CHAPTER 591. GENERAL PROVISIONS

State Codes and Statutes

Statutes > Texas > Health-and-safety-code > Title-7-mental-health-and-mental-retardation > 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.

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.

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.

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.

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.

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;

(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.

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.

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.

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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