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mental health
COURSE DIRECTOR ALYSE FERGUSON
MENTAL HEALTH SEMINAR SEMINAR INFORMATION Date Location Course Director Total CLE Hours:
February 3, 2022 Holiday Inn Austin Midtown |6000 Middle Fiskville Road, Austin, Texas Alyse Ferguson and Rick Wardroup 6.0 Ethics: 1.0
Thursday, February 3, 2022 Time
CLE
Daily CLE Hours: 6.0 Ethics: 1.0 Topic
Speaker
8:00 am
Registration/Continental Breakfast
8:30 am
Opening Remarks
Alyse Ferguson and Rick Wardroup
A $3300 Quick Trip to the Jail: Communicating with Your Client
Dr. Trina Bivens
8:45 am
1.5
10:15 am 10:30 am
Break 1.0
11:30 am 11:45 am
Chris Sailer
Lunch Line 1.0
12:45 pm
Lunch Presentation: Eliminate the Wait: What Can You Do To Assist Your Client
Alyse Ferguson
Break
1:00 pm
1.0
2:00 pm
1.5 Ethics
3:30 pm
Developing Law: Leveraging Brain Science to Achieve Better Outcomes for Young Clients
Fit To Proceed-Examinations
Dr. Robert Lackey
Navigating Chapter 55 and your Juvenile Clients
Bill Cox
Adjourn
TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
Mental Health Austin Table of Contents
-Speaker
Topic February 3, 2022
Dr. Trina Bivens Chris Sailer Alyse Ferguson Dr. Robert Lackey Bill Cox
A $3300 Quick Trip to the Jail: Communicating with Your Client Developing Law: Leveraging Brain Science to Achieve Better Outcomes for Young Clients Eliminate the Wait: What Can You Do To Assist Your Client Fit To Proceed-Examinations Navigating Chapter 55 and your Juvenile Clients
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
Mental Health
February 3, 2022 Holiday Inn Austin Midtown 6000 Middle Fiskville Rd. Austin, TX 78752
Topic: A $3300 Quik Trip to the Jail: Communicating with Your Client Speaker:
Dr. Trina Bivens (972) 547-5296 Phone trina.bivens@wellpath.us
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
Mental Health
February 3, 2022 Holiday Inn Austin Midtown 6000 Middle Fiskville Rd. Austin, TX 78752
Topic: Developing Law: Leveraging Brain Science to Achieve Better Outcomes for Young Clients Speaker:
Chris Sailer
2601 Eagle St Houston, TX 77004 (615) 579-2720 Phone sailercj@utexas.edu
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
Mental Health
February 3, 2022 Holiday Inn Austin Midtown 6000 Middle Fiskville Rd. Austin, TX 78752
Topic: Eliminate the Wait: What Can You Do To Assist Your Client Speaker:
Alyse Ferguson 2100 Bloomdale Rd Ste 20209 McKinney, TX 75071 (214) 491-4805 Phone aferguson@co.collin.tx.us
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
Mental Health
February 3, 2022 Holiday Inn Austin Midtown 6000 Middle Fiskville Rd. Austin, TX 78752
Topic: Fit To Proceed-Examinations Speaker:
Dr. Robert Lackey spartanconsulting@charter.net
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
Mental Health
February 3, 2022 Holiday Inn Austin Midtown 6000 Middle Fiskville Rd. Austin, TX 78752
Topic: Fit To Proceed-Examinations Speaker:
Bill Cox
6600 Burciaga Dr El Paso, TX 79912 (512) 936-6994 Phone wcox@tidc.texas.gov
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Family Code Chapter 55: A Practical User’s Guide Navigating: Involuntary Commitments, Fitness To Proceed, and Lack of Responsibility because of Mental Illness Or Intellectual Disability In the Juvenile Delinquency System
Presented February 3, 2022 Texas Criminal Defense Lawyer’s Association Mental Health Seminar Austin, Texas
William R. “Bill” Cox El Paso County Public Defender’s Office
