF DETENTION PERIOD. (a) If extremely
hazardous weather conditions exist or a disaster occurs, the
judge of a court having jurisdiction of a proceeding under
Chapters 572, 573, 574, and 575 or a magistrate appointed by the
judge may by written order made each day extend the period during
which the person may be detained under those chapters until 4
p.m. on the first succeeding business day.
(b) The written order must declare that an emergency exists
because of the weather or the occurrence of a disaster.
(c) This section does not apply to a situation for which a
specific procedure is prescribed by this subtitle for extending
the detention period because of extremely hazardous weather
conditions or the occurrence of a disaster.
Added by Acts 1993, 73rd Leg., ch. 107, Sec. 6.43, eff. Aug. 30,
1993.
Sec. 571.0166. PROCEEDINGS ON BEHALF OF THE STATE. All
applications under this subtitle shall be filed on behalf of the
State of Texas and styled "The State of Texas for the Best
Interest and Protection of (NAME) the (patient or proposed
patient)."
Added by Acts 1995, 74th Leg., ch. 770, Sec. 2, eff. June 16,
1995.
Sec. 571.017. COMPENSATION OF COURT-APPOINTED PERSONNEL. (a)
The court shall order the payment of reasonable compensation to
attorneys, physicians, language interpreters, sign interpreters,
and associate judges appointed under this subtitle.
(b) The compensation paid shall be taxed as costs in the case.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
334, Sec. 2, eff. September 1, 2009.
Sec. 571.018. COSTS. (a) The costs for a hearing or proceeding
under this subtitle shall be paid by:
(1) the county that initiates emergency detention procedures
under Subchapter A or B, Chapter 573; or
(2) if no emergency detention procedures are initiated, the
county that accepts an application for court-ordered mental
health services, issues an order for protective custody, or
issues an order for temporary mental health services.
(b) The county responsible for the costs of a hearing or
proceeding under Subsection (a) shall pay the costs of all
subsequent hearings or proceedings for that person under this
subtitle until the person is discharged from mental health
services. The costs shall be billed by the clerk of the court
conducting the hearings.
(c) Costs under this section include:
(1) attorney's fees;
(2) physician examination fees;
(3) compensation for court-appointed personnel listed under
Section 571.017;
(4) expenses of transportation to a mental health facility or to
a federal agency not to exceed $50 if transporting within the
same county and not to exceed the reasonable cost of
transportation if transporting between counties;
(5) costs and salary supplements authorized under Sections
574.031(i) and (j); and
(6) prosecutor's fees authorized under Section 574.031(k).
(d) A county is entitled to reimbursement for costs actually
paid by the county from:
(1) the patient; or
(2) a person or estate liable for the patient's support in a
department mental health facility.
(e) The state shall pay the cost of transporting a discharged or
furloughed patient to the patient's home or of returning a
patient absent without authority unless the patient or someone
responsible for the patient is able to pay the costs.
(f) A proposed patient's county of residence shall pay the
court-approved expenses incurred under Section 574.010 if ordered
by the court under that section.
(g) A judge who holds hearings at locations other than the
county courthouse is entitled to additional compensation as
provided by Sections 574.031(h) and (i).
(h) The state or a county may not pay any costs for a patient
committed to a private mental hospital unless:
(1) a public facility is not available; and
(2) the commissioners court of the county authorizes the
payment, if appropriate.
(i) The county may not require a person other than the patient
to pay any costs associated with a hearing or proceeding under
this subtitle, including a filing fee or other court costs
imposed under Chapter 118, Local Government Code, Chapter 51,
Government Code, or other law, unless the county first determines
that:
(1) the costs relate to services provided or to be provided in a
private mental hospital; or
(2) the person charged with the costs is a person or estate
liable for the patient's support in a department mental health
facility.
(j) When an inpatient mental health facility as defined under
Section 571.003(9)(B) or (E) files an affidavit with the clerk of
the court certifying that it has received no compensation or
reimbursement for the treatment of a person for whom court costs
have been paid or advanced, the judge of the probate court shall
order the clerk of the court to refund the costs.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1993, 73rd Leg., ch. 107, Sec. 6.44, eff.
Aug. 30, 1993; Acts 1993, 73rd Leg., ch. 174, Sec. 1, eff. Aug.
30, 1993; Acts 1995, 74th Leg., ch. 770, Sec. 3, eff. June 16,
1995; Acts 1997, 75th Leg., ch. 1354, Sec. 2, eff. Sept. 1, 1997;
Acts 1999, 76th Leg., ch. 527, Sec. 1, eff. June 18, 1999; Acts
1999, 76th Leg., ch. 1512, Sec. 1, eff. Sept. 1, 1999.
