CHAPTER 574. COURT-ORDERED MENTAL HEALTH SERVICES
HEALTH AND SAFETY CODE
TITLE 7. MENTAL HEALTH AND MENTAL RETARDATION
SUBTITLE C. TEXAS MENTAL HEALTH CODE
CHAPTER 574. COURT-ORDERED MENTAL HEALTH SERVICES
SUBCHAPTER A. APPLICATION FOR COMMITMENT AND PREHEARING
PROCEDURES
Sec. 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 Subchapter F, Chapter 46B, 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.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1995, 74th Leg., ch. 770, Sec. 4, eff. June
16, 1995; Acts 1997, 75th Leg., ch. 1086, Sec. 38, eff. June 19,
1997; Acts 2003, 78th Leg., ch. 35, Sec. 10, eff. Jan. 1, 2004.
Sec. 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 Subchapter D or E, Chapter 46B, 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.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 2003, 78th Leg., ch. 35, Sec. 11, eff. Jan.
1, 2004.
Sec. 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.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 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.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 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.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 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.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1995, 74th Leg., ch. 623, Sec. 1, eff. Aug.
28, 1995.
Sec. 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.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1997, 75th Leg., ch. 744, Sec. 1, eff.
Sept. 1, 1997.
Sec. 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).
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1995, 74th Leg., ch. 770, Sec. 5, eff. June
16, 1995.
Sec. 574.0085. ASSOCIATE JUDGES. (a) The county judge may
appoint a full-time or a part-time associate judge 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 an associate judge.
(b) To be eligible for appointment as an associate judge, 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) An associate judge shall be paid as determined by the
commissioners court of the county in which the associate judge
serves. If an associate judge serves in more than one county,
the associate judge shall be paid as determined by agreement of
the commissioners courts of the counties in which the associate
judge serves. The associate judge may be paid from county funds
available for payment of officers' salaries.
(d) An associate judge who serves a single court serves at the
will of the judge of that court. The services of an associate
judge who serves more than two courts may be terminated by a
majority vote of all the judges of the courts the associate judge
serves. The services of an associate judge who serves two courts
may be terminated by either of the judges of the courts the
associate judge serves.
(e) To refer cases to an associate judge, the referring court
must issue an order of referral. The order of referral may limit
the power or duties of an associate judge.
(f) Except as limited by an order of referral, an associate
judge appointed under this section has all the powers and duties
set forth in Section 201.007, Family Code.
(g) A bailiff may attend a hearing held by an associate judge if
directed by the referring court.
(h) A witness appearing before an associate judge 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 an associate judge after being summoned
or whose refusal to answer questions has been certified to the
court.
(i) At the conclusion of any hearing conducted by an associate
judge and on the preparation of an associate judge's report, the
associate judge shall transmit to the referring court all papers
relating to the case, with the associate judge's signed and dated
report. After the associate judge's report has been signed, the
associate judge shall give to the parties participating in the
hearing notice of the substance of the report. The associate
judge's report may contain the associate judge's findings,
conclusions, or recommendations. The associate judge'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 associate judge's report is filed, the referring court
may adopt, approve, or reject the associate judge'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 associate judge
shall refer the entire matter back to the referring court for
trial.
(k) An associate judge appointed under this section has the
judicial immunity of a county judge.
(l) An associate judge appointed in accordance with this section
shall comply with the Code of Judicial Conduct in the same manner
as the county judge.
Added by Acts 1993, 73rd Leg., ch. 107, Sec. 6.47, eff. Aug. 30,
1993. Amended by Acts 1995, 74th Leg., ch. 770, Sec. 6, eff. June
16, 1995; Acts 1997, 75th Leg., ch. 165, Sec. 7.45, eff. Sept. 1,
1997.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
334, Sec. 3, eff. September 1, 2009.
Sec. 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 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.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1993, 73rd Leg., ch. 107, Sec. 6.48, eff.
Aug. 30, 1993.
Sec. 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.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 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.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1997, 75th Leg., ch. 744, Sec. 2, eff.
Sept. 1, 1997.
Sec. 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.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1997, 75th Leg., ch. 744, Sec. 3, eff.
Sept. 1, 1997; Acts 2001, 77th Leg., ch. 367, Sec. 8, eff. Sept.
1, 2001.
Sec. 574.013. LIBERTY PENDING HEARING. 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.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 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.
Added by Acts 1997, 75th Leg., ch. 744, Sec. 4, eff. Sept. 1,
1997.
