CHAPTER 591. GENERAL PROVISIONS
HEALTH AND SAFETY CODE
TITLE 7. MENTAL HEALTH AND MENTAL RETARDATION
SUBTITLE D. PERSONS WITH MENTAL RETARDATION ACT
CHAPTER 591. GENERAL PROVISIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 591.001. SHORT TITLE. This subtitle may be cited as the
Persons with Mental Retardation Act.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 591.002. PURPOSE. (a) It is the public policy of this
state that persons with mental retardation have the opportunity
to develop to the fullest extent possible their potential for
becoming productive members of society.
(b) It is the purpose of this subtitle to provide and assure a
continuum of quality services to meet the needs of all persons
with mental retardation in this state.
(c) The state's responsibility to persons with mental
retardation does not replace or impede parental rights and
responsibilities or terminate the activities of persons, groups,
or associations that advocate for and assist persons with mental
retardation.
(d) It is desirable to preserve and promote living at home if
feasible. If living at home is not possible and placement in a
residential facility for persons with mental retardation is
necessary, a person must be admitted in accordance with basic due
process requirements, giving appropriate consideration to
parental desires if possible. The person must be admitted to a
facility that provides habilitative training for the person's
condition, that fosters the personal development of the person,
and that enhances the person's ability to cope with the
environment.
(e) Because persons with mental retardation have been denied
rights solely because of their retardation, the general public
should be educated to the fact that persons with mental
retardation who have not been adjudicated incompetent and for
whom a guardian has not been appointed by a due process
proceeding in a court have the same rights and responsibilities
enjoyed by all citizens of this state. All citizens are urged to
assist persons with mental retardation in acquiring and
maintaining rights and in participating in community life as
fully as possible.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 591.003. DEFINITIONS. In this subtitle:
(1) "Adaptive behavior" means the effectiveness with or degree
to which a person meets the standards of personal independence
and social responsibility expected of the person's age and
cultural group.
(2) "Board" means the Texas Board of Mental Health and Mental
Retardation.
(3) "Care" means the life support and maintenance services or
other aid provided to a person with mental retardation, including
dental, medical, and nursing care and similar services.
(4) "Client" means a person receiving mental retardation
services from the department or a community center.
(5) "Commissioner" means the commissioner of mental health and
mental retardation.
(6) "Community center" means an entity organized under
Subchapter A, Chapter 534, that provides mental retardation
services.
(7) "Department" means the Texas Department of Mental Health and
Mental Retardation.
(8) "Interdisciplinary team" means a group of mental retardation
professionals and paraprofessionals who assess the treatment,
training, and habilitation needs of a person with mental
retardation and make recommendations for services for that
person.
(9) "Director" means the director of a community center.
(10) "Group home" means a residential arrangement, other than a
residential care facility, operated by the department or a
community center in which not more than 15 persons with mental
retardation voluntarily live and under appropriate supervision
may share responsibilities for operation of the living unit.
(11) "Guardian" means the person who, under court order, is the
guardian of the person of another or of the estate of another.
(12) "Habilitation" means the process, including programs of
formal structured education and training, by which a person is
assisted in acquiring and maintaining life skills that enable the
person to cope more effectively with the person's personal and
environmental demands and to raise the person's physical, mental,
and social efficiency.
(13) "Mental retardation" means significantly subaverage general
intellectual functioning that is concurrent with deficits in
adaptive behavior and originates during the developmental period.
(14) "Mental retardation services" means programs and assistance
for persons with mental retardation that may include a
determination of mental retardation, interdisciplinary team
recommendations, education, special training, supervision, care,
treatment, rehabilitation, residential care, and counseling, but
does not include those services or programs that have been
explicitly delegated by law to other state agencies.
(15) "Minor" means a person younger than 18 years of age who:
(A) is not and has not been married; or
(B) has not had the person's disabilities of minority removed
for general purposes.
(16) "Person with mental retardation" means a person determined
by a physician or psychologist licensed in this state or
certified by the department to have subaverage general
intellectual functioning with deficits in adaptive behavior.
(17) "Resident" means a person living in and receiving services
from a residential care facility.
(18) "Residential care facility" means a facility operated by
the department or a community center that provides 24-hour
services, including domiciliary services, directed toward
enhancing the health, welfare, and development of persons with
mental retardation.
(19) "Service provider" means a person who provides mental
retardation services.
(20) "Subaverage general intellectual functioning" refers to
measured intelligence on standardized psychometric instruments of
two or more standard deviations below the age-group mean for the
tests used.
(21) "Superintendent" means the individual in charge of a
residential care facility.
(22) "Training" means the process by which a person with mental
retardation is habilitated and may include the teaching of life
and work skills.
