By: A. Johnson of Harris H.B. No. 2037
A BILL TO BE ENTITLED
AN ACT
relating to certain proceedings in juvenile court for children with
mental illness and intellectual disabilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 51.20(a), (b), (c), and (d), Family
Code, are amended to read as follows:
(a) At any stage of the proceedings under this title,
including when a child is initially detained in a pre-adjudication
secure detention facility or a post-adjudication secure
correctional facility, the juvenile court may, at its discretion or
at the request of the child's parent or guardian, order a child who
is referred to the juvenile court or who is alleged by a petition or
found to have engaged in delinquent conduct or conduct indicating a
need for supervision to be examined by a disinterested expert,
including a physician, psychiatrist, or psychologist, qualified by
education and clinical training in mental health or intellectual
disability [mental retardation] and experienced in forensic
evaluation, to determine whether the child has a mental illness as
defined by Section 571.003, Health and Safety Code, is a person with
an intellectual disability [mental retardation] as defined by
Section 591.003, Health and Safety Code, or suffers from chemical
dependency as defined by Section 464.001, Health and Safety
Code. [If the examination is to include a determination of the
child's fitness to proceed, an expert may be appointed to conduct
the examination only if the expert is qualified under Subchapter B,
Chapter 46B, Code of Criminal Procedure, to examine a defendant in a
criminal case, and the examination and the report resulting from an
examination under this subsection must comply with the requirements
under Subchapter B, Chapter 46B, Code of Criminal Procedure, for
the examination and resulting report of a defendant in a criminal
case.]
(b) If, after conducting an examination of a child ordered
under Subsection (a) and reviewing any other relevant information,
there is reason to believe that the child has a mental illness or
intellectual disability [mental retardation] or suffers from
chemical dependency, the probation department shall refer the child
to the local mental health [or mental retardation] authority, to
the local intellectual and developmental disability authority, or
to another appropriate and legally authorized agency or provider
for evaluation and services, unless the prosecuting attorney has
filed a petition under Section 53.04.
(c) If, while a child is under deferred prosecution
supervision or court-ordered probation, a qualified professional
determines that the child has a mental illness or intellectual
disability [mental retardation] or suffers from chemical
dependency and the child is not currently receiving treatment
services for the mental illness, intellectual disability [mental
retardation], or chemical dependency, the probation department
shall refer the child to the local mental health [or mental
retardation] authority, to the local intellectual and
developmental disability authority, or to another appropriate and
legally authorized agency or provider for evaluation and services.
(d) A probation department shall report each referral of a
child to a local mental health [or mental retardation] authority,
to a local intellectual and developmental disability authority, or
to another agency or provider made under Subsection (b) or (c) to
the Texas Juvenile Justice Department in a format specified by the
department.
SECTION 2. Subchapter A, Chapter 55, Family Code, is
amended to read as follows:
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 55.01. DEFINITIONS [MEANING OF "HAVING A MENTAL
ILLNESS"]. In [For purposes of] this chapter:
(1) "Adaptive behavior" and "intellectual disability"
have the meanings assigned by Section 591.003, Health and Safety
Code.
(2) "Child with an intellectual disability" means a
child determined by a physician or psychologist licensed in this
state to have subaverage general intellectual functioning with
deficits in adaptive behavior.
(3) "Child with mental illness" [, a child who is
described as having a mental illness] means a child determined by a
physician or psychologist licensed in this state to have [with] a
mental illness.
(4) "Interdisciplinary team" means a group of
intellectual disability professionals and paraprofessionals who
assess the treatment, training, and habilitation needs of a person
with an intellectual disability and make recommendations for
services for that person.
(5) "Least restrictive appropriate setting" means the
treatment or service setting closest to the child's home that
provides the child with the greatest probability of improvement and
is no more restrictive of the child's physical or social liberties
than is necessary to provide the child with the most effective
treatment or services and to protect adequately against any danger
the child poses to self or others.
(6) "Mental illness" has the meaning assigned by
Section 571.003, Health and Safety Code.
(7) "Restoration classes" means curriculum-based
educational sessions a child attends to assist in restoring the
child's fitness to proceed, including the child's capacity to
understand the proceedings in juvenile court and to assist in the
child's own defense.
(8) "Subaverage general intellectual functioning"
means intelligence that is measured on standardized psychometric
instruments of two or more standard deviations below the age-group
mean for the instruments used [as defined by Section 571.003,
Health and Safety Code].
Sec. 55.02. MENTAL HEALTH AND INTELLECTUAL DISABILITY
JURISDICTION. For the purpose of initiating proceedings to order
mental health or intellectual disability services for a child [or
for commitment of a child] as provided by this chapter, the juvenile
court has jurisdiction of proceedings under Subtitle C or D, Title
7, Health and Safety Code.
Sec. 55.03. STANDARDS OF CARE. (a) Except as provided by
this chapter, a child for whom inpatient or outpatient mental
health services are [is] ordered by a court under this chapter shall
be cared for as provided by Subtitle C, Title 7, Health and Safety
Code.
(b) Except as provided by this chapter, a child who is
ordered [committed] by a court to a residential care facility due to
an intellectual disability shall be cared for as provided by
Subtitle D, Title 7, Health and Safety Code.
Sec. 55.04. FORENSIC MENTAL EXAMINATION. (a) In this
section, "forensic mental examination" means an examination by a
disinterested physician or psychologist to determine if a child who
is alleged by petition or found to have engaged in delinquent
conduct or conduct indicating a need for supervision is a child with
mental illness, is unfit to proceed in juvenile court due to mental
illness or an intellectual disability, or lacks responsibility for
conduct due to mental illness or an intellectual disability.
(b) A juvenile court may order a forensic mental examination
if the court determines that probable cause exists to believe that a
child who is alleged by petition or found to have engaged in
delinquent conduct or conduct indicating a need for supervision is
a child with mental illness, is unfit to proceed in juvenile court
due to mental illness or an intellectual disability, or lacks
responsibility for conduct due to mental illness or an intellectual
disability.