Sec. 571.019. LIMITATION OF LIABILITY. (a) A person who
participates in the examination, certification, apprehension,
custody, transportation, detention, treatment, or discharge of
any person or in the performance of any other act required or
authorized by this subtitle and who acts in good faith,
reasonably, and without negligence is not criminally or civilly
liable for that action.
(b) A physician performing a medical examination and providing
information to the court in a court proceeding held under this
subtitle or providing information to a peace officer to
demonstrate the necessity to apprehend a person under Chapter 573
is considered an officer of the court and is not liable for the
examination or testimony when acting without malice.
(c) A physician or inpatient mental health facility that
discharges a voluntary patient is not liable for the discharge
if:
(1) a written request for the patient's release was filed and
not withdrawn; and
(2) the person who filed the written request for discharge is
notified that the person assumes all responsibility for the
patient on discharge.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 571.020. CRIMINAL PENALTIES. (a) A person commits an
offense if the person intentionally causes, conspires with
another to cause, or assists another to cause the unwarranted
commitment of a person to a mental health facility.
(b) A person commits an offense if the person knowingly violates
a provision of this subtitle.
(c) An individual who commits an offense under this section is
subject on conviction to:
(1) a fine of not less than $50 or more than $25,000 for each
violation and each day of a continuing violation;
(2) confinement in jail for not more than two years for each
violation and each day of a continuing violation; or
(3) both fine and confinement.
(d) A person other than an individual who commits an offense
under this section is subject on conviction to a fine of not less
than $500 or more than $100,000 for each violation and each day
of a continuing violation.
(e) If it is shown on the trial of an individual that the
individual has previously been convicted of an offense under this
section, the offense is punishable by:
(1) a fine of not less than $100 or more than $50,000 for each
violation and each day of a continuing violation;
(2) confinement in jail for not more than four years for each
violation and each day of a continuing violation; or
(3) both fine and confinement.
(f) If it is shown on the trial of a person other than an
individual that the person previously has been convicted of an
offense under this section, the offense is punishable by a fine
of not less than $1,000 or more than $200,000 for each violation
and each day of a continuing violation.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1993, 73rd Leg., ch. 107, Sec. 6.45, eff.
Aug. 30, 1993; Acts 1993, 73rd Leg., ch. 705, Sec. 3.10(a), eff.
Sept. 1, 1993.
Sec. 571.021. ENFORCEMENT OFFICERS. The state attorney general
and the district and county attorneys within their respective
jurisdictions shall prosecute violations of this subtitle.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 571.022. INJUNCTION. (a) At the request of the
department, the attorney general or the appropriate district or
county attorney shall institute and conduct in the name of the
state a suit for a violation of this subtitle or a rule adopted
under this subtitle.
(b) On his own initiative, the attorney general or district or
county attorney may maintain an action for a violation of this
subtitle or a rule adopted under this subtitle in the name of the
state.
(c) Venue may be maintained in Travis County or in the county in
which the violation occurred.
(d) The district court may grant any prohibitory or mandatory
injunctive relief warranted by the facts, including a temporary
restraining order, temporary injunction, or permanent injunction.
Added by Acts 1993, 73rd Leg., ch. 705, Sec. 3.11, eff. Sept. 1,
1993.
Sec. 571.023. CIVIL PENALTY. (a) A person is subject to a
civil penalty of not more than $25,000 for each day of violation
and for each act of violation of this subtitle or a rule adopted
under this subtitle. In determining the amount of the civil
penalty, the court shall consider:
(1) the person's or facility's previous violations;
(2) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of the violation;
(3) whether the health and safety of the public was threatened
by the violation;
(4) the demonstrated good faith of the person or facility; and
(5) the amount necessary to deter future violations.
(b) The department or party bringing the suit may:
(1) combine a suit to assess and recover civil penalties with a
suit for injunctive relief brought under Section 571.022 or
577.019; or
(2) file a suit to assess and recover civil penalties
independently of a suit for injunctive relief.
(c) At the request of the department, the attorney general or
the appropriate district or county attorney shall institute and
conduct the suit authorized by Subsection (b) in the name of the
state.
(d) On his own initiative, the attorney general, district
attorney, or county attorney may maintain an action as authorized
by Subsection (b) for a violation of this subtitle or a rule
adopted under this subtitle in the name of the state.
