84R5076 SCL-D
By: Nelson S.B. No. 355
A BILL TO BE ENTITLED
AN ACT
relating to control measures for an individual exposed to a
communicable disease.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 81.083(e) and (m), Health and Safety
Code, are amended to read as follows:
(e) An individual may be subject to detention under Section
81.0891 and court orders under Subchapter G if the individual is
infected or is reasonably suspected of being exposed to or infected
with a communicable disease that presents an immediate threat to
the public health and:
(1) the individual, or the individual's parent, legal
guardian, or managing conservator if the individual is a minor,
does not comply with the written orders of the department or a
health authority under this section; or
(2) a public health disaster exists, regardless of
whether the department or health authority has issued a written
order and the individual has indicated that the individual will not
voluntarily comply with control measures.
(m) A peace officer, including a sheriff or constable, may
use reasonable force to:
(1) secure an individual subject to an order issued
under Subsection (b) or the members of a group subject to an order
issued under Subsection (k); and
(2) except as directed by the department or health
authority, prevent:
(A) an individual subject to an order issued
under this section from leaving a facility or location designated
in the order; or
(B) the members of a group subject to an order
issued under Subsection (k) from leaving the group or other
individuals from joining the group.
SECTION 2. Subchapter E, Chapter 81, Health and Safety
Code, is amended by adding Sections 81.0891, 81.0892, 81.0893,
81.0894, and 81.0895 to read as follows:
Sec. 81.0891. APPREHENSION BY PEACE OFFICER WITHOUT
WARRANT. (a) A peace officer, without a warrant, may take an
individual who is the subject of a control order issued under
Section 81.083 into custody if the officer has reason to believe and
does believe that:
(1) the individual, or for a minor individual the
individual's parent, legal guardian, or managing conservator, is
not complying with the written orders of the department or a health
authority under Section 81.083;
(2) the individual has or has been exposed to a
communicable disease; and
(3) as a result of that communicable disease, there is
a substantial risk of serious harm to others unless the individual
is immediately detained.
(b) A substantial risk of serious harm to others under
Subsection (a)(3) may be demonstrated by:
(1) the individual's violation of a control order
issued under Section 81.083, including a failure to remain at a
facility or location designated in the order;
(2) evidence of illness and deterioration of the
individual's physical condition to the extent that the individual
cannot remain at liberty; or
(3) information provided to the peace officer by the
department or a health authority that issued a control order under
Section 81.083.
(c) A peace officer may form the belief that an individual
meets the criteria described by Subsection (a):
(1) on information and belief from a credible person,
including the department or a health authority that issued a
control order under Section 81.083;
(2) through observation of the individual's conduct;
or
(3) by the circumstances under which the individual is
apprehended.
(d) A peace officer who takes an individual into custody
under Subsection (a) shall immediately transport the individual to:
(1) the nearest appropriate health facility; or
(2) a location considered suitable by the department
or health authority that issued a control order under Section
81.083.
(e) A nonmedical facility used to detain individuals who are
charged with or convicted of a crime may be considered suitable
under Subsection (d)(2) only if no other appropriate facility is
available. If an individual is detained in a jail or a similar
detention facility under this subsection, the detained individual
must be isolated from any individual who is charged with or
convicted of a crime. The department or a health authority that
issued a control order under Section 81.083 shall ensure that
proper isolation methods are used and medical care is made
available to the individual.
(f) A peace officer who takes an individual into custody
under Subsection (a) shall immediately inform the individual orally
in simple, nontechnical terms:
(1) of the reason for the detention; and
(2) that not later than the 24th hour after the time
the person is apprehended under this section, the individual will
be informed of the individual's rights under Section 81.0895 by a
staff member of:
(A) the health facility where the individual is
detained; or
(B) the department or a health authority that
issued a control order under Section 81.083 for an individual
detained at a location designated by the department or health
authority.
Sec. 81.0892. PEACE OFFICER'S NOTIFICATION OF DETENTION.
(a) After transporting an individual to a facility or location, a
peace officer shall immediately file a notification of detention
described by this section with:
(1) a health facility and the department or health
authority that issued a control order under Section 81.083 for an
individual detained in the health facility; or
(2) the department or health authority that issued a
control order under Section 81.083 for an individual detained in a
location designated by the department or health authority.