(c) To qualify for appointment as an expert under this
chapter, a physician or psychologist must:
(1) as appropriate, be a physician licensed in this
state or be a psychologist licensed in this state who has a doctoral
degree in psychology; and
(2) have the following certification or training:
(A) as appropriate, certification by:
(i) the American Board of Psychiatry and
Neurology with added or special qualifications in forensic
psychiatry; or
(ii) the American Board of Professional
Psychology in forensic psychology; or
(B) training consisting of:
(i) at least 24 hours of specialized
forensic training relating to incompetency, fitness to proceed,
lack of responsibility for conduct, or insanity evaluations; and
(ii) at least eight hours of continuing
education relating to forensic evaluations, completed in the 12
months preceding the date of the appointment.
(d) In addition to meeting the qualifications required by
Subsection (c), to be appointed as an expert, a physician or
psychologist must have completed six hours of required continuing
education in courses in forensic psychiatry or psychology, as
appropriate, in the 24 months preceding the appointment.
(e) A court may appoint as an expert a physician or
psychologist who does not meet the requirements of Subsections (c)
and (d) only if the court determines that exigent circumstances
require the court to appoint an expert with specialized expertise
to examine the child that is not ordinarily possessed by a physician
or psychologist who meets the requirements of Subsections (c) and
(d).
Sec. 55.05. CRITERIA FOR COURT-ORDERED MENTAL HEALTH
SERVICES FOR CHILD. (a) A juvenile court may order a child who is
subject to the jurisdiction of the juvenile court to receive
temporary inpatient mental health services only if the court finds,
from clear and convincing evidence, that:
(1) the child is a child with mental illness; and
(2) as a result of that mental illness, the child:
(A) is likely to cause serious harm to the
child's self;
(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 child's ability to function
independently; and
(iii) unable to make a rational and
informed decision as to whether to submit to treatment or is
unwilling to submit to treatment.
(b) A juvenile court may order a child who is subject to the
jurisdiction of the juvenile court to receive temporary outpatient
mental health services only if the court finds:
(1) that appropriate mental health services are
available to the child; and
(2) clear and convincing evidence that:
(A) the child is a child with severe and
persistent mental illness;
(B) as a result of the mental illness, the child
will, if not treated, experience deterioration of the ability to
function independently to the extent that the child will be unable
to live safely in the community without court-ordered outpatient
mental health services;
(C) outpatient mental health services are needed
to prevent a relapse that would likely result in serious harm to the
child or others; and
(D) the child has an inability to effectively and
voluntarily participate in outpatient treatment services,
demonstrated by:
(i) any of the child's actions occurring
within the two-year period preceding the date of the hearing; or
(ii) specific characteristics of the
child's clinical condition that significantly impair the child's
ability to make a rational and informed decision as to whether to
submit to voluntary outpatient treatment.
(c) A juvenile court may order a child who is subject to the
jurisdiction of the juvenile court to receive extended inpatient
mental health services only if the court finds, from clear and
convincing evidence, that, in addition to the findings in
Subsection (a):
(1) the child's condition is expected to continue for
more than 90 days; and
(2) the child has received court-ordered inpatient
mental health services under this chapter or under Chapter 574,
Health and Safety Code, for at least 60 consecutive days during the
preceding 12 months.
(d) A juvenile court may order a child who is subject to the
jurisdiction of the juvenile court to receive extended outpatient
mental health services only if, in addition to the findings in
Subsection (b):
(1) the child's condition is expected to continue for
more than 90 days; and
(2) the child has received:
(A) court-ordered inpatient mental health
services under this chapter or under Chapter 574, Health and Safety
Code, for at least 60 consecutive days during the preceding 12
months; or
(B) court-ordered outpatient mental health
services under this chapter or under Chapter 574, Health and Safety
Code, during the preceding 60 days.
Sec. 55.06. CRITERIA FOR COURT-ORDERED RESIDENTIAL
INTELLECTUAL DISABILITY SERVICES FOR CHILD. A child may not be
court-ordered to receive services at a residential care facility
unless:
(1) the child is a child with an intellectual
disability;
(2) evidence is presented showing that because of the
child's intellectual disability, the child:
(A) represents a substantial risk of physical
impairment or injury to the child or others; or
(B) is unable to provide for and is not providing
for the child's most basic personal physical needs;
(3) the child cannot be adequately and appropriately
habilitated in an available, less restrictive setting;
(4) the residential care facility provides
habilitative services, care, training, and treatment appropriate
to the child's needs; and
(5) an interdisciplinary team recommends placement in
the residential care facility.
SECTION 3. The heading to Subchapter B, Chapter 55, Family
Code, is amended to read as follows:
SUBCHAPTER B. COURT-ORDERED MENTAL HEALTH SERVICES FOR CHILD WITH
MENTAL ILLNESS
SECTION 4. Sections 55.11(b) and (c), Family Code, are
amended to read as follows:
(b) If the court determines that probable cause exists to
believe that the child is a child with [has a] mental illness, the
court shall temporarily stay the juvenile court proceedings and
immediately order the child to be examined under Section 55.04
[51.20]. The information obtained from the examination must
include expert opinion as to:
(1) whether the child is a child with [has a] mental
illness;
(2) [and] whether the child meets the [commitment]
criteria for court-ordered mental health services under Section
55.05 for:
(A) temporary inpatient mental health services;
(B) temporary outpatient mental health services;
(C) extended inpatient mental health services;
or
(D) extended outpatient mental health services;
and
(3) if applicable, the specific criteria the child
meets under Subdivision (2) [under Subtitle C, Title 7, Health and
Safety Code. If ordered by the court, the information must also
include expert opinion as to whether the child is unfit to proceed
with the juvenile court proceedings].
(c) After considering all relevant information, including
information obtained from an examination under Section 55.04
[51.20], the court shall:
(1) proceed under Section 55.12 if the court
determines that evidence exists to support a finding that the child
is a child with [has a] mental illness and that the child meets the
[commitment] criteria for court-ordered mental health services
under Section 55.05 [Subtitle C, Title 7, Health and Safety Code,
proceed under Section 55.12]; or
(2) dissolve the stay and continue the juvenile court
proceedings if the court determines that evidence does not exist to
support a finding that the child is a child with [has a] mental
illness or that the child meets the [commitment] criteria for
court-ordered mental health services under Section 55.05 [Subtitle
C, Title 7, Health and Safety Code, dissolve the stay and continue
the juvenile court proceedings].