(e) The department and the party bringing the suit may recover
reasonable expenses incurred in obtaining injunctive relief,
civil penalties, or both, including investigation costs, court
costs, reasonable attorney fees, witness fees, and deposition
expenses.
(f) A penalty collected under this section by the attorney
general shall be deposited to the credit of the general revenue
fund. A penalty collected under this section by a district or
county attorney shall be deposited to the credit of the general
fund of the county in which the suit was heard.
(g) The civil penalty and injunctive relief authorized by this
section and Sections 571.022 and 577.019 are in addition to any
other civil, administrative, or criminal remedies provided by
law.
Added by Acts 1993, 73rd Leg., ch. 705, Sec. 3.11, eff. Sept. 1,
1993.
Sec. 571.024. NOTICE OF SUIT. Not later than the seventh day
before the date on which the attorney general intends to bring
suit on his own initiative, the attorney general shall provide to
the department notice of the suit. The attorney general is not
required to provide notice of a suit if the attorney general
determines that waiting to bring suit until the notice is
provided will create an immediate threat to the health and safety
of a patient. This section does not create a requirement that the
attorney general obtain the permission of or a referral from the
department before filing suit.
Added by Acts 1993, 73rd Leg., ch. 705, Sec. 3.11, eff. Sept. 1,
1993.
Sec. 571.025. ADMINISTRATIVE PENALTY. (a) The board may impose
an administrative penalty against a person licensed or regulated
under this subtitle who violates this subtitle or a rule or order
adopted under this subtitle.
(b) The penalty for a violation may be in an amount not to
exceed $25,000. Each day a violation continues or occurs is a
separate violation for purposes of imposing a penalty.
(c) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of any prohibited acts, and
the hazard or potential hazard created to the health, safety, or
economic welfare of the public;
(2) enforcement costs relating to the violation, including
investigation costs, witness fees, and deposition expenses;
(3) the history of previous violations;
(4) the amount necessary to deter future violations;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
(d) If the commissioner determines that a violation has
occurred, the commissioner may issue to the board a report that
states the facts on which the determination is based and the
commissioner's recommendation on the imposition of a penalty,
including a recommendation on the amount of the penalty.
(e) Within 14 days after the date the report is issued, the
commissioner shall give written notice of the report to the
person. The notice may be given by certified mail. The notice
must include a brief summary of the alleged violation and a
statement of the amount of the recommended penalty and must
inform the person that the person has a right to a hearing on the
occurrence of the violation, the amount of the penalty, or both
the occurrence of the violation and the amount of the penalty.
(f) Within 20 days after the date the person receives the
notice, the person in writing may accept the determination and
recommended penalty of the commissioner or may make a written
request for a hearing on the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation
and the amount of the penalty.
(g) If the person accepts the determination and recommended
penalty of the commissioner, the board by order shall approve the
determination and impose the recommended penalty.
(h) If the person requests a hearing or fails to respond timely
to the notice, the commissioner shall set a hearing and give
notice of the hearing to the person. The administrative law judge
shall make findings of fact and conclusions of law and promptly
issue to the board a proposal for a decision about the occurrence
of the violation and the amount of a proposed penalty. Based on
the findings of fact, conclusions of law, and proposal for a
decision, the board by order may find that a violation has
occurred and impose a penalty or may find that no violation
occurred.
(i) The notice of the board's order given to the person under
Chapter 2001, Government Code must include a statement of the
right of the person to judicial review of the order.
(j) Within 30 days after the date the board's order is final as
provided by Subchapter F, Chapter 2001, Government Code, the
person shall:
(1) pay the amount of the penalty;
(2) pay the amount of the penalty and file a petition for
judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation
and the amount of the penalty; or
(3) without paying the amount of the penalty, file a petition
for judicial review contesting the occurrence of the violation,
the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty.
(k) Within the 30-day period, a person who acts under Subsection
(j)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court for placement
in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by
the court for the amount of the penalty and that is effective
until all judicial review of the board's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person
stating that the person is financially unable to pay the amount
of the penalty and is financially unable to give the supersedeas
bond; and
(B) giving a copy of the affidavit to the commissioner by
certified mail.
(l) The commissioner on receipt of a copy of an affidavit under
Subsection (k)(2) may file with the court within five days after
the date the copy is received a contest to the affidavit. The
court shall hold a hearing on the facts alleged in the affidavit
as soon as practicable and shall stay the enforcement of the
penalty on finding that the alleged facts are true. The person
who files an affidavit has the burden of proving that the person
is financially unable to pay the amount of the penalty and to
give a supersedeas bond.