Introduction to Juvenile Mental Illness Before any discussion of the issues involved with juvenile fitness to proceed or lack of responsibility, this paper would be remiss not to provide some context about the presence of mental illness among young people in the juvenile delinquency system. Estimates from the National Alliance on Mental Illness (NAMI) identify seventy percent of the children in the juvenile system with at least one mental health disorder and twenty percent with significant disabilities due a serious mental illness. While only a small portion of these youth’s impairments rise to the level of preventing fitness to stand trial or establishing lack of responsibility, the presence of mental health issues in nearly three-quarters of the youth we serve illustrates how significant mental health issues are in the Juvenile Justice System. The effects of mental illness and intellectual disability on youth are further compounded by the fact that mental illness and/or intellectual disability proceedings are one of the most infrequent and least understood areas of juvenile law. Before beginning mental health proceedings, counsel must be familiar with the terminology and issues of Chapter 55. Mental Illness An illness, disease, or condition, other than epilepsy, dementia, substance abuse, or intellectual deficiency, that: (a) substantially impairs a person's though, perception of reality, emotional process, or judgement; or (b) grossly impairs behavior as demonstrated by recent disturbed behavior. Tex. Health & Safety Code § 571.003(14)(West). Intellectual Disability (ID) (formerly called Mental Retardation) Significantly sub-average general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period. Tex. Health & Safety Code § 591.003(7a-a)(West). Practice Tip: By definition all juvenile are “in their developmental period” (under age 18), and as such, diagnosis as having a pervasive developmental disorder in psychological/psychiatric reports probably qualifies as having intellectual disability. While the terms mental illness and intellectual disability provide general parameters for the basic issues addressed by Chapter 55, there are a number of other terms with which counsel needs to be familiar. The most helpful reference when dealing with mental health is the DSM-5; (the full name is the Diagnostic and Statistical Manual of Mental Disorders, 5th Revision), published by the American Psychiatric Association. The DSM-5 provides descriptions, characteristics, and diagnostic information for the recognized mental disorders, its structure differs from diagnostic information developed under the DSM-IV, which used a multi-axis system. Most notably, the
DSM-5 no longer contains the GAF, or Global Assessment of Functioning, which measured the severity of an individual’s symptoms. In place of the GAF, mental health practitioners are moving to separate assessments of severity and disability. The proceedings for juveniles with mental illness and intellectual disability are similar (and in some cases identical), however there are differences, and the two are governed by different sections of Chapter 55 of the Family Code. Because of these differences practitioners who handle both criminal law and juvenile law need to review Chapter 55 prior to handling juvenile mental health matters as there are some significant differences in criminal (adult) and juvenile procedures. In addition to the authority contained in Chapter 55 of the Family Code, Title 7 of the Texas Health and Safety Code (Subtitles C and D) also governs juvenile mental illness/intellectual disability proceedings. Once counsel has determined that a Chapter 55 issue or issues is present, there are three options:
Suspect Client Has MH/ID Issues Chapter B Child Has Mental Illness (Involuntary Commitment)
Chapter C Unfit to Proceed Because of MH/ID (Incompetent)
Chapter D Lack of Responsibility Because of MH/ID (Insane)
While proceedings under Chapter B and C are similar, both focused on the present mental state of the juvenile, Chapter D examines the mental state of the juvenile at the time of the alleged offense. The remainder of this paper is divided into three sections, one for each of the three above chapters to provide a step-by-step guide for practitioners.