SECTION 5. Sections 55.12, 55.15, 55.16, 55.17, 55.18, and
55.19, Family Code, are amended to read as follows:
Sec. 55.12. INITIATION OF [COMMITMENT] PROCEEDINGS FOR
COURT-ORDERED MENTAL HEALTH SERVICES. If, after considering all
relevant information, the juvenile court determines that evidence
exists to support a finding that a child is a child with [has a]
mental illness and that the child meets the [commitment] criteria
for court-ordered mental health services under Section 55.05 [under
Subtitle C, Title 7, Health and Safety Code], the court shall:
(1) initiate proceedings as provided by Section 55.65
[55.13] to order temporary or extended mental health services, as
provided in this chapter and Subchapter C, Chapter 574, Health and
Safety Code; or
(2) refer the child's case as provided by Section 55.68
[55.14] to the appropriate court for the initiation of proceedings
in that court to order temporary or extended mental health services
for [commitment of] the child under this chapter and Subchapter C,
Chapter 574, Health and Safety Code.
Sec. 55.15. STANDARDS OF CARE; EXPIRATION OF COURT ORDER
FOR MENTAL HEALTH SERVICES. Treatment ordered under this
subchapter for a child with mental illness must focus on the
stabilization of the child's mental illness and on meeting the
child's psychiatric needs in the least restrictive appropriate
setting. If the juvenile court or a court to which the child's case
is referred under Section 55.12(2) orders mental health services
for the child, the child shall be cared for, treated, and released
in conformity to Subtitle C, Title 7, Health and Safety Code,
except:
(1) a court order for mental health services for a
child automatically expires on the 120th day after the date the
child becomes 18 years of age; and
(2) the administrator of a mental health facility
shall notify, in writing, by certified mail, return receipt
requested, the juvenile court that ordered mental health services
or the juvenile court that referred the case to a court that ordered
the mental health services of the intent to discharge the child at
least 10 days prior to discharge.
Sec. 55.16. ORDER FOR MENTAL HEALTH SERVICES; STAY OF
PROCEEDINGS. (a) If the court to which the child's case is
referred under Section 55.12(2) orders temporary or extended
[inpatient] mental health services for the child, the court shall
immediately notify in writing the referring juvenile court of the
court's order for mental health services.
(b) If the juvenile court orders temporary or extended
[inpatient] mental health services for the child or if the juvenile
court receives notice under Subsection (a) from the court to which
the child's case is referred, the proceedings under this title then
pending in juvenile court shall be stayed.
Sec. 55.17. MENTAL HEALTH SERVICES NOT ORDERED;
DISSOLUTION OF STAY. (a) If the court to which a child's case is
referred under Section 55.12(2) does not order temporary or
extended [inpatient] mental health services for the child, the
court shall immediately notify in writing the referring juvenile
court of the court's decision.
(b) If the juvenile court does not order temporary or
extended [inpatient] mental health services for the child or if the
juvenile court receives notice under Subsection (a) from the court
to which the child's case is referred, the juvenile court shall
dissolve the stay and continue the juvenile court proceedings.
Sec. 55.18. DISCHARGE FROM COURT-ORDERED INPATIENT OR
OUTPATIENT MENTAL HEALTH SERVICES [FACILITY] BEFORE REACHING 18
YEARS OF AGE. If the child is discharged from the mental health
facility or from outpatient treatment services before reaching 18
years of age, the juvenile court may:
(1) dismiss the juvenile court proceedings with
prejudice; or
(2) dissolve the stay and continue with proceedings
under this title as though no order of mental health services had
been made.
Sec. 55.19. DISCRETIONARY TRANSFER TO CRIMINAL COURT ON
18TH BIRTHDAY. (a) The juvenile court may waive its exclusive
original jurisdiction and [shall] transfer all pending proceedings
from the juvenile court to a criminal court on or after the 18th
birthday of a child for whom the juvenile court or a court to which
the child's case was [is] referred under Section 55.12(2) [has]
ordered inpatient mental health services if:
(1) the child is not discharged or furloughed from the
inpatient mental health facility before reaching 18 years of age;
and
(2) the child is alleged to have engaged in delinquent
conduct that included a violation of a penal law listed in Section
53.045 and no adjudication concerning the alleged conduct has been
made.
(b) A court conducting a waiver of jurisdiction and
discretionary transfer hearing under this section shall conduct the
hearing according to Sections 54.02(j), (k), and (l).
(c) If after the hearing the juvenile court waives its
jurisdiction and transfers the person to criminal court, the [The]
juvenile court shall send notification of the transfer of a child
under Subsection (a) to the inpatient mental health facility. The
criminal court shall, within 90 days of the transfer, institute
proceedings under Chapter 46B, Code of Criminal Procedure. If
those or any subsequent proceedings result in a determination that
the defendant is competent to stand trial, the defendant may not
receive a punishment for the delinquent conduct described by
Subsection (a)(2) that results in confinement for a period longer
than the maximum period of confinement the defendant could have
received if the defendant had been adjudicated for the delinquent
conduct while still a child and within the jurisdiction of the
juvenile court.
SECTION 6. Section 55.31, Family Code, is amended by
amending Subsections (c) and (d) and adding Subsections (e) and (f)
to read as follows:
(c) If the court determines that probable cause exists to
believe that the child is unfit to proceed, the court shall
temporarily stay the juvenile court proceedings and immediately
order the child to be examined under Section 55.04 [51.20. The
information obtained from the examination must include expert
opinion as to whether the child is unfit to proceed as a result of
mental illness or an intellectual disability].