(m) If the person does not pay the amount of the penalty and the
enforcement of the penalty is not stayed, the commissioner may
refer the matter to the attorney general for collection of the
amount of the penalty.
(n) Judicial review of the order of the board:
(1) is instituted by filing a petition as provided by Subchapter
G, Chapter 2001, Government Code; and
(2) is under the substantial evidence rule.
(o) If the court sustains the occurrence of the violation, the
court may uphold or reduce the amount of the penalty and order
the person to pay the full or reduced amount of the penalty. If
the court does not sustain the occurrence of the violation, the
court shall order that no penalty is owed.
(p) When the judgment of the court becomes final, the court
shall proceed under this subsection. If the person paid the
amount of the penalty and if that amount is reduced or is not
upheld by the court, the court shall order that the appropriate
amount plus accrued interest be remitted to the person. The rate
of the interest is the rate charged on loans to depository
institutions by the New York Federal Reserve Bank, and the
interest shall be paid for the period beginning on the date the
penalty was paid and ending on the date the penalty is remitted.
If the person gave a supersedeas bond and if the amount of the
penalty is not upheld by the court, the court shall order the
release of the bond. If the person gave a supersedeas bond and if
the amount of the penalty is reduced, the court shall order the
release of the bond after the person pays the amount.
(q) A penalty collected under this section shall be remitted to
the comptroller for deposit in the general revenue fund.
(r) All proceedings under this section are subject to Chapter
2001, Government Code.
Added by Acts 1993, 73rd Leg., ch. 705, Sec. 3.11, eff. Sept. 1,
1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49),
(53), (59), eff. Sept. 1, 1995.
Sec. 571.026. RECOVERY OF COSTS. If the attorney general brings
an action to enforce an administrative penalty assessed under
this chapter and the court orders the payment of the penalty, the
attorney general may recover reasonable expenses incurred in the
investigation, initiation, or prosecution of the enforcement
suit, including investigative costs, court costs, reasonable
attorney fees, witness fees, and deposition expenses.
Added by Acts 1993, 73rd Leg., ch. 705, Sec. 3.111, eff. Sept. 1,
1993.
Sec. 571.027. ADVISORY COMMITTEE ON INPATIENT MENTAL HEALTH
SERVICES. (a) The board shall appoint an advisory committee on
inpatient mental health services to advise the board on:
(1) issues and policies related to the provision of mental
health services in a facility described by Section 571.003(9)(B)
or (E);
(2) coordination and communication between the department, the
Texas Department of Health, and facilities described by Section
571.003(9)(B) or (E) to address consistency between the agencies
in interpretation and enforcement of agency policies and other
rules; and
(3) training for inpatient mental health facility surveyors or
investigators.
(b) The board shall appoint to the committee:
(1) three representatives of hospitals, at least two of whom
represent a facility described by Section 571.003(9)(B) or (E);
(2) three consumers of mental health services, each of whom has
received treatment in a facility described by Section
571.003(9)(B) or (E);
(3) two physicians licensed under Subtitle B, Title 3,
Occupations Code, who practice psychiatry and are board certified
in psychiatry, at least one of whom is board certified in child
and adolescent psychiatry; and
(4) one family member of a person who has been a consumer of
mental health services provided by a facility described by
Section 571.003(9)(B) or (E).
(c) The Texas Board of Health shall provide the advisory
committee with two persons to represent the Texas Department of
Health. The representatives may address the advisory committee on
any issue relevant to a matter before the advisory committee, but
the representatives may not vote on any matter. The Texas Board
of Health shall consider designating an inpatient mental health
facility surveyor or investigator to be a representative under
this subsection.
(d) Except for persons who represent the Texas Department of
Health designated under Subsection (c), members of the advisory
committee serve staggered four-year terms. A member's term
expires on August 31 of the fourth year following the member's
appointment.
(e) The board shall fill vacancies on the board in the same
manner as the original appointment.
(f) The committee shall meet not fewer than four times each
calendar year.
(g) Section 2110.008, Government Code, does not apply to the
advisory committee.
Added by Acts 1997, 75th Leg., ch. 1027, Sec. 2, eff. Sept. 1,
1997. Amended by Acts 2001, 77th Leg., ch. 745, Sec. 1, eff. June
13, 2001; Acts 2001, 77th Leg., ch. 1420, Sec. 14.803, eff. Sept.
1, 2001.