(b) The notification of detention must contain:
(1) a statement that the peace officer has reason to
believe and does believe that the individual is the subject of a
control order under Section 81.083;
(2) a statement that the peace officer has reason to
believe and does believe that the individual poses a substantial
risk of serious harm to others;
(3) a specific description of the risk of harm;
(4) a statement that the peace officer has reason to
believe and does believe that the risk of harm is imminent unless
the individual is immediately detained;
(5) a statement that the peace officer's beliefs are
derived from specific recent behavior, overt acts, attempts,
statements, or threats that were observed by or reliably reported
to the officer;
(6) a detailed description of the specific behavior,
acts, attempts, statements, or threats; and
(7) the name of the person who reported or observed the
behavior, acts, attempts, statements, or threats.
(c) If an individual is detained at a health facility, the
facility shall include in the individual's file the notification of
detention described by this section.
(d) A peace officer shall give the notification of detention
described by this section on the following form:
Notification-Communicable Disease Emergency Detention
NO. ____________________
DATE:_______________ TIME:_______________
THE STATE OF TEXAS
FOR THE BEST INTEREST AND PROTECTION OF:
______________________________________
NOTIFICATION OF COMMUNICABLE DISEASE EMERGENCY DETENTION
Now comes _____________________________, a peace officer with
_____________________________ (name of agency), of the State of
Texas, and states as follows:
1. I have reason to believe and do believe that
__________________________ (name of person to be detained) is the
subject of a control order issued under Section 81.083, Health and
Safety Code, and has either been exposed to a communicable disease
or evidences symptoms reasonably believed to be a communicable
disease.
2. I have reason to believe and do believe that the above-named
person evidences a substantial risk of serious harm to others based
on the following:
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
3. I have reason to believe and do believe that the above risk of
harm is imminent unless the above-named person is immediately
detained.
4. My beliefs are based on the following recent behavior, overt
acts, attempts, statements, or threats observed by me or reliably
reported to me:
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
5. The names and addresses of the persons who reported or observed
recent behavior, acts, attempts, statements, or threats of the
above-named person are (if applicable):
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
For the above reasons, I present this notification to
_________________________ (name of facility, health authority, or
department) for the detention of __________________________ (name
of person to be detained).
6. Was the person restrained in any way? Yes □ No □
_________________________ BADGE NO. _____________________
PEACE OFFICER'S SIGNATURE
Address: _________________________ Zip Code:____________________
Telephone: ______________________
The Department of State Health Services, a health authority,
or a health or detention facility may not require a peace officer to
execute any form other than this form as a requirement to accept for
temporary admission a person detained under Section 81.0891, Health
and Safety Code.
(e) The department, a health authority, a health facility,
or the owner or person in control of a location designated by the
department or health authority may not require a peace officer to
execute any form other than the form provided by Subsection (d) as a
requirement to accept for temporary admission an individual
detained under Section 81.0891.
Sec. 81.0893. ACCEPTANCE OF INDIVIDUAL. A health facility
or a person who owns or is in control of a location designated by the
department or health authority that issued a control order under
Section 81.083 shall accept an individual for whom a peace officer
files a notification of detention under Section 81.0892 until the
individual is required to be released under Section 81.0894.
Sec. 81.0894. RELEASE FROM TEMPORARY DETENTION. (a) An
individual apprehended under Section 81.0891 may be detained for a
period not to exceed 48 hours from the time the individual is
transported to a facility or location required under Section
81.0891(d) unless a written order for further custody or detention
is obtained under Subchapter G.
(b) If the 48-hour period described by Subsection (a) ends
on a Saturday, Sunday, or legal holiday, the individual may be
detained until the first succeeding business day. If the 48-hour
period ends at any other time, the individual may be detained only
until the day the 48-hour period ends.
(c) If extremely hazardous weather conditions exist or a
disaster occurs, the judge or magistrate of a court in which an
application for a court order for management of the individual is
filed may, by written order made each day, extend by an additional
24 hours the period during which the individual may be detained.
The written order must declare that an emergency exists because of
the weather or the occurrence of a disaster.
(d) An individual must be released in the manner provided by
Section 81.168(b).