SUBCHAPTER B. PROTECTIVE CUSTODY
Sec. 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 third 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.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 2001, 77th Leg., ch. 1278, Sec. 1, eff.
June 15, 2001.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
202, Sec. 2, eff. September 1, 2007.
Sec. 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.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 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.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1999, 76th Leg., ch. 1512, Sec. 4, eff.
Sept. 1, 1999; Acts 2001, 77th Leg., ch. 367, Sec. 9, eff. Sept.
1, 2001.
Sec. 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.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 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 an associate judge
appointed by the presiding judge. Notwithstanding any other law
or requirement, an associate judge appointed to conduct a hearing
under this section may practice law in the court the associate
judge serves. The associate judge 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 associate judge 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.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1995, 74th Leg., ch. 101, Sec. 1, eff. May
16, 1995.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
334, Sec. 4, eff. September 1, 2009.
Sec. 574.026. ORDER FOR CONTINUED DETENTION. (a) The
magistrate or associate judge shall order that a proposed patient
remain in protective custody if the magistrate or associate judge
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 associate judge 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
(other evidence considered)
this evidence, I find that 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)
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. 5, eff. September 1, 2009.
Sec. 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, Sec. 19, eff.
Sept. 1, 2001.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 2001, 77th Leg., ch. 367, Sec. 10, 19, eff.
Sept. 1, 2001.
Sec. 574.028. RELEASE FROM DETENTION. (a) The magistrate or
associate judge shall order the release of a person under a
protective custody order if the magistrate or associate judge
determines after the hearing under Section 574.025 that no
probable cause exists to believe that the proposed patient
presents a substantial risk of serious harm to 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.
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. 6, eff. September 1, 2009.
SUBCHAPTER C. PROCEEDINGS FOR COURT-ORDERED MENTAL HEALTH
SERVICES
Sec. 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 proposed patient's attorney
may waive this right.
(d) The hearing must be open to the public unless the proposed
patient or the proposed patient's attorney requests that the
hearing be closed and the judge determines that there is good
cause to close the hearing.
(e) The Texas Rules of Evidence apply to the hearing unless the
rules are inconsistent with this subtitle.
(f) The court may consider the testimony of a nonphysician
mental health professional in addition to medical or psychiatric
testimony.
(g) The hearing is on the record, and the state must prove each
element of the applicable criteria by clear and convincing
evidence.
(h) A judge who holds a hearing under this section in hospitals
or locations other than the county courthouse is entitled to be
reimbursed for the judge's reasonable and necessary expenses
related to holding a hearing at that location. The judge shall
furnish the presiding judge of the statutory probate courts or
the presiding judge of the administrative region, as appropriate,
an accounting of the expenses for certification. The presiding
judge shall provide a certification of expenses approved to the
county judge responsible for payment of costs under Section
571.018.
(i) A judge who holds hearings at locations other than the
county courthouse also may receive a reasonable salary supplement
in an amount set by the commissioners court.
(j) Notwithstanding other law, a judge who holds a hearing under
this section may assess for the judge's services a fee in an
amount not to exceed $50 as a court cost against the county
responsible for the payment of the costs of the hearing under
Section 571.018.
(k) Notwithstanding other law, a judge who holds a hearing under
this section may assess for the services of a prosecuting
attorney a fee in an amount not to exceed $50 as a court cost
against the county responsible for the payment of the costs of
the hearing under Section 571.018. For a mental health
proceeding, the fee assessed under this subsection includes costs
incurred for the preparation of documents related to the
proceeding. The court may award as court costs fees for other
costs of a mental health proceeding against the county
responsible for the payment of the costs of the hearing under
Section 571.018.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1997, 75th Leg., ch. 1354, Sec. 1, eff.
Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1252, Sec. 1, eff. Sept.
1, 2001; Acts 2001, 77th Leg., ch. 1420, Sec. 10.006, eff. Sept.
1, 2001.
Sec. 574.032. RIGHT TO JURY. (a) A hearing for temporary
mental health services must be before the court unless the
proposed patient or the proposed patient's attorney requests a
jury.
(b) A hearing for extended mental health services must be before
a jury unless the proposed patient or the proposed patient's
attorney waives the right to a jury.
(c) A waiver of the right to a jury must be in writing, under
oath, and signed and sworn to by the proposed patient and the
proposed patient's attorney unless the proposed patient or the
attorney orally waives the right to a jury in the court's
presence.
