H.B. No. 3135

CONSENT TO VOLUNTARY SERVICES BY GUARDIAN OF MENTALLY RETARDED WARD; AGENCIES AS GUARDIANS

Bill Description

Governor Bush signed HB 3135 on June 17, 1997. HB 3135 becomes effective September 1, 1997.

HB 3135 amends Chapter 593, Health and Safety Code, concerning the consent to voluntary services by a guardian of the person of a mentally retarded ward.

HB 3135 also repeals Section 691 of the Probate Code -- the section which said that the court may not appoint the Texas Department of Mental Health and Mental Retardation, the Department of Protective and Regulatory Services, a community mental health and mental retardation center, or any other agency, public or private, as guardian except as a last resort. The most obvious construction of the repeal of Section 691 is that these agencies now may be appointed as guardian even if it is not the "last resort."

However, this reading is inconsistent with the House Public Health Committee Report on HB 3135 (see below), which seems to imply that repeal of this section assures that an agency will not be appointed in any event. The House Public Health Committee Report says this about HB 3135:

Major revisions in the Texas Probate Code regarding guardianship occurred in the 73rd Legislative session [1993]. Section 770 was amended to prohibit a guardian from voluntarily admitting an incapacitated person to a residential care facility operated by the Texas Department of Mental Health and Mental Retardation (TDMHMR), except for emergency care or respite services.

Provisions in the Persons with Mental Retardation Act governing access to mental retardation services, however, were not concurrently changed. This resulted in conflicting statutes, confusion, and misinterpretation of a guardian's authority.

Additionally there is concern about Section 691 of the Probate Code which contains provisions for TDMHMR, Community Mental Health and Mental Retardation Centers, the Department of Protective and Regulatory Services (DRS), and any other agency that is directly providing services, to be appointed guardian only as last resort. The appointment of a health service provider as legal guardian creates an inherent conflict of interest, as this person may consent for whatever services he or she feels are necessary for their ward.

PURPOSE

CSHB 3135 makes the provisions regarding ward commitment in the Persons with Mental Retardation Act consistent with Section 770, Texas Probate Code. CSHB 3135 also repeals Section 691, Texas Probate Code, regarding an agency as the legal guardian of last resort.



The mystery of whether the repeal of Section 691 makes it more likely to appoint a governmental agency as guardian or impossible to appoint a governmental agency as guardian is made deeper by SB 359. SB 359 consists of statutory changes affecting the Texas Department of Protective and Regulatory Services. It was signed by Governor Bush on June 19, 1997, and becomes effective September 1, 1997. (SB 359 was not tracked as a probate bill, so the text of and a summary of SB 359 is not available at this site.) As a throw-in to this lengthy bill, Section 700 of the Probate Code is amended to read as follows:

Sec. 700.  OATH OF GUARDIAN.

(a)  The guardian shall take an oath to discharge faithfully the duties of guardian for the person or estate, or both, of a ward.

(b)  A representative of the Department of Protective and Regulatory Services shall take the oath required by Subsection (a) of this section if the department is appointed guardian.



This change is consistent with the most obvious reading of the repeal of Section 691 -- that the ability of the probate court to appoint the agencies named in former Section 691 is no longer limited to cases of last resort. This is the most logical way to read SB 359 and HB 3135 together.

A more cynical explanation is that the two Departments (MHMR and Protective and Regulatory Services) each had their own legislative agendas and didn't bother to compare them. Thus, MHMR succeeded in getting Section 691 repealed, thinking that such action would eliminate the possibility of the agency being appointed guardian, while Protective and Regulatory Services got Section 700 amended in anticipation of its appointment as guardian.


Copyright 1997 by Glenn M. Karisch. This page was last revised on July 18, 1997.