Child with Mental Illness (Involuntary Commitment) Chapter 55 - Chapter B (§ 55.11 through § 55.19) Proceedings under Chapter 55, Chapter B are relatively unique, essentially amounting to involuntary commitment for juveniles. While proceedings under Chapters C and D have similar versions in criminal law (competency and insanity respectively), there is not a similar provision for Chapter B. All that is required to proceed under Chapter B is that the child has a mental illness and meets the commitment criteria of the Texas Health and Safety Code, Title 7, Subchapter C. There is no requirement that the child be unfit to proceed or lack responsibility because of mental illness/intellectual disability. While it is not titled as such, Chapter B is, in effect, involuntary commitment for youth in the juvenile justice system. When the issue of mental illness is raised by a party (either prosecution or defense), the juvenile court determines if there is probable cause to believe the child has mental illness. 1 The probable cause determination may be based on the motion raising the issue, any supporting documents, counsel's statements, witness testimony, and the Court's observations of the child. 2 If probable cause is found, then proceedings are stayed and an examination is ordered under § 51.20 which must include the expert's opinion on whether the child has a mental illness and if the child meets Title 7, Subchapter C commitment criteria. 3 Note that examination is controlled by a section of Chapter 51 of the family code dealing with Physical or Mental Examinations. In addition to the required elements of the examination, the court can also order the report include an opinion on the child's fitness to proceed. 4 Examinations require a disinterested expert to perform the examination. Note than an expert can include: • Physician; • Psychiatrist; or • Psychologist However the expert must also be qualified by education and clinical training in mental health or intellectual disability and experienced in forensic evaluation to determine whether the child has a mental illness. Further if fitness to proceed is part of the ordered examination the requirements of Chapter 46B of the Code of Criminal Procedure must also be met. 5 If, after the examination, there is reason to believe that child has a mental illness, then the probation department is required to refer the child to the local MH authority for evaluation and services, unless the petition has already been filed. 6
Tex. Family Code Chapter 55, § 55.11 (a). Tex. Family Code Chapter 55, § 55.11 (a) (1)-(2). 3 Tex. Family Code Chapter 55, § 55.11 (b). 4 Tex. Family Code Chapter 55, § 55.11 (b) 5 Tex. Family Code Chapter 51, § 51.20 (a) 6 Tex. Family Code Chapter 51, § 51.20 (b) 1 2
After the evaluation report is received, if the juvenile court determines there is evidence of mental illness and the child meets commitment criteria, commitment proceedings are begun, 7 otherwise the stay is dissolved, and the case proceeds normally. 8 With commitment proceedings the juvenile court may either hear the case itself pursuant to § 55.13 or refer the case to an appropriate court under § 55.14. 9 Proceeding in front of the juvenile court either party may file an application for court-ordered mental health services, also known as commitment. • Hearing is governed by the Health and Safety Code; • Burden of proof is on the moving party • Court appoints physicians to complete certificates of medical examination for mental illness. 10 Again, the Health and Safety Code determines how the case proceeds, § 574.034 defines the requirements for temporary mental health services, and § 574.035 lists those for extended mental health services. 11 If the juvenile court refers the commitment proceedings, then the filings on the child's mental illness are sent to the clerk of the receiving office (these documents constitute an application for mental health services) as well as to the receiving prosecuting office. If the child is detained, then the child must be released from detention, transferred to an appropriate place, or kept in detention if no appropriate place is available. 12 If the case is referred to another court, that court is required to notify the juvenile court in writing if temporary or extended mental health services are ordered. 13 Similarly, the court receiving the referral is required to notify the juvenile court is services are not ordered. 14 After commitment, the Health and Safety Code governs care, treatment, and release, except for the following: 15 • Orders for services expire 120 days after child's 18th Birthday16 • At least 10 days before discharge, facility administrator must notify committing court by certified mail of intent to discharge. 17
Tex. Family Code § 55.11 (c) (1) Tex. Family Code § 55.11 (c) (2) 9 Tex. Family Code § 55.12 10 Tex. Family Code § 55.13 (a) - (c) 11 Tex. Family Code § 55.13 (d) 12 Tex. Family Code § 55.14 13 Tex. Family Code § 55.16 (a) 14 Tex. Family Code § 55.17(a) 15 Tex. Family Code § 55.15 16 Tex. Family Code § 55.15 (1) 17 Tex. Family Code § 55.15 (2) 7 8
The juvenile court is required to stay the proceedings if a child is ordered to receive either temporary or extended mental health services. 18 If the child not ordered to receive either type of mental health services, then the stay is listed, and the juvenile case proceeds. 19 If a child is released from treatment before turning 18, the court can dismiss the case, or lift the stay and proceed with the case. 20 If the child:
• • • • •
Has not been adjudicated; Has a determinate sentencing charge Is still committed on 18th birthday Case is transferred to adult court, for proceedings under Chapter 46B of the Code of Criminal Procedure If competency is regained as an adult, punishment is limited to maximum possible as a juvenile
Tex. Family Code § 55.16 (b) Tex. Family Code § 55.17 (b) 20 Tex. Family Code § 55.18 18 19
Child Unfit To Proceed Chapter 55 - Chapter C (§ 55.31 through § 55.45) Note:
• • •
This chapter deals with unfitness (incompetence) because of both mental illness and intellectual disability. Raising fitness issues does not bar legal objections to juvenile court proceedings if they do not require the child's personal participation. 21 Like the issues in Chapter B, Unfitness to proceed is raised and ruled upon preadjudication.