(d) The court may permit an oral or written waiver of the right
to a jury to be withdrawn for good cause shown. The withdrawal
must be made not later than the eighth day before the date on
which the hearing is scheduled.
(e) A court may not require a jury fee.
(f) In a hearing before a jury, the jury shall determine if the
proposed patient is mentally ill and meets the criteria for
court-ordered mental health services. The jury may not make a
finding about the type of services to be provided to the proposed
patient.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 574.033. RELEASE AFTER HEARING. (a) The court shall enter
an order denying an application for court-ordered temporary or
extended mental health services if after a hearing the court or
jury fails to find, from clear and convincing evidence, that the
proposed patient is mentally ill and meets the applicable
criteria for court-ordered mental health services.
(b) If the court denies the application, the court 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.
Sec. 574.034. ORDER FOR TEMPORARY MENTAL HEALTH SERVICES. (a)
The judge may order a proposed patient to receive court-ordered
temporary inpatient mental health services only if the judge or
jury finds, from clear and convincing evidence, that:
(1) the proposed patient is mentally ill; and
(2) as a result of that mental illness the proposed patient:
(A) is likely to cause serious harm to himself;
(B) is likely to cause serious harm to others; or
(C) is:
(i) suffering severe and abnormal mental, emotional, or physical
distress;
(ii) experiencing substantial mental or physical deterioration
of the proposed patient's 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) unable to make a rational and informed decision as to
whether or not to submit to treatment.
(b) The judge may order a proposed patient to receive
court-ordered temporary outpatient mental health services only
if:
(1) the judge finds that appropriate mental health services are
available to the patient; and
(2) the judge or jury finds, from clear and convincing evidence,
that:
(A) the proposed patient is mentally ill;
(B) the nature of the mental illness is severe and persistent;
(C) as a result of the mental illness, the proposed patient
will, if not treated, continue to:
(i) suffer severe and abnormal mental, emotional, or physical
distress; and
(ii) experience deterioration of the ability to function
independently to the extent that the proposed patient will be
unable to live safely in the community without court-ordered
outpatient mental health services; and
(D) the proposed patient has an inability to participate in
outpatient treatment services effectively and voluntarily,
demonstrated by:
(i) any of the proposed patient's actions occurring within the
two-year period which immediately precedes the hearing; or
(ii) specific characteristics of the proposed patient's clinical
condition that make impossible a rational and informed decision
whether to submit to voluntary outpatient treatment.
(c) If the judge or jury finds that the proposed patient meets
the commitment criteria prescribed by Subsection (a), the judge
or jury must specify which criterion listed in Subsection (a)(2)
forms the basis for the decision.
(d) To be clear and convincing under Subsection (a), the
evidence must include expert testimony and, unless waived,
evidence of a recent overt act or a continuing pattern of
behavior that tends to confirm:
(1) the likelihood of serious harm to the proposed patient or
others; or
(2) the proposed patient's distress and the deterioration of the
proposed patient's ability to function.
(e) To be clear and convincing under Subdivision (b)(2), the
evidence must include expert testimony and, unless waived,
evidence of a recent overt act or a continuing pattern of
behavior that tends to confirm:
(1) the proposed patient's distress;
(2) the deterioration of ability to function independently to
the extent that the proposed patient will be unable to live
safely in the community; and
(3) the proposed patient's inability to participate in
outpatient treatment services effectively and voluntarily.
(f) The proposed patient and the proposed patient's attorney, by
a written document filed with the court, may waive the right to
cross-examine witnesses, and, if that right is waived, the court
may admit, as evidence, the certificates of medical examination
for mental illness. The certificates admitted under this
subsection constitute competent medical or psychiatric testimony,
and the court may make its findings solely from the certificates.
If the proposed patient and the proposed patient's attorney do
not waive in writing the right to cross-examine witnesses, the
court shall proceed to hear testimony. The testimony must include
competent medical or psychiatric testimony. In addition, the
court may consider the testimony of a nonphysician mental health
professional as provided by Section 574.031(f).
(g) An order for temporary inpatient or outpatient mental health
services shall state that treatment is authorized for not longer
than 90 days. The order may not specify a shorter period.
(h) A judge may not issue an order for temporary inpatient or
outpatient mental health services for a proposed patient who is
charged with a criminal offense that involves an act, attempt, or
threat of serious bodily injury to another person.