(d) During an examination ordered under this section, and in
any report based on that examination, an expert shall consider, in
addition to other issues determined relevant by the expert:
(1) whether the child, as supported by current
indications and the child's personal history:
(A) is a child with mental illness; or
(B) is a child with an intellectual disability;
(2) the child's capacity to:
(A) appreciate the allegations against the
child;
(B) appreciate the range and nature of allowable
dispositions that may be imposed in the proceedings against the
child;
(C) understand the roles of the participants and
the adversarial nature of the legal process;
(D) display appropriate courtroom behavior; and
(E) testify relevantly; and
(3) the degree of impairment resulting from the
child's mental illness or intellectual disability and the specific
impact on the child's capacity to engage with counsel in a
reasonable and rational manner.
(e) An expert's report to the court must state an opinion on
the child's fitness to proceed or explain why the expert is unable
to state that opinion and include:
(1) the child's history and current status regarding
any possible mental illness or intellectual disability;
(2) the child's developmental history as it relates to
any possible mental illness or intellectual disability;
(3) the child's functional abilities related to
fitness to stand trial;
(4) the relationship between deficits in the child's
functional abilities related to fitness to proceed and any mental
illness or intellectual disability; and
(5) if the expert believes the child is in need of
remediation or restoration services, a discussion of:
(A) whether the child's abilities are likely to
be remediated or restored within the period described by Section
55.33(a)(1), (2), or (3);
(B) whether the child may be adequately treated
in an alternative setting;
(C) any recommended interventions to aid in the
remediation or restoration of the child's fitness;
(D) whether the child meets criteria for
court-ordered treatment or services under Section 55.05 or 55.06;
and
(E) if applicable, the specific criteria the
child meets under Paragraph (D).
(f) [(d)] After considering all relevant information,
including information obtained from an examination under Section
55.04 [51.20], the court shall:
(1) if the court determines that evidence exists to
support a finding that the child is unfit to proceed, proceed under
Section 55.32; or
(2) if the court determines that evidence does not
exist to support a finding that the child is unfit to proceed,
dissolve the stay and continue the juvenile court proceedings.
SECTION 7. Sections 55.33 and 55.35, Family Code, are
amended to read as follows:
Sec. 55.33. PROCEEDINGS FOLLOWING FINDING OF UNFITNESS TO
PROCEED. (a) If the juvenile court or jury determines under
Section 55.32 that a child is unfit as a result of mental illness or
an intellectual disability to proceed with the juvenile court
proceedings for delinquent conduct, the court shall:
(1) provided that the child meets the inpatient mental
health services or residential intellectual disability services
[commitment] criteria under Section 55.05 or 55.06 [Subtitle C or
D, Title 7, Health and Safety Code], order the child placed with the
Health and Human Services Commission [Department of State Health
Services or the Department of Aging and Disability Services, as
appropriate,] for a period of not more than 90 days, which order may
not specify a shorter period, for placement in a facility
designated by the commission [department];
(2) on application by the child's parent, guardian, or
guardian ad litem, order the child placed in a private psychiatric
inpatient facility or residential care facility for a period of not
more than 90 days, which order may not specify a shorter period, but
only if:
(A) the unfitness to proceed is a result of
mental illness or an intellectual disability; and
(B) the placement is agreed to in writing by the
administrator of the facility; or
(3) subject to Subsection (d) [(c)], if the court
determines that the child may be adequately treated or served in an
alternative setting and finds that the child does not meet criteria
for court-ordered inpatient mental health services or residential
intellectual disability services under Section 55.05 or 55.06,
order the child to receive treatment for mental illness or services
for the child's intellectual disability, as appropriate, on an
outpatient basis for a period of [not more than] 90 days, with the
possibility of extension as ordered by the court [which order may
not specify a shorter period].
(b) If a child receives treatment for mental illness or
services for the child's intellectual disability on an outpatient
basis in an alternative setting under Subsection (a)(3), juvenile
probation departments may provide restoration classes in
collaboration with the outpatient alternative setting.
(c) If the court orders a child placed in a private
psychiatric inpatient facility or residential care facility under
Subsection (a)(2) or in an alternative setting under Subsection
(a)(3), the state or a political subdivision of the state may be
ordered to pay any costs associated with the ordered services
[child's placement], subject to an express appropriation of funds
for the purpose.
(d) [(c)] Before issuing an order described by Subsection
(a)(3), the court shall consult with the local juvenile probation
department, [and] with local treatment or service providers, with
the local mental health authority, and with the local intellectual
and developmental disability authority to determine the
appropriate treatment or services and restoration classes for the
child.
Sec. 55.35. INFORMATION REQUIRED TO BE SENT TO FACILITY OR
ALTERNATIVE SETTING; REPORT TO COURT. (a) If the juvenile court
issues an [a placement] order under Section 55.33(a), the court
shall order the probation department to send copies of any
information in the possession of the department and relevant to the
issue of the child's mental illness or intellectual disability to
the public or private facility or outpatient alternative setting
[center], as appropriate.
(b) Not later than the 75th day after the date the court
issues an [a placement] order under Section 55.33(a), the public or
private facility or outpatient alternative setting [center], as
appropriate, shall submit to the court a report that:
(1) describes the treatment or services provided to
the child by the facility or alternative setting [center]; and
(2) states the opinion of the director of the facility
or alternative setting [center] as to whether the child is fit or
unfit to proceed.
(c) If the report under Subsection (b) states that the child
is unfit to proceed, the report must also include an opinion and the
reasons for that opinion as to whether the child meets the criteria
for court-ordered mental health services or court-ordered
intellectual disability services under Section 55.05 or 55.06.
(d) The report of an outpatient alternative setting
collaborating with a juvenile probation department to provide
restoration classes must include any information provided by the
juvenile probation department regarding the child's assessment at
the conclusion of the restoration classes.
(e) The court shall provide a copy of the report submitted
under Subsection (b) to the prosecuting attorney and the attorney
for the child.
SECTION 8. Section 55.36(d), Family Code, is amended to
read as follows:
(d) If, after a hearing, the court or jury finds that the
child is unfit to proceed, the court shall proceed under Section
55.37 or 55.40, as appropriate.