A child who cannot assist in his/her own defense and/or who doesn't understand the proceedings against him/her shall not be tried, certified, or modified. Either party may raise the issue of fitness to proceed, triggering a probable cause evaluation by the court. In evaluating whether there is probably cause the court may consider the motion, supporting documents, statements of counsel, witness testimony, and its observations of the juvenile. If probable cause is found, the proceedings are stayed, and an examination is ordered pursuant to § 51.20. The examination must include expert opinion on unfitness to proceed as the result of mental illness/intellectual disability. 22 Examinations require a disinterested expert to perform the examination. Note than an expert can include: • Physician; • Psychiatrist; or • Psychologist However the expert must also be qualified by education and clinical training in mental health or intellectual disability and experienced in forensic evaluation to determine whether the child has a mental illness. Further if fitness to proceed is part of the ordered examination the requirements of Chapter 46B of the Code of Criminal Procedure must also be met. 23 If, after the examination, there is reason to believe that child has a mental illness, then the probation department is required to refer the child to the local MH/ID authority for evaluation and services, unless the petition has already been filed. 24 After the examination reports are received and juvenile court determines evidence exists to support unfitness, a hearing is held under § 55.32, otherwise the stay is lifted and juvenile proceedings continue. 25 The Fitness Hearing: Tex. Family Code § 55.32 (g) Tex. Family Code § 55.31 (a) - (c) 23 Tex. Family Code Chapter 51, § 51.20 (a) 24 Tex. Family Code Chapter 51, § 51.20 (b) 25 Tex. Family Code Chapter 55, § 55.31 21 22
Issue of unfitness to proceed because of mental illness or intellectual disability is decided at a separate hearing; 26 • Issue decided at bench hearing unless juvenile request jury at least 10 days before hearing; 27 • Standard is preponderance of the evidence. 28 If the child is found to be fit to proceed, the stay is lifted; 29 if found unfit, proceedings continue to be stayed and proceedings are held pursuant to § 55.33. 30 •
Regardless of whether the unfitness is due to mental illness or intellectual disability, a commitment for up to 90 days is required. 31 There are three placement options: • Placement with the Texas Department of State Health Services (DSHS) for persons with mental illness or with the Texas Department of Aging and Disability Services (DADS) for persons with intellectual disabilities (DSHS and DADS are the successor agencies to the Texas Department of Mental Health and Mental Retardation) 32 • In a private psychiatric inpatient facility 33 • On application of parent or guardian • Facility administrator must agree in writing • An outpatient setting if the court finds it suitable 34 If the unfitness stems from intellectual disability, note that the legislature amended Tex. Family Code § 55.33 (a) (1) - (2) to permit outpatient treatment in addition to placement with the Texas Department of Aging and Disability Services (DADS), or a private inpatient facility is available. (Prior to the amendment Chapter 55 did not permit outpatient treatment for youth who are unfit to proceed with only an intellectual disability diagnosis. Note: If funds are specifically budgeted for it, the government can be ordered to pay the costs of placement in a private psychiatric facility. 35 Orders from the court are required to transport the juvenile to and from inpatient treatment facilities. The default is for the probation department or sheriff to provide transportation, however if the child is not picked up by either by the 11th day after court's order for the child's return, then the facility is required to transport the child at the County's expense. 36
Tex. Family Code Chapter 55, § 55.32 (b) Tex. Family Code Chapter 55, § 55.32 (c) 28 Tex. Family Code, § 55.32 (d) 29 Tex. Family Code, § 55.32 (e) 30 Tex. Family Code § 55.32 (f) 31 Tex. Family Code § 55.33 32 Tex. Family Code § 55.33 (a) (1) (A) 33 Tex. Family Code § 55.33 (a) (1) (B) 34 Tex. Family Code § 55.33 (a) (2) 35 Tex. Family Code § 55.33(b) 36 Tex. Family Code § 55.34 26 27
As part of the commitment ordered under § 55.34, the court is required to order the probation department to send copies of all relevant information in its possession to the treatment provider. 37 The facility's report is due to the court by the 75th day after the commitment order, and must describe the treatment provided, and the facility director's opinion of the child's competency. 38 The court then provides a copy of the report to prosecution and defense counsel. 39 If the report indicates the child to be fit to proceed, the court is required to find the child fit, unless defense counsel objects in open court or files a written objection by the 2nd day after receiving a copy of the report. 40 If a written objection is made, a fitness hearing must be held, again this is a bench hearing unless a jury is requested. 41 If the child is found fit to proceed, the stay is lifted and proceedings continue normally; 42 if the child is found unfit a commitment hearing must be held. 43 Commitment Proceedings: Note: At this point the procedures for commitment because of mental illness and intellectual disability become separate: §§55.37 through 55.39 govern mental illness while §§ 55.40 through 55.42 apply to intellectual disability.