Sec. 81.0895. RIGHTS OF DETAINED INDIVIDUALS. (a) An
individual apprehended or detained under this chapter has the right
to:
(1) be advised of the detention location, of the
reasons for the detention, and that the detention could result in a
longer period of court-ordered management;
(2) a reasonable opportunity to communicate with and
retain an attorney;
(3) be released from a facility as provided by Section
81.0894;
(4) be advised that communications with the
department, a health authority, or a health professional may be
used in proceedings for further detention; and
(5) a reasonable opportunity to communicate with a
relative or other responsible individual who has a proper interest
in the detained individual's welfare.
(b) Not later than the 24th hour after the time an
individual is admitted to or detained in a facility or a location
designated by the department or a health authority that issued a
control order under Section 81.083, the individual must be informed
of the rights provided by this subchapter:
(1) orally in simple, nontechnical terms, and in
writing that, if possible, is in the individual's primary language;
or
(2) through the use of a means reasonably calculated
to communicate with a hearing or visually impaired person, if
applicable.
(c) The executive commissioner of the Health and Human
Services Commission by rule shall prescribe the manner in which an
individual is informed of the individual's rights under this
subchapter.
SECTION 3. The heading to Subchapter G, Chapter 81, Health
and Safety Code, is amended to read as follows:
SUBCHAPTER G. COURT ORDERS FOR MANAGEMENT OF PERSONS EXPOSED TO OR
INFECTED WITH COMMUNICABLE DISEASES
SECTION 4. Section 81.151(e), Health and Safety Code, is
amended to read as follows:
(e) A single application may be filed for a group if:
(1) the department or health authority reasonably
suspects that a group of five or more persons has been exposed to or
infected with a communicable disease; and
(2) each person in the group meets the criteria of this
chapter for court orders for the management of a person exposed to
or infected with a communicable disease.
SECTION 5. Sections 81.152(a), (b), and (c), Health and
Safety Code, are amended to read as follows:
(a) An application for a court order for the management of a
person exposed to or infected with a communicable disease must be
styled using the person's initials and not the person's full name.
(b) The application must state whether the application is
for temporary or extended management of a person with or exposed to
a communicable disease.
(c) Any application must contain the following information
according to the applicant's information and belief:
(1) the person's name and address;
(2) the person's county of residence in this state;
(3) a statement that the person is infected with or is
reasonably suspected of having been exposed to or [being] infected
with a communicable disease that presents a threat to public health
and that the person meets the criteria of this chapter for court
orders for the management of a person with a communicable disease;
and
(4) a statement, to be included only in an application
for inpatient treatment, that the person fails or refuses to comply
with written orders of the department or health authority under
Section 81.083, if applicable.
SECTION 6. Section 81.153(a), Health and Safety Code, is
amended to read as follows:
(a) The judge shall appoint an attorney to represent a
person not later than the 24th hour after the time an application
for a court order for the management of a person exposed to or
infected with a communicable disease is filed if the person does not
have an attorney. The judge shall also appoint a language or sign
interpreter if necessary to ensure effective communication with the
attorney in the person's primary language.
SECTION 7. Section 81.158(a), Health and Safety Code, is
amended to read as follows:
(a) An affidavit of medical evaluation must be dated and
signed by the commissioner or the commissioner's designee, or by a
health authority with the concurrence of the commissioner or the
commissioner's designee. The certificate must include:
(1) the name and address of the examining physician,
if applicable;
(2) the name and address of the person examined or to
be examined;
(3) the date and place of the examination, if
applicable;
(4) a brief diagnosis of the examined person's
physical and mental condition, if applicable;
(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 health treatment,
if any, given by or administered under the direction of the
examining physician; and
(7) the opinion of the health authority or department
and the reason for that opinion, including laboratory reports,
that:
(A) the examined person is infected with or is
reasonably suspected of having been exposed to or [being] infected
with a communicable disease that presents a threat to public
health; and
(B) as a result of that communicable disease the
examined person:
(i) is likely to cause serious harm to self
[himself]; or
(ii) will, if not examined, observed, or
treated, continue to endanger public health.
SECTION 8. Section 81.159(a), Health and Safety Code, is
amended to read as follows:
(a) The commissioner shall designate health care facilities
throughout the state that are capable of providing services for the
examination, observation, isolation, or treatment of persons
having or suspected of being exposed to or having a communicable
disease. However, the commissioner may not designate:
(1) a nursing home or custodial care home required to
be licensed under Chapter 242; or
(2) an intermediate care facility for persons with an
intellectual or developmental disability [the mentally retarded]
required to be licensed under Chapter 252.
