HBA-ATS, NIK H.B. 3479 76(R)BILL ANALYSIS


Office of House Bill AnalysisH.B. 3479
By: Greenberg
Civil Practices
7/8/1999
Enrolled



BACKGROUND AND PURPOSE 

Persons in need of mental health services can often find themselves in
vulnerable positions that may impair their ability to think clearly or use
sound judgement.  In some cases, the situation calls for intervention from
a mental health care professional.  The duty of the mental health services
provider is to guide the patient or client (patient) to appropriate medical
or mental assistance and to discourage ongoing dependence on the mental
health care professional.  However, because of the imbalance of power
inherent in the provider and patient relationship, a patient can be
vulnerable to sexual exploitation by the professional in whom the patient
has placed his or her trust.  Prior to the 76th Legislature, the
relationship between the patient and the special officer for mental health
assignment was not covered under the Civil Practice and Remedies Code. 

H.B. 3479 provides certain mental health patients protection against sexual
exploitation by the health care providers in whom they place their trust by
expanding the definitions of mental health services provider and patient.
This bill also authorizes a patient, a former patient, or another person
acting on behalf of a patient or former patient to bring an action against
a governmental unit that is an employer of a mental health services
provider, including a special officer for mental health assignment, who
commits any conduct described by Section 81.002(1), (2), or (3), Civil
Practice and Remedies Code, in relation to the patient or former patient.
However, a patient, former patient, or person acting on behalf of a patient
or former patient is prohibited from bringing an action unless, 60 days
before the date that action is to be filed, the person notifies the
governmental unit in writing of its intention to bring an action.
Moreover, that person is prohibited from bringing suit if, before the 60th
day after the date the notice is provided under this section, the
governmental unit discharges the mental health services provider who
committed the conduct with respect to which the claim is filed. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Sections 81.001(2) and (3), Civil Practice and Remedies
Code, to redefine "mental health services provider" and "patient." 

SECTION 2.  Amends Chapter 81, Civil Practice and Remedies Code, by adding
Section 81.010, as follows: 

Sec. 81.010. INJUNCTIVE RELIEF AGAINST GOVERNMENTAL UNITS.  (a) Defines
"governmental unit." 

(b) Authorizes a patient, a former patient, or another person acting on
behalf of a patient or former patient to bring an action against a
governmental unit that is an employer of a mental health services provider,
including a special officer for mental health assignment, who commits any
conduct described by Section 81.002(1), (2), or (3), Civil Practice and
Remedies Code, in relation to the patient or former patient.  Authorizes
the patient or former patient to obtain an order requiring the governmental
unit to discharge the mental  health services provider who committed the
conduct, court costs, and reasonable attorney's fees, as determined by the
court.  

(c) Prohibits a patient, former patient, or person acting on behalf of a
patient or former patient from bringing an action unless, 60 days before
the date that action is to be filed, the person notifies the governmental
unit in writing of its intention to bring an action. Provides that the
notice must reasonably describe the facts giving rise to the claim.
Prohibits the person from bringing suit under Subsection (b) if, before the
60th day after the date the notice is provided under this section, the
governmental unit discharges the mental health services provider who
committed the conduct with respect to which the claim is filed. 

(d) Provides that governmental immunity to suit is waived and abolished to
the extent of the liability created by Subsection (b). 

SECTION 3.  Amends Section 22.011(c), Penal Code, by adding Subdivision
(4), to define "mental health services provider." 

SECTION 4. Effective date: September 1, 1999.

SECTION 5. (a) Provides that this Act applies to all actions commenced on
or after the effective date of this Act, or pending on that effective date
and in which the trial, or any new trial or retrial following motion,
appeal, or otherwise, begins on or after that effective date. 

(b) Provides that in an action commenced before the effective date of this
Act, a trial, new trial, or retrial that is in progress on the effective
date is governed by the law applicable to the trial, new trial, or retrial
immediately before the effective date, and that law is continued in effect
for that purpose. 

(c) Provides that in an action pending on that effective date and in which
the trial, or any new trial or retrial following motion, appeal, or
otherwise, begins on or after that effective date, the person bringing the
action is not required to provide notice under Section 81.010(c), Civil
Practice and Remedies Code, before pursuing relief under that section. 

SECTION 6.  Makes application of this Act as to Section 22.011, Penal Code,
prospective. 

SECTION 7. Emergency clause.