IR11 — Legal Rights Of Persons With Mental Retardation Guaranteed By The Texas Persons With Mental Retardation Act

May, 1995

The Persons with Mental Retardation Act (MRPA) is a state law that guarantees basic rights to all Texans with mental retardation (see section A below). Clients of the Texas Department of Mental Health and Mental Retardation (TDMHMR) system have all of the basic rights and several additional rights (see section B below). Residents of TDMHMR or community Mental Health/Mental Retardation (MHMR) center 24-hour residential facilities have rights in addition to those rights guaranteed to clients (see section C below).

The rights of persons with mental retardation can be lawfully restricted in only two ways: (1) by court appointment of a guardian, and (2) by court ordered commitment to a mental retardation residential facility. If the person has a guardian, the guardian may exercise many of these rights for the person. If the person has been court committed, the superintendent (or his designated agent) may exercise some of these rights. Certain of these rights can be exercised by a person's guardian; others can never be exercised by anyone but the person with mental retardation. For more detail on these rights, you may want to contact Advocacy, Incorporated.

Persons with mental retardation also have many other rights established under the state and federal constitutions and laws. The rights listed below are those spelled out in the MRPA.

A. Basic Bill of Rights for All Citizens with Mental Retardation

All Texans with mental retardation have the following rights:

  1. All rights guaranteed under the constitutions and the laws of the United States and the State of Texas, including but not limited to the right to vote, the right to marry, the right to travel, the right to freedom of speech and religion, etc.;
  2. The right to protection from exploitation and abuse wherever the person may be;
  3. The right to the least restrictive living setting appropriate to the person's needs and abilities;
  4. The right to education regardless of degree of mental retardation, age, disability or residence;
  5. The right to equal opportunities in employment; to be considered for employment based upon actual job-related abilities rather than be rejected solely because of mental retardation;
  6. The right to equal housing opportunities and to be free of discrimination in housing based solely on mental retardation;
  7. The right to treatment and habilitative services based upon the person's needs to maximize capabilities and enhance abilities to cope with the environment, within the limits imposed by resources available to TDMHMR;
  8. The right to have habilitation and treatment skillfully, safely and humanely administered with full respect for the dignity and personal integrity of the person;
  9. The right to a formal determination of mental retardation made by a physician or psychologist licensed in Texas or certified by TDMHMR;
  10. The right to contest the findings in the determination of mental retardation;
  11. The right to be presumed competent until declared incompetent by a court of law;
  12. The right to due process in guardianship proceedings;
  13. The right to fair compensation for labor; and
  14. The right to confidentiality of records and access to records.

B. Additional Rights of Clients

Persons receiving mental retardation services from TDMHMR and from community MHMR centers are called clients and have the following rights in addition to those spelled out in section A above:

  1. The right to live in the least restrictive habilitation setting appropriate to the person's needs;
  2. The right to be treated and served in the least intrusive manner appropriate to the person's needs;
  3. The right to a written individualized habilitation plan, developed by appropriate specialists;
  4. The right to participate in planning the treatment and habilitation and to be informed in writing of progress at reasonable intervals;
  5. The right to withdraw from voluntary mental retardation services;
  6. The right to be free from mistreatment, neglect and abuse by service providers;
  7. The right to be free from unnecessary and excessive medication; including the right to be free from use of medication as a punishment, for the convenience of the staff, as a substitute for a rehabilitation program, or in quantities that interfere with the client's habilitation program;
  8. The right to submit grievances to the public responsibility committee; and
  9. The right to be informed of these rights guaranteed by the MRPA upon admission for mental retardation services.