SECTION 9. Section 81.161(a), Health and Safety Code, is
amended to read as follows:
(a) A motion for an order of protective custody may be filed
only in the court in which an application for a court order for the
management of a person exposed to or infected with a communicable
disease is pending.
SECTION 10. Sections 81.162(a) and (f), Health and Safety
Code, are amended to read as follows:
(a) The judge or designated magistrate may issue a
protective custody order if the judge or magistrate determines:
(1) that the health authority or department has stated
its opinion and the detailed basis for its opinion that the person
is infected with or is reasonably suspected of having been exposed
to or [being] infected with a communicable disease that presents an
immediate threat to the public health; and
(2) that the person fails or refuses to comply with the
written orders of the health authority or the department under
Section 81.083, if applicable.
(f) Notwithstanding Section 81.161 or Subsection (c), a
judge or magistrate may issue a temporary protective custody order
before the filing of an application for a court order for the
management of a person exposed to or infected with a communicable
disease under Section 81.151 if:
(1) the judge or magistrate takes testimony that an
application under Section 81.151, together with a motion for
protective custody under Section 81.161, will be filed with the
court on the next business day; and
(2) the judge or magistrate determines based on
evidence taken under Subsection (d) that there is probable cause to
believe that the person presents a substantial risk of serious harm
to self [himself] or others to the extent that the person cannot be
at liberty pending the filing of the application and motion.
SECTION 11. Section 81.165(a), Health and Safety Code, is
amended to read as follows:
(a) A hearing must be held to determine if:
(1) there is probable cause to believe that a person
under a protective custody order presents a substantial risk of
serious harm to self [himself] or others to the extent that the
person cannot be at liberty pending the hearing on a court order for
the management of a person exposed to or infected with a
communicable disease; and
(2) the health authority or department has stated its
opinion and the detailed basis for its opinion that the person is
infected with or is reasonably suspected of being exposed to or
infected with a communicable disease that presents an immediate
threat to public health.
SECTION 12. Section 81.166(d), Health and Safety Code, is
amended to read as follows:
(d) The notification of probable cause hearing shall read as
follows:
(Style of Case)
NOTIFICATION OF PROBABLE CAUSE HEARING
On this the _____ day of _________________, 20__ [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 or her attorney
_________________________ have been 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 affidavit of medical evaluation and
________________ (other evidence considered). Based on this
evidence, I find that there is probable cause to believe that the
proposed patient presents a substantial risk of serious harm to
himself or herself (yes ____ or no ____) or others (yes ____ or no
____) such that (s)he cannot be at liberty pending final hearing
because (s)he is infected with or is reasonably suspected of being
exposed to or infected with a communicable disease that presents an
immediate threat to the public health and (s)he has failed or
refused to comply with the orders of the health authority or the
[Texas] Department of State Health Services delivered on __________
(date of service) ____________.
SECTION 13. Section 81.167(a), Health and Safety Code, is
amended to read as follows:
(a) The head of a facility or the facility head's designee
shall detain a person under a protective custody order in the
facility pending a court order for the management of a person
exposed to or infected with a communicable disease or until the
person is released or discharged under Section 81.168.
SECTION 14. Section 81.168(c), Health and Safety Code, is
amended to read as follows:
(c) The head of a facility shall discharge a person held
under a protective custody order if:
(1) the head of the facility does not receive notice
within 72 hours after detention begins, excluding Saturdays,
Sundays, legal holidays, the period prescribed by Section 81.165(b)
for an extreme weather emergency, and the duration of a public
health disaster, that a probable cause hearing was held and the
person's continued detention was authorized;
(2) a final court order for the management of a person
exposed to or infected with a communicable disease has not been
entered within the time prescribed by Section 81.154; or
(3) the health authority or commissioner determines
that the person no longer meets the criteria for protective custody
prescribed by Section 81.162.
SECTION 15. Section 81.169(a), Health and Safety Code, is
amended to read as follows:
(a) Except as provided by Subsection (b), the judge may hold
a hearing on an application for a court order for the management of
a person exposed to or infected with a communicable disease 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
public or the person.