Mental Illness Commitments Report Child Unfit Due To Mental Illness Juvenile Court Holds Commitment Hearing § 55.37 (1)
Juvenile Court Refers To Appropriate Court § 55.37 (2)
Proceedings Under § 55.38
Proceedings Under § 55.39
Tex. Family Code § 55.35 (a) Tex. Family Code § 55.35 (b) 39 Tex. Family Code § 55.35 (c) 40 Tex. Family Code § 55.36 (a) 41 Tex. Family Code § 55.36 (b) 42 Tex. Family Code § 55.36 (c) 43 Tex. Family Code § 55.36 (d) 37 38
If the child is unfit to proceed because of mental illness, and meets the commitment requirements of Chapter 574 of the Health and Safety Code, the court may either hold a commitment hearing or refer the matter to an appropriate court. 44 For proceedings in juvenile court, the prosecutor files the application for mental health services under the Health and Safety Code (Chapter 574.001). Based on the evidence presented, the court orders either temporary or extended mental health services. 45 If the case is being referred, then the documentation is forwarded to the receiving court and prosecuting office. The child may be released to home detention, transferred to an appropriate placement, or kept in detention. 46 The standard of care and treatment is defined by Subtitle C, Title 7 of the Health and Safety Code, with the exception of requiring notice by certified mail from the facility administrator to the committing court 10 days before the juvenile is released. 47
Intellectual Disability Commitments Report Child Unfit Due To Intellectual Disability Juvenile Court Holds Commitment Hearing § 55.40 (1)
Juvenile Court Refers To Appropriate Court § 55.40 (2)
Proceedings Under § 55.41
Proceedings Under § 55.42
The procedures for intellectual disability are very similar to mental illness, however they are controlled by a different chapter of the Health and Safety Code. If the child is unfit to proceed because of intellectual disability, and meets the commitment requirements of Chapter 593 of the Health and Safety Code, the court may either hold a commitment hearing or refer the matter to an appropriate court. 48 Tex. Family Code § 55.37 Tex. Family Code § 55.38 46 Tex. Family Code § 55.39 47 Tex. Family Code § 55.45 (a) 48 Tex. Family Code § 55.40 44 45
For proceedings in juvenile court, the prosecutor files the application for mental health services under the Health and Safety Code (Chapter 593.041). Based on the evidence presented the court orders commitment to a residential care facility if 593.052 of the Health and Safety Code is met. 49 The Texas Department of Aging and Disability Services (DADS) is required to accept the juvenile if placement is ordered. 50 If the case is being referred, then the documentation is forwarded to the receiving court and prosecuting office. The child may be released to home detention, transferred to an appropriate placement, or kept in detention. 51 The standard of care and treatment is defined by Subtitle C, Title 7 of the Health and Safety Code, with the exception of requiring notice by certified mail from the facility administrator to the committing court 10 days before the juvenile is released. 52 Restoration of Fitness: The prosecutor may move for a restoration hearing if: 53 • The child is found unfit and • The child is not ordered to receive inpatient services • The child is not committed to residential treatment • The child is not ordered into outpatient services • The child is released from the above before his/her 18th birthday The hearing is to the court (no jury); 54 the burden is on the movant (usually the State) by a preponderance of the evidence. 55 If the motion is successful, the stay is dissolved, otherwise the motion is dismissed. 56
Tex. Family Code § 55.41 Tex. Family Code § 55.41 (c) 51 Tex. Family Code § 55.42 52 Tex. Family Code § 55.45 (b) note that a new section was added to 55.45 by the 2007 Legislature which reads as follows: (c ) If the referred child, as described in Subsection (b), is alleged to have committed an offense listed in Section 3g, Article 42.12, 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 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 the 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 section without the express approval of the trial court is punishable by contempt. 49 50
Tex. Family Code § 55.43 Tex. Family Code § 55.43 (c) 55 Tex. Family Code § 55.43 (d) 56 Tex. Family Code § 55.43 (e) - (f) 53 54
If the child is charged with a determinate sentencing offense and is still committed on his/her 18th birthday, the juvenile court is required to transfer the case to district court for proceedings under Chapter 46B of the Code of Criminal Procedure. 57
57
Tex. Family Code § 55.44
Child Lacks Responsibility For Conduct Chapter 55 - Chapter D (§ 55.51 through § 55.61) Note:
• •