SECTION 9. Sections 55.37 and 55.40, Family Code, are
amended to read as follows:
Sec. 55.37. REPORT THAT CHILD IS UNFIT TO PROCEED AS A
RESULT OF MENTAL ILLNESS; INITIATION OF [COMMITMENT] PROCEEDINGS
FOR COURT-ORDERED MENTAL HEALTH SERVICES. If a report submitted
under Section 55.35(b) states that a child is unfit to proceed as a
result of mental illness and that the child meets the [commitment]
criteria for court-ordered mental health services under Section
55.05 [civil commitment under Subtitle C, Title 7, Health and
Safety Code], the director of the public or private facility or
outpatient alternative setting [center], as appropriate, shall
submit to the court two certificates of medical examination for
mental illness, as described by Subchapter A, Chapter 574, Health
and Safety Code. On receipt of the certificates, the court shall:
(1) initiate proceedings as provided by Section 55.66
for temporary or extended mental health services, as provided by
this chapter and Subchapter C, Chapter 574, [55.38 in the juvenile
court for commitment of the child under Subtitle C, Title 7,] Health
and Safety Code; or
(2) refer the child's case as provided by Section 55.68
[55.39] to the appropriate court for the initiation of proceedings
in that court for temporary or extended mental health services for
[commitment of] the child under this chapter and Subchapter C,
Chapter 574, [Subtitle C, Title 7,] Health and Safety Code.
Sec. 55.40. REPORT THAT CHILD IS UNFIT TO PROCEED AS A
RESULT OF INTELLECTUAL DISABILITY. If a report submitted under
Section 55.35(b) states that a child is unfit to proceed as a result
of an intellectual disability and that the child meets the
[commitment] criteria for court-ordered residential intellectual
disability services under Section 55.06 [civil commitment under
Subtitle D, Title 7, Health and Safety Code], the director of the
residential care facility or alternative setting shall submit to
the court an affidavit stating the conclusions reached as a result
of the diagnosis. On receipt of the affidavit, the court shall:
(1) initiate proceedings as provided by Section 55.67
[55.41] in the juvenile court for court-ordered residential
intellectual disability services for [commitment of] the child
under Subtitle D, Title 7, Health and Safety Code; or
(2) refer the child's case as provided by Section 55.68
[55.42] to the appropriate court for the initiation of proceedings
in that court for court-ordered residential intellectual
disability services for [commitment of] the child under Subtitle D,
Title 7, Health and Safety Code.
SECTION 10. Section 55.43(a), Family Code, is amended to
read as follows:
(a) The prosecuting attorney may file with the juvenile
court a motion for a restoration hearing concerning a child if:
(1) the child is found unfit to proceed as a result of
mental illness or an intellectual disability; and
(2) the child:
(A) is not:
(i) ordered by a court to receive inpatient
mental health or intellectual disability services;
(ii) ordered [committed] by a court to
receive services at a residential care facility; or
(iii) ordered by a court to receive
treatment or services on an outpatient basis; or
(B) is discharged or currently on furlough from a
mental health facility or discharged from an alternative setting
[outpatient center] before the child reaches 18 years of age.
SECTION 11. Section 55.44, Family Code, is amended to read
as follows:
Sec. 55.44. DISCRETIONARY TRANSFER TO CRIMINAL COURT ON
18TH BIRTHDAY OF CHILD. (a) The juvenile court may waive its
exclusive original jurisdiction and [shall] transfer all pending
proceedings from the juvenile court to a criminal court on or after
the 18th birthday of a child for whom the juvenile court or a court
to which the child's case is referred has ordered inpatient mental
health services or residential care for persons with an
intellectual disability if:
(1) the child is not discharged or currently on
furlough from the facility before reaching 18 years of age; and
(2) the child is alleged to have engaged in delinquent
conduct that included a violation of a penal law listed in Section
53.045 and no adjudication concerning the alleged conduct has been
made.
(b) A court conducting a waiver of jurisdiction and
discretionary transfer hearing under this section shall conduct the
hearing according to Sections 54.02(j), (k), and (l).
(c) If after the hearing the juvenile court waives its
jurisdiction and transfers the case to criminal court, the [The]
juvenile court shall send notification of the transfer of a child
under Subsection (a) to the facility. The criminal court shall,
before the 91st day after the date of the transfer, institute
proceedings under Chapter 46B, Code of Criminal Procedure. If
those or any subsequent proceedings result in a determination that
the defendant is competent to stand trial, the defendant may not
receive a punishment for the delinquent conduct described by
Subsection (a)(2) that results in confinement for a period longer
than the maximum period of confinement the defendant could have
received if the defendant had been adjudicated for the delinquent
conduct while still a child and within the jurisdiction of the
juvenile court.
SECTION 12. Sections 55.45(b) and (c), Family Code, are
amended to read as follows:
(b) If the juvenile court or a court to which the child's
case is referred under Section 55.40(2) orders the intellectual
disability services for [commitment of] the child to be provided at
[to] a residential care facility, the child shall be cared for,
treated, and released in accordance with Subtitle D, Title 7,
Health and Safety Code, except that the administrator of the
residential care facility shall notify, in writing, by certified
mail, return receipt requested, the juvenile court that ordered
intellectual disability services for [commitment of] the child or
that referred the case to a court that ordered intellectual
disability services for [commitment of] the child of the intent to
discharge or furlough the child on or before the 20th day before the
date of discharge or furlough.
(c) If the referred child, as described in Subsection (b),
is alleged to have committed an offense listed in Article 42A.054,
Code of Criminal Procedure, the administrator of the residential
care facility shall apply, in writing, by certified mail, return
receipt requested, to the juvenile court that ordered services for
[commitment of] the child or that referred the case to a court that
ordered services for [commitment of] the child and show good cause
for any release of the child from the facility for more than 48
hours. Notice of this request must be provided to the prosecuting
attorney responsible for the case. The prosecuting attorney, the
juvenile, or the administrator may apply for a hearing on this
application. If no one applies for a hearing, the trial court shall
resolve the application on the written submission. The rules of
evidence do not apply to this hearing. An appeal of the trial
court's ruling on the application is not allowed. The release of a
child described in this subsection without the express approval of
the trial court is punishable by contempt.