SECTION 16. Section 81.170(f), Health and Safety Code, is
amended to read as follows:
(f) The jury shall determine if the person is infected with
or is reasonably suspected of being exposed to or infected with a
communicable disease that presents a threat to the public health
and, if the application is for inpatient treatment, has refused or
failed to follow the orders of the health authority. The jury may
not make a finding about the type of services to be provided to the
person.
SECTION 17. Section 81.171(a), Health and Safety Code, is
amended to read as follows:
(a) The court shall enter an order denying an application
for a court order for temporary or extended management if after a
hearing the judge or jury fails to find, from clear and convincing
evidence, that the person:
(1) is infected with or is reasonably suspected of
being exposed to or infected with a communicable disease that
presents a threat to the public health;
(2) has refused or failed to follow the orders of the
health authority if the application is for inpatient treatment; and
(3) meets the applicable criteria for orders for the
management of a person exposed to or infected with a communicable
disease.
SECTION 18. Section 81.172(a), Health and Safety Code, is
amended to read as follows:
(a) The judge or jury may determine that a person requires
court-ordered examination, observation, isolation, or treatment
only if the judge or jury finds, from clear and convincing evidence,
that:
(1) the person is infected with or is reasonably
suspected of being exposed to or infected with a communicable
disease that presents a threat to the public health and, if the
application is for inpatient treatment, has failed or refused to
follow the orders of the health authority or department; and
(2) as a result of the communicable disease the
person:
(A) is likely to cause serious harm to self
[himself]; or
(B) will, if not examined, observed, isolated, or
treated, continue to endanger public health.
SECTION 19. Section 81.174(a), Health and Safety Code, is
amended to read as follows:
(a) The judge shall dismiss the jury, if any, after a
hearing in which a person is found:
(1) to be infected with or reasonably suspected of
being exposed to or infected with a communicable disease;
(2) to have failed or refused to follow the orders of a
health authority or the department if the application is for
inpatient treatment; and
(3) to meet the criteria for orders for the management
of a patient exposed to or infected with a communicable disease.
SECTION 20. Section 81.176, Health and Safety Code, is
amended to read as follows:
Sec. 81.176. DESIGNATION OF FACILITY. In a court order for
the temporary or extended management of a person exposed to or
infected with a communicable disease specifying inpatient care, the
court shall commit the person to a health care facility designated
by the commissioner or a health authority in accordance with
Section 81.159.
SECTION 21. Section 81.183(b), Health and Safety Code, is
amended to read as follows:
(b) The court shall appoint an attorney to represent the
person if a hearing is scheduled. The person shall be given notice
of the matters to be considered at the hearing. The notice must
comply with the requirements of Section 81.155 for notice before a
hearing on an application for court orders for the management of a
person exposed to or infected with a communicable disease.
SECTION 22. Section 81.186(a), Health and Safety Code, is
amended to read as follows:
(a) The court may modify an order for outpatient services at
the modification hearing if the court determines that the person
continues to meet the applicable criteria for court orders for the
management of a person exposed to or infected with a communicable
disease and that:
(1) the person has not complied with the court's order;
or
(2) the person's condition has deteriorated to the
extent that outpatient services are no longer appropriate.
SECTION 23. Section 81.188(a), Health and Safety Code, is
amended to read as follows:
(a) The court may set aside an order for the management of a
person exposed to or infected with a communicable disease and grant
a motion for rehearing for good cause shown.
SECTION 24. Section 81.190(d), Health and Safety Code, is
amended to read as follows:
(d) The hearing is held before the court and without a jury.
The hearing must be held in accordance with the requirements for a
hearing on an application for a court order for the management of a
person exposed to or infected with a communicable disease.
SECTION 25. Section 81.191(a), Health and Safety Code, is
amended to read as follows:
(a) An appeal from an order for the management of a person
exposed to or infected with a communicable disease, or from a
renewal or modification of an order, must be filed in the court of
appeals for the county in which the order is entered.
SECTION 26. Section 81.193(a), Health and Safety Code, is
amended to read as follows:
(a) The head of a facility may permit a person admitted to
the facility under order for extended inpatient management of a
person exposed to or infected with a communicable disease to leave
the facility under a pass.
SECTION 27. This Act takes effect September 1, 2015.