This chapter deals with both lack of responsibility (insanity) because of both mental illness and intellectual disability. Unlike child with mental illness and unfitness to proceed, lack of responsibility is a defensive issue presented to the judge or jury at the adjudication hearing. 58
If the child lacks substantial capacity to either appreciate the wrongfulness of his/her conduct or to confirm his/her conduct to the requirements of the law, he/she is no legally responsible for his/her conduct. 59 Either party may raise the issue of lack of insanity before the Court; once the issue is raised an examination is ordered under 51.20 which must include the expert’s opinion as to whether the child lacks responsibility because of mental illness or intellectual disability. 60 Examinations require a disinterested expert to perform the examination. Note than an expert can include: • Physician; • Psychiatrist; or • Psychologist However the expert must also be qualified by education and clinical training in mental health or intellectual disability and experienced in forensic evaluation to determine whether the child has a mental illness. 61 At the adjudication hearing, lack of responsibility must be proven by a preponderance of the evidence, 62 and a special issue must be submitted in the charge regarding whether the child lacks responsibility and indicate whether it is due to mental illness or intellectual disability. 63 A finding of lack of responsibility bars any further proceedings against the child for the charges, other than the commitment process. 64 After a finding of lack of responsibility, the court is required to order the child be evaluated, regardless of whether the unfitness is due to mental illness or intellectual disability. 65 If the unfitness stems from mental illness there are three placement options: Tex. Family Code § 55.51 (c) Tex. Family Code § 55.51 (a); Note according to W.D.A. v. State835 S.W.2d 277 (Tex. App. – Waco, 1992, no writ), the Family Code definition of insanity is used; not the Penal Code definition. 60 Tex. Family Code, § 55.51 (b) 61 Tex. Family Code Chapter 51, § 51.20 (a) 62 Tex. Family Code , § 55.51 (d) 63 Tex. Family Code, § 55.51 (e) 64 Tex. Family Code, § 55.51 (g) 65 Tex. Family Code § 55.52 58 59
• • •
Placement with the Texas Department of State Health Services (DSHS) 66 In a private psychiatric inpatient facility 67 • On application of parent or guardian • Facility administrator must agree in writing An outpatient setting if the court finds it suitable 68
If the unfitness stems from intellectual disability, then only placement with Texas Department of Aging or Disability (DADS) or a private inpatient facility is available. 69 Note: If funds are specifically budgeted for it, the government can be ordered to pay the costs of placement in a private psychiatric facility. 70 Orders from the court are required to transport the juvenile to and from inpatient treatment facilities. The default is for the probation department or sheriff to provide transportation, however if the child is not picked up by either by the 11th day after court's order for the child's return, then the facility is required to transport the child at the County's expense. 71 As part of the commitment ordered under § 55.34, the court is required to order the probation department to send copies of all relevant information in its possession to the treatment provider. 72 The facility's report is due to the court by the 75th day after the commitment order, and must describe the treatment provided, and the facility director's opinion of the child is mentally ill or mentally retarded. 73 The court then provides a copy of the report to prosecution and defense counsel. 74 If the child does not have a mental illness or intellectual disability, the juvenile is released, unless the case involved a determinate sentencing charge and an objection is made by the State within two days of receiving the report. 75 Should the report indicate the child meets the commitment requirements of the Health and Safety Code, two certificates of medical examination for mental illness (if applicable), must also be forwarded. 76 If an objection is filed, the state has the burden to prove the juvenile meets the requirements for a civil commitment under Subtitle C or D of the Health and Safety Code Title 7 by clear and convincing evidence and also suffers from mental illness or intellectual disability. 77
Tex. Family Code § 55.52 (a) (1) (A) Tex. Family Code § 55.52 (a) (1) (B) 68 Tex. Family Code § 55.52 (a) (2) 69 Tex. Family Code § 55.52 (a) (1) - (2) 70 Tex. Family Code § 55.52(b) 71 Tex. Family Code § 55.53 72 Tex. Family Code § 55.54 (a) 73 Tex. Family Code § 55.54 (b) 74 Tex. Family Code § 55.54 (c) 75 Tex. Family Code 55.55 (a) 76 Tex. Family Code § 55.56 77 Tex. Family Code § 55.55 (a) – (d). 66 67
Insanity Commitments Mental Illness Report Child Lacks Responsibility Due To Mental Illness Juvenile Court Holds Commitment Hearing § 55.56 (1)
Juvenile Court Refers To Appropriate Court § 55.56 (2)