C. Additional Rights of Residents

All residents of state schools and any other facility operated by TDMHMR, or a community MHMR residential care facility, have the following rights in addition to the rights spelled out in sections A and B above:

  1. The right to an interdisciplinary team (IDT) recommendation to a residential care facility prior to admission or commitment, except for brief emergency stays. The IDT findings and recommendations shall be provided in writing to the person with mental retardation;
  2. The right to participate in all IDT meetings;
  3. The right to prompt and adequate medical and dental care and treatment provided in a manner consistent with community medical and dental standards, and performed under the supervision of licensed doctors and dentists;
  4. The right to be free from unusual or hazardous treatment procedures, experimental research, organ transplantation, or nontherapeutic surgery for experimental research;
  5. The right to a normalized residential environment--one that resembles regular family homes;
  6. The right to a humane physical environment--one that is clean, free of odors, temperature controlled, etc.;
  7. The right to communication and visits, including personal visits, phone calls, and mail;
  8. The right to personal property, and to have personal property kept safe and secure;
  9. The right to an administrative hearing to challenge a proposed transfer or discharge, or to challenge a referral to a community placement; and
  10. The right to be the beneficiary of a trust up to the amount of $50,000 that is not to be considered the property of that person. No part of this $50,000 may be assessed by TDMHMR to pay for the support and maintenance of the person.

D. Rights of Persons with Mental Retardation in Commitment Proceedings

The MRPA also sets out the rights of a person with mental retardation who is the subject of an involuntary commitment proceeding:

  1. The right to notice of the commitment at least ten (10) days before the hearing. The notice must include the date, time, and place of the hearing, and a copy of the application for commitment;
  2. The right to representation at the hearing by an attorney who will be paid by the county if the individual cannot afford to pay;
  3. The right to present evidence and cross-examine witnesses;
  4. The right to be placed in a less restrictive setting instead of being committed, if an appropriate residential setting is available; and
  5. The right to appeal the court's decision.

No person can be committed to a TDMHMR facility unless an IDT recommends such placement during the six (6) months prior to the commitment hearing.

E. Conclusion

Persons with mental retardation are guaranteed a wide range of rights by the MRPA. The exact nature of the right may depend upon whether the individual is a TDMHMR client or a resident of a TDMHMR residential facility. Additional rights are guaranteed to persons with mental retardation by the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and other laws protecting the rights of persons with disabilities.

Residents of Intermediate Care Facilities for the Mentally Retarded (ICFs-MR) (including state schools for persons with mental retardation) have additional rights that are spelled out in Advocacy, Inc.'s handout, Legal Rights of Residents of Intermediate Care Facilities for the Mentally Retarded or Related Conditions (ICFs-MR/RC).

The MRPA does not require TDMHMR or community MHMR centers to serve every person with mental retardation. It allows TDMHMR to set priorities for service, so long as it makes all reasonable efforts consistent with available resources to establish various types of services providing quality care, treatment, education, and habilitation services.

Violations of the MRPA can be punished by criminal and civil penalties. Actions may be brought by the attorney general, district, or county attorneys. Individual lawsuits may also be brought.

If you believe your rights, or the rights of a friend or family member with mental retardation, have been violated, contact:

Office of Consumer Services and Rights Protection
Texas Department of Mental Health and Mental Retardation
P. O. Box 12668, Capitol Station
Austin, Texas 78711-2668
1-800-252-8154

or

Advocacy, Incorporated
1-800-315-3876 - Austin
1-800-880-2884 - Dallas
1-800-880-0821 - Houston
1-800-880-4456 - Lubbock
1-800-880-8401 - Pharr

or

1-800-252-9108 (Austin - 12:30-5 p.m.)
7800 Shoal Creek Boulevard, Suite 171-E
Austin, Texas 78757-1024
(512) 454-4816

If a person with a disability has been abused or neglected, contact:

Texas Department of Protective and Regulatory Services
P. O. Box 149030, Mail Code Y 940
Austin, Texas 78714-9030
1-800-252-5400

Advocacy, Incorporated's goal is to make each handout understandable by and useful to the general public. If you have suggestions on how this handout can be improved, please contact Advocacy, Inc. at the address and telephone number shown on Advocacy's home page or e-mail Advocacy, Inc. at infoai@advocacyinc.org. Thank you for your assistance. This handout is available in Braille and/or on audio tape upon request. Advocacy, Inc. strives to update its materials on an annual basis, and this handout is based upon the law at the time it was written. The law changes frequently and is subject to various interpretations by different courts. Future changes in the law may make some information in this handout inaccurate. The handout is not intended to and does not replace an attorney's advice or assistance based on your particular situation.