(i) A judge may advise, but may not compel, the proposed patient
to:
(1) receive treatment with psychoactive medication as specified
by the outpatient mental health services treatment plan;
(2) participate in counseling; and
(3) refrain from the use of alcohol or illicit drugs.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1993, 73rd Leg., ch. 107, Sec. 6.49, eff.
Aug. 30, 1993; Acts 1995, 74th Leg., ch. 770, Sec. 7, eff. June
16, 1995; Acts 1997, 75th Leg., ch. 744, Sec. 5, eff. Sept. 1,
1997.
Sec. 574.035. ORDER FOR EXTENDED MENTAL HEALTH SERVICES. (a)
The judge may order a proposed patient to receive court-ordered
extended inpatient mental health services only if the jury, or
the judge if the right to a jury is waived, finds, from clear and
convincing evidence, that:
(1) the proposed patient is mentally ill;
(2) as a result of that mental illness the proposed patient:
(A) is likely to cause serious harm to himself;
(B) is likely to cause serious harm to others; or
(C) is:
(i) suffering severe and abnormal mental, emotional, or physical
distress;
(ii) experiencing substantial mental or physical deterioration
of the proposed patient's 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) unable to make a rational and informed decision as to
whether or not to submit to treatment;
(3) the proposed patient's condition is expected to continue for
more than 90 days; and
(4) the proposed patient has received court-ordered inpatient
mental health services under this subtitle or under Chapter 46B,
Code of Criminal Procedure, for at least 60 consecutive days
during the preceding 12 months.
(b) The judge may order a proposed patient to receive
court-ordered extended outpatient mental health services only if:
(1) the judge finds that appropriate mental health services are
available to the patient; and
(2) the jury, or the judge if the right to a jury is waived,
finds from clear and convincing evidence that:
(A) the proposed patient is mentally ill;
(B) the nature of the mental illness is severe and persistent;
(C) as a result of the mental illness, the proposed patient
will, if not treated, continue to:
(i) suffer severe and abnormal mental, emotional, or physical
distress; and
(ii) experience deterioration of the ability to function
independently to the extent that the proposed patient will be
unable to live safely in the community without court-ordered
outpatient mental health services;
(D) the proposed patient has an inability to participate in
outpatient treatment services effectively and voluntarily,
demonstrated by:
(i) any of the proposed patient's actions occurring within the
two-year period which immediately precedes the hearing; or
(ii) specific characteristics of the proposed patient's clinical
condition that make impossible a rational and informed decision
whether to submit to voluntary outpatient treatment;
(E) the proposed patient's condition is expected to continue for
more than 90 days; and
(F) the proposed patient has received court-ordered inpatient
mental health services under this subtitle or under Subchapter D
or E, Chapter 46B, Code of Criminal Procedure, for at least 60
consecutive days during the preceding 12 months.
(c) If the jury or judge finds that the proposed patient meets
the commitment criteria prescribed by Subsection (a), the jury or
judge must specify which criterion listed in Subsection (a)(2)
forms the basis for the decision.
(d) The jury or judge is not required to make the finding under
Subsection (a)(4) or (b)(2)(F) if the proposed patient has
already been subject to an order for extended mental health
services.
(e) To be clear and convincing under Subsection (a), the
evidence must include expert testimony and evidence of a recent
overt act or a continuing pattern of behavior that tends to
confirm:
(1) the likelihood of serious harm to the proposed patient or
others; or
(2) the proposed patient's distress and the deterioration of the
proposed patient's ability to function.
(f) To be clear and convincing under Subdivision (b)(2), the
evidence must include expert testimony and evidence of a recent
overt act or a continuing pattern of behavior that tends to
confirm:
(1) the proposed patient's distress;
(2) the deterioration of ability to function independently to
the extent that the proposed patient will be unable to live
safely in the community; and
(3) the proposed patient's inability to participate in
outpatient treatment services effectively and voluntarily.
(g) The court may not make its findings solely from the
certificates of medical examination for mental illness but shall
hear testimony. The court may not enter an order for extended
mental health services unless appropriate findings are made and
are supported by testimony taken at the hearing. The testimony
must include competent medical or psychiatric testimony.
(h) An order for extended inpatient or outpatient mental health
services shall state that treatment is authorized for not longer
than 12 months. The order may not specify a shorter period.
(i) A judge may not issue an order for extended inpatient or
outpatient mental health services for a proposed patient who is
charged with a criminal offense that involves an act, attempt, or
threat of serious bodily injury to another person.