SECTION 13. Section 55.51(b), Family Code, is amended to
read as follows:
(b) On a motion by a party in which it is alleged that a
child may not be responsible as a result of mental illness or an
intellectual disability for the child's conduct, the court shall
order the child to be examined under Section 55.04 [51.20]. The
information obtained from the examinations must include expert
opinion as to:
(1) whether the child is a child with mental illness or
an intellectual disability;
(2) whether the child is not responsible for the
child's conduct as a result of mental illness or an intellectual
disability;
(3) whether the child meets criteria for court-ordered
mental health or intellectual disability services under Section
55.05 or 55.06; and
(4) if applicable, the specific criteria the child
meets under Subdivision (3).
SECTION 14. Sections 55.52 and 55.54, Family Code, are
amended to read as follows:
Sec. 55.52. PROCEEDINGS FOLLOWING FINDING OF LACK OF
RESPONSIBILITY FOR CONDUCT. (a) If the court or jury finds that a
child is not responsible for the child's conduct under Section
55.51 as a result of mental illness or an intellectual disability,
the court shall:
(1) provided that the child meets the inpatient mental
health services or residential intellectual disability services
[commitment] criteria under Section 55.05 or 55.06 [Subtitle C or
D, Title 7, Health and Safety Code], order the child placed with the
Health and Human Services Commission [Department of State Health
Services or the Department of Aging and Disability Services, as
appropriate,] for a period of not more than 90 days, which order may
not specify a shorter period, for placement in a facility
designated by the commission [department];
(2) on application by the child's parent, guardian, or
guardian ad litem, order the child placed in a private psychiatric
inpatient facility or residential care facility for a period of not
more than 90 days, which order may not specify a shorter period, but
only if:
(A) the child's lack of responsibility is a
result of mental illness or an intellectual disability; and
(B) the placement is agreed to in writing by the
administrator of the facility; or
(3) subject to Subsection (c), if the court determines
that the child may be adequately treated or served in an alternative
setting and finds that the child does not meet criteria for
court-ordered inpatient mental health services or residential
intellectual disability services under Section 55.05 or 55.06,
order the child to receive treatment for mental illness or services
for the child's intellectual disability, as appropriate, on an
outpatient basis for a period of [not more than] 90 days, with the
possibility of extension as ordered by the court [which order may
not specify a shorter period].
(b) If the court orders a child placed in a private
psychiatric inpatient facility or residential care facility under
Subsection (a)(2) or in an alternative setting under Subsection
(a)(3), the state or a political subdivision of the state may be
ordered to pay any costs associated with the ordered services
[child's placement], subject to an express appropriation of funds
for the purpose.
(c) Before issuing an order described by Subsection (a)(3),
the court shall consult with the local juvenile probation
department, [and] with local treatment or service providers, with
the local mental health authority, and with the local intellectual
and developmental disability authority to determine the
appropriate treatment or services for the child.
Sec. 55.54. INFORMATION REQUIRED TO BE SENT TO FACILITY OR
ALTERNATIVE SETTING; REPORT TO COURT. (a) If the juvenile court
issues an [a placement] order under Section 55.52(a), the court
shall order the probation department to send copies of any
information in the possession of the department and relevant to the
issue of the child's mental illness or intellectual disability to
the public or private facility or alternative setting [outpatient
center], as appropriate.
(b) Not later than the 75th day after the date the court
issues an [a placement] order under Section 55.52(a), the public or
private facility or alternative setting [outpatient center], as
appropriate, shall submit to the court a report that:
(1) describes the treatment or services provided to
the child by the facility or alternative setting [center]; and
(2) states the opinion of the director of the facility
or alternative setting [center] as to whether the child is a child
with [has a] mental illness or an intellectual disability.
(c) If the report under Subsection (b) states that the child
is a child with mental illness or an intellectual disability, the
report must include an opinion as to whether the child meets
criteria for court-ordered mental health services or court-ordered
intellectual disability services under Section 55.05 or 55.06.
(d) [(c)] The court shall send a copy of the report
submitted under Subsection (b) to the prosecuting attorney and the
attorney for the child.
SECTION 15. Sections 55.55(b), (c), (d), and (e), Family
Code, are amended to read as follows:
(b) On objection by the prosecuting attorney under
Subsection (a), the juvenile court shall hold a hearing without a
jury to determine whether the child is a child with [has a] mental
illness or an intellectual disability and whether the child meets
the [commitment] criteria for court-ordered mental health services
or court-ordered intellectual disability services [civil
commitment] under Section 55.05 or 55.06 [Subtitle C or D, Title 7,
Health and Safety Code].
(c) At the hearing, the burden is on the state to prove by
clear and convincing evidence that the child is a child with [has a]
mental illness or an intellectual disability and that the child
meets the [commitment] criteria for court-ordered mental health
services or court-ordered intellectual disability services [civil
commitment] under Section 55.05 or 55.06 [Subtitle C or D, Title 7,
Health and Safety Code].
(d) If, after a hearing, the court finds that the child does
not have a mental illness or an intellectual disability and that the
child does not meet the [commitment] criteria for court-ordered
treatment services under Section 55.05 or 55.06 [Subtitle C or D,
Title 7, Health and Safety Code], the court shall discharge the
child.
(e) If, after a hearing, the court finds that the child has a
mental illness or an intellectual disability and that the child
meets the [commitment] criteria for court-ordered treatment
services under Section 55.05 or 55.06 [Subtitle C or D, Title 7,
Health and Safety Code], the court shall issue an appropriate
[commitment] order for court-ordered mental health services or
court-ordered intellectual disability services.
SECTION 16. Section 55.56, Family Code, is amended to read
as follows:
Sec. 55.56. REPORT THAT CHILD HAS MENTAL ILLNESS;
INITIATION OF [COMMITMENT] PROCEEDINGS FOR COURT-ORDERED MENTAL
HEALTH SERVICES. If a report submitted under Section 55.54(b)
states that a child is a child with [has a] mental illness and that
the child meets the [commitment] criteria for court-ordered mental
health services [civil commitment] under Section 55.05 [Subtitle C,
Title 7, Health and Safety Code], the director of the public or
private facility or alternative setting [outpatient center], as
appropriate, shall submit to the court two certificates of medical
examination for mental illness, as described by Subchapter A,
Chapter 574, Health and Safety Code. On receipt of the
certificates, the court shall:
(1) initiate proceedings as provided by Section 55.66
[55.57] in the juvenile court for court-ordered mental health
services for [commitment of] the child under Subtitle C, Title 7,
Health and Safety Code; or
(2) refer the child's case as provided by Section 55.68
[55.58] to the appropriate court for the initiation of proceedings
in that court for court-ordered mental health services for
[commitment of] the child under Subtitle C, Title 7, Health and
Safety Code.