Proceedings Under § 55.57
Proceedings Under § 55.58
The commitment procedure is very similar to that for unfitness and mental illness. If the child is unfit to proceed because of mental illness, and meets the commitment requirements of Chapter 574 of the Health and Safety Code, the court may either hold a commitment hearing or refer the matter to an appropriate court. 78 For proceedings in juvenile court, the prosecutor may file an application for mental health services under the Health and Safety Code (Chapter 574.001). Based on the evidence presented, the court orders either temporary or extended mental health services. 79 If the case is being referred, then the documentation is forwarded to the receiving court and prosecuting office. The child may be released to home detention, transferred to an appropriate placement, or kept in detention. 80 If the child is unfit to proceed because of mental illness, and meets the commitment requirements of Chapter 574 of the Health and Safety Code, the court may either hold a commitment hearing or refer the matter to an appropriate court. 81 For proceedings in juvenile court, the prosecutor files the application for mental health services under the Health and Safety Code (Chapter 574.001). Based on the evidence presented, the court orders either temporary or extended mental health services. 82 If the case is being referred, then the documentation is forwarded to the receiving court and prosecuting office. The child may be released to home detention, transferred to an appropriate placement, or kept in detention. 83
Tex. Family Code § 55.56 Tex. Family Code § 55.57 80 Tex. Family Code § 55.58 81 Tex. Family Code § 55.37 82 Tex. Family Code § 55.38 83 Tex. Family Code § 55.39 78 79
The standard of care and treatment is defined by Subtitle C, Title 7 of the Health and Safety Code, with the exception of requiring notice by certified mail from the facility administrator to the committing court 10 days before the juvenile is released. 84
84
Tex. Family Code § 55.45 (a)
Insanity Commitments Intellectual Disability Report Child Lacks Responsibility Due To Intellectual Disability Juvenile Court Holds Commitment Hearing § 55.59 (1)
Juvenile Court Refers To Appropriate Court § 55.59 (2)
Proceedings Under § 55.60
Proceedings Under § 55.61
The procedures for intellectual disability are very similar to mental illness, however they are controlled by a different chapter of the Health and Safety Code. If the child is unfit to proceed because of intellectual disability, and meets the commitment requirements of Chapter 593 of the Health and Safety Code, the court may either hold a commitment hearing or refer the matter to an appropriate court. 85 For proceedings in juvenile court, the prosecutor files the application for placement under the Health and Safety Code (Chapter 593.041). Based on the evidence presented the court orders commitment to a residential care facility if 593.052 of the Health and Safety Code is met. 86 The Texas Department of Aging and Disability Services (DADS) or other community center is required to accept the juvenile if placement is ordered. 87 If the case is being referred, then the documentation is forwarded to the receiving court and prosecuting office. The child may be released to home detention, transferred to an appropriate placement, or kept in detention. 88
Tex. Family Code § 55.60 Tex. Family Code § 55.60 (b) 87 Tex. Family Code § 55.60 (c) 88 Tex. Family Code § 55.61 85 86
Chapter 55 Issues Checklist First, is there a Chapter 55 Issue? (AKA Can you talk to the client and does he/she understand what is going on?) If there appears to be an issue consider the following questions: Part I -- (Short screening test) Can you have a coherent conversation with your client? Yes / No Does the Client understand the charges? Yes / No Does the Client understand the role of the prosecutor? Yes / No Does the Client understand the role of the judge? Yes/ No Does the Client understand your role (Defense Attorney)? If the answer to any of the above is "No", you may need to go through the full screening questions in Part II. Part II -- (Full screening) Mental Health History: Is there a history of mental health/intellectual disability issues? If so, is it a mental health history, intellectual disability history or both. What if any treatment(s) has the client received? (i.e. who were the treating physicians, social workers, therapists, etc; what medications have been prescribed, has the client been hospitalized for treatment or sent to a residential treatment center (RTC)) School History: Has the client had an ARDs (Admission, Review, and Dismissal hearings)? Is he/she in special education classes, if so which subjects? Be sure to get all of the client's school records-- this will probably require 2 or 3