(j) A judge may advise, but may not compel, the proposed patient
to:
(1) receive treatment with psychoactive medication as specified
by the outpatient mental health services treatment plan;
(2) participate in counseling; and
(3) refrain from the use of alcohol or illicit drugs.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1995, 74th Leg., ch. 770, Sec. 8, eff. June
16, 1995; Acts 1997, 75th Leg., ch. 312, Sec. 5, eff. Sept. 1,
1997; Acts 1997, 75th Leg., ch. 744, Sec. 6, eff. Sept. 1, 1997;
Acts 1999, 76th Leg., ch. 238, Sec. 1, eff. May 28, 1999; Acts
2003, 78th Leg., ch. 35, Sec. 12, eff. Jan. 1, 2004.
Sec. 574.036. ORDER OF CARE OR COMMITMENT. (a) The judge shall
dismiss the jury, if any, after a hearing in which a person is
found to be mentally ill and to meet the criteria for
court-ordered temporary or extended mental health services.
(b) The judge may hear additional evidence relating to
alternative settings for care before entering an order relating
to the setting for the care the person will receive.
(c) The judge shall consider in determining the setting for care
the recommendation for the most appropriate treatment alternative
filed under Section 574.012.
(d) The judge shall order the mental health services provided in
the least restrictive appropriate setting available.
(e) The judge may enter an order:
(1) committing the person to a mental health facility for
inpatient care if the trier of fact finds that the person meets
the commitment criteria prescribed by Section 574.034(a) or
574.035(a); or
(2) committing the person to outpatient mental health services
if the trier of fact finds that the person meets the commitment
criteria prescribed by Section 574.034(b) or 574.035(b).
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1997, 75th Leg., ch. 744, Sec. 7, eff.
Sept. 1, 1997.
Sec. 574.037. COURT-ORDERED OUTPATIENT SERVICES. (a) The
court, in an order that directs a patient to participate in
outpatient mental health services, shall identify a person who is
responsible for those services. The person identified must be the
facility administrator or an individual involved in providing
court-ordered outpatient services. A person may not be designated
as responsible for the ordered services without the person's
consent unless the person is the facility administrator of a
department facility or the facility administrator of a community
center that provides mental health services in the region in
which the committing court is located.
(b) The person responsible for the services shall submit to the
court within two weeks after the court enters the order a general
program of the treatment to be provided. The program must be
incorporated into the court order.
(c) The person responsible for the services shall inform the
court of:
(1) the patient's failure to comply with the court order; and
(2) any substantial change in the general program of treatment
that occurs before the order expires.
(d) A facility must comply with this section to the extent that
the commissioner determines that the designated mental health
facility has sufficient resources to perform the necessary
services.
(e) A patient may not be detained in a private mental health
facility without the consent of the facility administrator.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
SUBCHAPTER D. DESIGNATION OF FACILITY AND TRANSPORTATION OF
PATIENT
Sec. 574.041. DESIGNATION OF FACILITY. (a) In an order for
temporary or extended mental health services specifying inpatient
care, the court shall commit the patient to a designated
inpatient mental health facility. The court shall commit the
patient to:
(1) a mental health facility deemed suitable by the local mental
health authority for the area;
(2) a private mental hospital under Section 574.042;
(3) a hospital operated by a federal agency under Section
574.043; or
(4) an inpatient mental health facility of the Texas Department
of Criminal Justice under Section 574.044.
(b) On request of the local mental health authority, the judge
may commit the patient directly to an inpatient mental health
facility operated by the department.
(c) A court may not commit a patient to an inpatient mental
health facility operated by a community center or other entity
designated by the department to provide mental health services
unless the facility is licensed under Chapter 577 and the court
notifies the local mental health authority serving the region in
which the commitment is made.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1999, 76th Leg., ch. 543, Sec. 3, eff. June
18, 1999; Acts 2001, 77th Leg., ch. 367, Sec. 11, eff. Sept. 1,
2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
87, Sec. 25.108, eff. September 1, 2009.
Sec. 574.0415. 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.
Added by Acts 1993, 73rd Leg., ch. 903, Sec. 1.05, eff. May 1,
1994. Amended by Acts 1997, 75th Leg., ch. 337, Sec. 3, eff. May
27, 1997.
Sec. 574.042. COMMITMENT TO PRIVATE FACILITY. The court may
order a patient committed to a private mental hospital at no
expense to the state if the court receives:
(1) an application signed by the patient or the pat