SECTION 17. Section 55.59, Family Code, is amended to read
as follows:
Sec. 55.59. REPORT THAT CHILD HAS INTELLECTUAL DISABILITY;
INITIATION OF [COMMITMENT] PROCEEDINGS FOR COURT-ORDERED
RESIDENTIAL INTELLECTUAL DISABILITY SERVICES. If a report
submitted under Section 55.54(b) states that a child is a child with
[has] an intellectual disability and that the child meets the
[commitment] criteria for court-ordered residential intellectual
disability services under Section 55.06 [civil commitment under
Subtitle D, Title 7, Health and Safety Code], the director of the
residential care facility or alternative setting shall submit to
the court an affidavit stating the conclusions reached as a result
of the diagnosis. On receipt of an affidavit, the juvenile court
shall:
(1) initiate proceedings in the juvenile court as
provided by Section 55.67 [55.60] for court-ordered residential
intellectual disability services for [commitment of] the child
under Subtitle D, Title 7, Health and Safety Code; or
(2) refer the child's case to the appropriate court as
provided by Section 55.68 [55.61] for the initiation of proceedings
in that court for court-ordered residential intellectual
disability services for [commitment of] the child under Subtitle D,
Title 7, Health and Safety Code.
SECTION 18. Chapter 55, Family Code, is amended by adding
Subchapter E, and a heading is added to that subchapter to read as
follows:
SUBCHAPTER E. PROCEEDINGS FOR COURT-ORDERED MENTAL HEALTH OR
RESIDENTIAL INTELLECTUAL DISABILITY SERVICES
SECTION 19. Sections 55.13 and 55.14, Family Code, are
transferred to Subchapter E, Chapter 55, Family Code, as added by
this Act, redesignated as Sections 55.65 and 55.68, Family Code,
respectively, and amended to read as follows:
Sec. 55.65 [55.13]. [COMMITMENT] PROCEEDINGS IN JUVENILE
COURT FOR CHILD WITH MENTAL ILLNESS. (a) If the juvenile court
initiates proceedings for temporary or extended mental health
services under Section 55.12(1), the prosecuting attorney or the
attorney for the child may file with the juvenile court an
application for court-ordered mental health services under
Sections [Section] 574.001 and 574.002, Health and Safety Code.
The juvenile court shall:
(1) set a date for a hearing and provide notice as
required by Sections 574.005 and 574.006, Health and Safety Code;
[and]
(2) direct the local mental health authority to file,
before the date set for the hearing, its recommendation for the
child's proposed treatment, as required by Section 574.012, Health
and Safety Code;
(3) identify the person responsible for court-ordered
outpatient mental health services not later than the third day
before the date set for a hearing that may result in the court
ordering the child to receive court-ordered outpatient mental
health services, as required by Section 574.0125, Health and Safety
Code;
(4) appoint physicians necessary to examine the child
and to complete the certificates of medical examination for mental
illness required under Section 574.009, Health and Safety Code; and
(5) conduct the hearing in accordance with Subchapter
C, Chapter 574, Health and Safety Code.
(b) The burden of proof at the hearing is on the party who
filed the application.
(c) [The juvenile court shall appoint the number of
physicians necessary to examine the child and to complete the
certificates of medical examination for mental illness required
under Section 574.009, Health and Safety Code.
[(d)] After conducting a hearing on an application under
this section and with consideration given to the least restrictive
appropriate setting for treatment of the child and to the parent's,
managing conservator's, or guardian's availability and willingness
to participate in the treatment of the child, the juvenile court
shall:
(1) if the criteria under Section 55.05(a) or (b)
[574.034 or 574.0345, Health and Safety Code,] are satisfied, order
temporary inpatient or outpatient mental health services for the
child under Chapter 574, Health and Safety Code; or
(2) if the criteria under Section 55.05(c) or (d)
[574.035 or 574.0355, Health and Safety Code,] are satisfied, order
extended inpatient or outpatient mental health services for the
child under Chapter 574, Health and Safety Code.
(d) On receipt of the court's order for inpatient mental
health services, the Health and Human Services Commission shall
identify a facility and admit the child to the identified facility.
(e) If the child is currently detained in a juvenile
detention facility, the juvenile court shall:
(1) order the child released from detention to the
child's home or another appropriate place;
(2) order the child detained or placed in an
appropriate facility other than a juvenile detention facility; or
(3) conduct a detention hearing and, if the court
makes findings under Section 54.01 to support further detention of
the child, order the child to remain in the juvenile detention
facility subject to further detention orders of the court.
Sec. 55.68 [55.14]. REFERRAL FOR [COMMITMENT] PROCEEDINGS
FOR CHILD WITH MENTAL ILLNESS OR CHILD FOUND UNFIT TO PROCEED OR
LACKING RESPONSIBILITY FOR CONDUCT DUE TO MENTAL ILLNESS OR
INTELLECTUAL DISABILITY. (a) If the juvenile court refers the
child's case to an [the] appropriate court for the initiation of
[commitment] proceedings for court-ordered treatment services
under Section 55.12(2), 55.37(2), 55.40(2), 55.56(2), or 55.59(2),
the juvenile court shall:
(1) send to the clerk of the court to which the case is
referred all papers, including evaluations, examination reports,
court findings, orders, verdicts, judgments, and reports from
facilities and alternative settings, relating to:
(A) the child's mental illness or intellectual
disability;
(B) the child's unfitness to proceed, if
applicable; and
(C) the finding that the child was not
responsible for the child's conduct, if applicable [to the clerk of
the court to which the case is referred]; and
(2) send to the office of the appropriate county
attorney or, if a county attorney is not available, to the office of
the appropriate district attorney, copies of all papers sent to the
clerk of the court under Subdivision (1) [; and
[(3) if the child is in detention:
[(A) order the child released from detention to
the child's home or another appropriate place;
[(B) order the child detained in an appropriate
place other than a juvenile detention facility; or
[(C) if an appropriate place to release or detain
the child as described by Paragraph (A) or (B) is not available,
order the child to remain in the juvenile detention facility
subject to further detention orders of the court].