subpoenas, one for academic records including achievement tests, one for counseling records, and a third for disciplinary records. Parental Questions: How well does the client understand concepts/assignments? NOTE:
If the answer is that he/she gets it, you just have to tell him or her 3-4 times, this may indicate an issue of fitness to proceed.
Is there a history of inhalant abuse? Is there anything of concern in client's developmental history, any accidents with head trauma, any illnesses with high fever, loss of conscientiousness, etc.? Detailed Conversation With Client: When talking to a client, be sure to test not only how client responds to individual questions and legal concepts, but also client's short term memory. For many clients, it will be clear as part of a regular interview, that the juvenile understands the charges again him or her and is able to discuss the charges with you and to prepare a defense. For others, it may be less clear and will require specific probing questions to be sure fitness to proceed is assessed, this is especially true with juveniles who have had prior contact with the mental health system. With an individual who has had prior mental health treatment, especially treatment including competency restoration, practitioners need to ask the child to explain the role of a judge, prosecutor, lawyer in their own words. Often those who have been through competency restoration treatments, will repeat the textbook definition of an attorney, judge, etc., however they may have no understanding of what the words in the memorized definition actually mean. Practice Tip: The amount of time necessary to test a client’s short term memory will vary with the client and the nature of his or her issues. In some cases, the damage, especially from inhalant abuse will be so profound that a period of 5 minutes is enough, for other clients short term memory deficits may only appear after the passage of 30 minutes or more. It is important to identify the amount of time at which short term memory deficits appear to provide the mental health professionals insight into those issues so that can be adequately addressed during the evaluation and in the professionals’ reports to the court. This checklist’s purpose is to help Juvenile Law Practitioners to determine if there may be issues with a child’s mental health or developmental level (intellectual disability) which need to be evaluated by a mental health professional. It is not intended to replace an evaluation by a qualified mental health professional if there are any concerns regarding whether a child is fit to proceed.
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OUR HISTORY
Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases. From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education. TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas. TCDLA continues to foster these relationships and develop additional affiliations. As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.
The Texas Criminal Defense Lawyers Association strives to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are being made to curtail these rights; to encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance; and through this cooperation, education and assistance, to promote justice and the common good.
The Criminal Defense Lawyers Project strives to improve the competency of defense lawyers through designing and promoting a series of continuing legal education seminars and producing legal publications available at low cost to attorneys throughout the state.
The Texas Criminal Defense Lawyers Educational Institute is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staffs.
For more information about the association, or to learn about upcoming CLE seminars and events, please visit www.tcdla.com.
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TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers. New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code. Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments. With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form). Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported. The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission. Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements. Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx
New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure. In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county. As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process. Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate. The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study. Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases. While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases. The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions. To learn more about this research please visit the study website at http://texaswcl.tamu.edu. WWW.TIDC.TEXAS.GOV
MARCH 2014
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