(23) "Treatment" means the process by which a service provider
attempts to ameliorate the condition of a person with mental
retardation.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1993, 73rd Leg., ch. 60, Sec. 1, eff. Sept.
1, 1993.
Sec. 591.004. RULES. The board by rule shall ensure the
implementation of this subtitle.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 591.005. LEAST RESTRICTIVE ALTERNATIVE. The least
restrictive alternative is:
(1) the available program or facility that is the least
confining for a client's condition; and
(2) the service and treatment that is provided in the least
intrusive manner reasonably and humanely appropriate to the
person's needs.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 591.006. CONSENT. (a) Consent given by a person is
legally adequate if the person:
(1) is not a minor and has not been adjudicated incompetent to
manage the person's personal affairs by an appropriate court of
law;
(2) understands the information; and
(3) consents voluntarily, free from coercion or undue influence.
(b) The person giving the consent must be informed of and
understand:
(1) the nature, purpose, consequences, risks, and benefits of
and alternatives to the procedure;
(2) that the withdrawal or refusal of consent will not prejudice
the future provision of care and services; and
(3) the method used in the proposed procedure if the person is
to receive unusual or hazardous treatment procedures,
experimental research, organ transplantation, or nontherapeutic
surgery.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
SUBCHAPTER B. DUTIES OF DEPARTMENT
Sec. 591.011. DEPARTMENT RESPONSIBILITIES. (a) The department
shall make all reasonable efforts consistent with available
resources to:
(1) assure that each identified person with mental retardation
who needs mental retardation services is given while these
services are needed quality care, treatment, education, training,
and rehabilitation appropriate to the person's individual needs
other than those services or programs explicitly delegated by law
to other governmental agencies;
(2) initiate, carry out, and evaluate procedures to guarantee to
persons with mental retardation the rights listed in this
subtitle;
(3) carry out this subtitle, including planning, initiating,
coordinating, promoting, and evaluating all programs developed;
(4) provide either directly or by cooperation, negotiation, or
contract with other agencies and those persons and groups listed
in Section 533.034, a continuum of services to persons with
mental retardation; and
(5) provide, either directly or by contract with other agencies,
a continuum of services to children, juveniles, or adults with
mental retardation committed into the department's custody by the
juvenile or criminal courts.
(b) The services provided by the department under Subsection
(a)(4) shall include:
(1) treatment and care;
(2) education and training, including sheltered workshop
programs;
(3) counseling and guidance; and
(4) development of residential and other facilities to enable
persons with mental retardation to live and be habilitated in the
community.
(c) The facilities provided under Subsection (b) shall include
group homes, foster homes, halfway houses, and day-care
facilities for persons with mental retardation to which the
department has assigned persons with mental retardation.
(d) The department shall exercise periodic and continuing
supervision over the quality of services provided under this
section.
(e) The department shall have the right of access to all
residents and records of residents who are placed with
residential service providers.
(f) The department's responsibilities under this subtitle are in
addition to all other responsibilities and duties of the
department under other law.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991. Amended by Acts 1993, 73rd Leg., ch. 646, Sec. 13, eff.
Aug. 30, 1993.
Sec. 591.012. COOPERATION WITH OTHER AGENCIES. Each agency
authorized to provide education, support, related services,
rehabilitation, and other services shall cooperate with the
department under this subtitle to the extent cooperation is
consistent with the agency's functions and authority.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 591.013. LONG-RANGE PLAN. (a) The department and the
Texas Department of Human Services shall jointly develop a
long-range plan for services to persons with developmental
disabilities, including mental retardation.
(b) The commissioner of each department shall appoint the
necessary staff to develop the plan through research of
appropriate topics and public hearings to obtain testimony from
persons with knowledge of or interest in state services to
persons with developmental disabilities, including mental
retardation.
(c) In developing the plan, the department shall consider
existing plans or studies made by the departments.
(d) The plan must address at least the following topics:
(1) the needs of persons with developmental disabilities,
including mental retardation;
(2) how state services should be structured to meet those needs;
(3) how the ICF-MR program, the waiver program under Section
1915(c), federal Social Security Act, other programs under Title
XIX, federal Social Security Act, and other federally funded
programs can best be structured and financed to assist the state
in delivering services to persons with developmental
disabilities, including mental retardation;
(4) the statutory limits and rule or policy changes necessary to
ensure the controlled growth of the programs under Title XIX,
federal Social Security Act and other federally funded programs;
(5) methods for expanding services available through the ICF-MR
program to persons with related conditions as defined by federal
regulations relating to the medical assistance program; and
(6) the cost of implementing the plan.