(b) The papers sent to the clerk of a court under Subsection
(a)(1) constitute an application for court-ordered mental health
services under Section 574.001, Health and Safety Code, or an
application for placement under Section 593.041, Health and Safety
Code, as applicable.
(c) If the child is currently detained in a juvenile
detention facility, the juvenile court shall:
(1) order the child released from detention to the
child's home or another appropriate place;
(2) order the child detained or placed in an
appropriate facility other than a juvenile detention facility; or
(3) conduct a detention hearing and, if the court
makes findings under Section 54.01 to support further detention of
the child, order the child to remain in the juvenile detention
facility subject to further detention orders of the court.
SECTION 20. Sections 55.38 and 55.41, Family Code, are
transferred to Subchapter E, Chapter 55, Family Code, as added by
this Act, redesignated as Sections 55.66 and 55.67, Family Code,
respectively, and amended to read as follows:
Sec. 55.66 [55.38]. [COMMITMENT] PROCEEDINGS IN JUVENILE
COURT FOR CHILD FOUND UNFIT TO PROCEED OR LACKING RESPONSIBILITY
FOR CONDUCT DUE TO MENTAL ILLNESS. (a) If the juvenile court
initiates [commitment] proceedings for court-ordered mental health
services under Section 55.37(1) or 55.56(1), the prosecuting
attorney may file with the juvenile court an application for
court-ordered mental health services under Sections [Section]
574.001 and 574.002, Health and Safety Code. The juvenile court
shall:
(1) set a date for a hearing and provide notice as
required by Sections 574.005 and 574.006, Health and Safety Code;
[and]
(2) direct the local mental health authority to file,
before the date set for the hearing, its recommendation for the
child's proposed treatment, as required by Section 574.012, Health
and Safety Code;
(3) identify the person responsible for court-ordered
outpatient mental health services at least three days before the
date of a hearing that may result in the court ordering the child to
receive court-ordered outpatient mental health services, as
required by Section 574.012, Health and Safety Code; and
(4) conduct the hearing in accordance with Subchapter
C, Chapter 574, Health and Safety Code.
(b) After conducting a hearing under this section and with
consideration given to the least restrictive appropriate setting
for treatment of the child and to the parent's, managing
conservator's, or guardian's availability and willingness to
participate in the treatment of the child [Subsection (a)(2)], the
juvenile court shall:
(1) if the criteria for court-ordered mental health
services under Section 55.05(a) or (b) [574.034 or 574.0345, Health
and Safety Code,] are satisfied, order temporary inpatient or
outpatient mental health services; or
(2) if the criteria for court-ordered mental health
services under Section 55.05(c) or (d) [574.035 or 574.0355, Health
and Safety Code,] are satisfied, order extended inpatient or
outpatient mental health services.
(c) On receipt of the court's order for inpatient mental
health services, the Health and Human Services Commission shall
identify a facility and admit the child to the identified facility.
(d) If the child is currently detained in a juvenile
detention facility, the juvenile court shall:
(1) order the child released from detention to the
child's home or another appropriate place;
(2) order the child detained or placed in an
appropriate facility other than a juvenile detention facility; or
(3) conduct a detention hearing and, if the court
makes findings under Section 54.01 to support further detention of
the child, order the child to remain in the juvenile detention
facility subject to further detention orders of the court.
Sec. 55.67 [55.41]. [COMMITMENT] PROCEEDINGS IN JUVENILE
COURT FOR CHILD FOUND UNFIT TO PROCEED OR LACKING RESPONSIBILITY
FOR CONDUCT DUE TO [CHILDREN WITH] INTELLECTUAL DISABILITY. (a) If
the juvenile court initiates [commitment] proceedings under
Section 55.40(1) or 55.59(1), the prosecuting attorney may file
with the juvenile court an application for an interdisciplinary
team report and recommendation that the child is in need of
long-term placement in a residential care facility, under Section
593.041, Health and Safety Code. The juvenile court shall:
(1) set a date for a hearing and provide notice as
required by Sections 593.047 and 593.048, Health and Safety Code;
and
(2) conduct the hearing in accordance with Sections
593.049-593.056, Health and Safety Code.
(b) After conducting a hearing under this section and with
consideration given to the least restrictive appropriate setting
for services for the child and to the parent's, managing
conservator's, or guardian's availability and willingness to
participate in the services for the child [Subsection (a)(2)], the
juvenile court may order residential intellectual disability
services for the child if the [commitment of the child to a
residential care facility if the commitment] criteria under Section
55.06 [593.052, Health and Safety Code,] are satisfied.
(c) On receipt of the court's order, the Health and Human
Services Commission [Department of Aging and Disability Services or
the appropriate community center] shall identify a residential care
facility and admit the child to the identified [a residential care]
facility.
(d) If the child is currently detained in a juvenile
detention facility, the juvenile court shall:
(1) order the child released from detention to the
child's home or another appropriate place;
(2) order the child detained or placed in an
appropriate facility other than a juvenile detention facility; or
(3) conduct a detention hearing and, if the court
makes findings under Section 54.01 to support further detention of
the child, order the child to remain in the juvenile detention
facility subject to further detention orders of the court.
SECTION 21. Sections 55.39, 55.42, 55.57, 55.58, 55.60, and
55.61, Family Code, are repealed.
SECTION 22. The changes in law made by this Act apply only
to a juvenile court hearing or proceeding that commences on or after
the effective date of this Act. A juvenile court hearing or
proceeding that commences before the effective date of this Act is
governed by the law in effect on the date the hearing or proceeding
commenced, and the former law is continued in effect for that
purpose.
SECTION 23. This Act takes effect September 1, 2023.