(e) The departments shall, if necessary, modify their respective
long-range plans and other existing plans relating to the
provision of services to persons with developmental disabilities,
including mental retardation, to incorporate the provisions of
the joint plan.
(f) The departments shall review and revise the plan biennially.
Each department shall consider the most recent revision of the
plan in any modifications of that department's long-range plans
and in each future budget request.
(g) This section does not affect the authority of the department
and the Texas Department of Human Services to carry out their
separate functions as established by state and federal law.
(h) In this section, "ICF-MR program" means the medical
assistance program serving persons with mental retardation who
receive care in intermediate care facilities.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
SUBCHAPTER C. PENALTIES AND REMEDIES
Sec. 591.021. CRIMINAL PENALTY. (a) A person commits an
offense if the person intentionally or knowingly causes,
conspires with another to cause, or assists another to cause the
unlawful continued detention in or unlawful admission or
commitment of a person to a facility specified in this subtitle
with the intention of harming that person.
(b) An offense under this section is a Class B misdemeanor.
(c) The district and county attorney within their respective
jurisdictions shall prosecute a violation of this section.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 591.022. CIVIL PENALTY. (a) A person who intentionally
violates the rights guaranteed by this subtitle to a person with
mental retardation is liable to the person injured by the
violation in an amount of not less than $100 or more than $5,000.
(b) A person who recklessly violates the rights guaranteed by
this subtitle to a person with mental retardation is liable to
the person injured by the violation in an amount of not less than
$100 or more than $1,000.
(c) A person who intentionally releases confidential information
or records of a person with mental retardation in violation of
law is liable to the person injured by the unlawful disclosure
for $1,000 or three times the actual damages, whichever is
greater.
(d) A cause of action under this section may be filed by:
(1) the injured person;
(2) the injured person's parent, if the person is a minor;
(3) a guardian, if the person has been adjudicated incompetent;
or
(4) the injured person's next friend in accordance with Rule 44,
Texas Rules of Civil Procedure.
(e) The cause of action may be filed in a district court in
Travis County or in the county in which the defendant resides.
(f) This section does not supersede or abrogate other remedies
existing in law.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 591.023. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) A district
court, in an action brought in the name of the state by the state
attorney general or a district or county attorney within the
attorney's respective jurisdiction, may issue a temporary
restraining order, a temporary injunction, or a permanent
injunction to:
(1) restrain and prevent a person from violating this subtitle
or a rule adopted by the department under this subtitle; or
(2) enforce compliance with this subtitle or a rule adopted by
the department under this subtitle.
(b) A person who violates the terms of an injunction issued
under this section shall forfeit and pay to the state a civil
penalty of not more than $5,000 for each violation, but not to
exceed a total of $20,000.
(c) In determining whether an injunction has been violated, the
court shall consider the maintenance of procedures adopted to
ensure compliance with the injunction.
(d) The state attorney general or the district or county
attorney, acting in the name of the state, may petition the court
issuing the injunction for recovery of civil penalties under this
section.
(e) A civil penalty recovered under this section shall be paid
to the state for use in mental retardation services.
(f) An action filed under this section may be brought in a
district court in Travis County or in the county in which the
defendant resides.
(g) This section does not supersede or abrogate other remedies
existing at law.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 591.024. CIVIL ACTION AGAINST DEPARTMENT EMPLOYEE. (a)
The state attorney general shall provide legal counsel to
represent a department employee in a civil action brought against
the person under this subtitle for a claim of alleged negligence
or other act of the person while employed by the department. The
person shall cooperate fully with the state attorney general in
the defense of the claim, demand, or suit.
(b) The state shall hold harmless and indemnify the person
against financial loss arising out of a claim, demand, suit, or
judgment by reason of the negligence or other act by the person,
if:
(1) at the time the claim arose or damages were sustained, the
person was acting in the scope of the person's authorized duties;
and
(2) the claim or cause of action or damages sustained did not
result from an intentional and wrongful act or the person's
reckless conduct.
(c) To be eligible for assistance under this section, the person
must deliver to the department the original or a copy of the
summons, complaint, process, notice, demand, or pleading not
later than the 10th day after the date on which the person is
served with the document. The state attorney general may assume
control of the person's representation on delivery of the
document or a copy of the document to the department.
(d) This section does not impair, limit, or modify rights and
obligations existing under an insurance policy.
(e) This section applies only to a person named in this section
and does not affect the rights of any other person.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.
Sec. 591.025. LIABILITY. An officer or employee of the
department or a community center, acting reasonably within the
scope of the person's employment and in good faith, is not
civilly or criminally liable under this subtitle.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1,
1991.