By: Moody H.B. No. 4212

A BILL TO BE ENTITLED

AN ACT

relating to procedures regarding defendants who are or may be persons with a mental illness or intellectual disability.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Article 16.22(a)(2), Code of Criminal Procedure, is amended to read as follows:

(2) The magistrate is not required to order the interview and collection of other information under Subdivision (1) if the defendant is no longer in custody or if the defendant in the year preceding the defendant's applicable date of arrest has been determined to have a mental illness or to be a person with an intellectual disability by the service provider that contracts with the jail to provide mental health or intellectual and developmental disability services, the local mental health authority, the local intellectual and developmental disability authority, or another mental health or intellectual and developmental disability expert described by Subdivision (1). A court that elects to use the results of that previous determination may proceed under Subsection (c).

SECTION 2. Article 17.04, Code of Criminal Procedure, is amended to read as follows:

Art. 17.04. REQUISITES OF A PERSONAL BOND. (a) A personal bond is sufficient if it includes the requisites of a bail bond as set out in Article 17.08, except that no sureties are required. In addition, a personal bond shall contain:

(1) the defendant's name, address, and place of employment;

(2) identification information, including the defendant's:

(A) date and place of birth;

(B) height, weight, and color of hair and eyes;

(C) driver's license number and state of issuance, if any; and

(D) nearest relative's name and address, if any; and

(3) except as provided by Subsection (b), the following oath sworn and signed by the defendant:

"I swear that I will appear before (the court or magistrate) at (address, city, county) Texas, on the (date), at the hour of (time, a.m. or p.m.) or upon notice by the court, or pay to the court the principal sum of (amount) plus all necessary and reasonable expenses incurred in any arrest for failure to appear."

(b) A personal bond is not required to contain the oath described by Subsection (a)(3) if:

(1) the magistrate makes a determination under Article 16.22 that the defendant has a mental illness or is a person with an intellectual disability, including by using the results of a previous determination under that article;

(2) the defendant is released on personal bond under Article 17.032; or

(3) the defendant is found incompetent to stand trial in accordance with Chapter 46B.

SECTION 3. Subchapter B, Chapter 45, Code of Criminal Procedure, is amended by adding Article 45.0214 to read as follows:

Art. 45.0214. DEFENDANT WITH MENTAL ILLNESS, INTELLECTUAL OR DEVELOPMENTAL DISABILITY, OR LACK OF CAPACITY. (a) In this article:

(1) "Caregiver" means a person, including a guardian, who is authorized by law, contract, or familial relationship to provide care to another person.

(2) "Defendant" includes a child as defined by Article 45.058(h).

(b) On motion by the state, the defendant, or a person who stands in a parental relation to the defendant or who acts as the defendant's caregiver, or on the court's own motion, a justice or judge shall determine whether probable cause exists to believe that a defendant, including a defendant with a mental illness or an intellectual or developmental disability:

(1) lacks the capacity to understand the proceedings in criminal court or to assist in the defendant's own defense; and

(2) is unfit to proceed.

(c) If the court determines that probable cause exists for a finding under Subsection (a), after providing notice to the state, the court may dismiss the complaint.

(d) A dismissal of a complaint under Subsection (c) may be appealed as provided by Article 44.01.

SECTION 4. Subchapter B, Chapter 45, Code of Criminal Procedure, is amended by adding Article 45.0241 to read as follows:

Art. 45.0241. ACCEPTANCE OF PLEA OF GUILTY OR NOLO CONTENDERE. Notwithstanding any other law, a justice or judge may not accept a plea of guilty or plea of nolo contendere under Article 45.022 or 45.023(a) unless it appears that the defendant is mentally competent and the plea is free and voluntary.

SECTION 5. Article 46B.009, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.009. TIME CREDITS. (a) A court sentencing a person convicted of a criminal offense shall credit to the term of the person's sentence each of the following periods for which the person may be confined in a mental health facility, residential care facility, or jail:

(1) any period of confinement that occurs pending a determination under Subchapter C as to the defendant's competency to stand trial; and

(2) any period of confinement that occurs between the date of any initial determination of the defendant's incompetency under that subchapter and the date the person is transported to jail following a final judicial determination that the person has been restored to competency.

(b) A court sentencing a person convicted of a criminal offense shall credit to the term of the person's sentence any period during which the person participated in an outpatient competency restoration program.

SECTION 6. Articles 46B.0095(c) and (d), Code of Criminal Procedure, are amended to read as follows:

(c) The cumulative period described by Subsection (a):

(1) begins on the later of:

(A) the date the initial order of commitment or initial order for outpatient competency restoration or treatment program participation is entered under this chapter; or

(B) the date competency restoration services actually begin; and

(2) in addition to any inpatient or outpatient competency restoration periods or program participation periods described by Subsection (a), includes any time that, following the entry of an order described by Subdivision (1)(A), the defendant is confined in a correctional facility, as defined by Section 1.07, Penal Code, or is otherwise in the custody of the sheriff during or while awaiting, as applicable:

(A) the defendant's transfer to:

(i) a mental hospital or other inpatient or residential facility; or

(ii) a jail-based competency restoration program;

(B) the defendant's release on bail to participate in an outpatient competency restoration or treatment program; or

(C) a criminal trial following any temporary restoration of the defendant's competency to stand trial.

(d) The court shall credit to the cumulative period described by Subsection (a) any time that a defendant, following arrest for the offense for which the defendant was to be tried, is confined in a correctional facility, as defined by Section 1.07, Penal Code, before the date the cumulative period begins as described by Subsection (c) [initial order of commitment or initial order for outpatient competency restoration or treatment program participation is entered under this chapter].

SECTION 7. Article 46B.090, Code of Criminal Procedure, is amended by amending Subsections (a-1), (b), (c), (f), (g), (i), (j), (k), (l), (m), and (n) and adding Subsections (f-1), (l-1), (l-2), and (o) to read as follows:

(a-1) If the legislature appropriates to the commission [department] the funding necessary for the commission [department] to operate a jail-based restoration of competency pilot program as described by this article, the commission [department] shall develop and implement the pilot program in one or two counties in this state that choose to participate in the pilot program. In developing the pilot program, the commission [department] shall coordinate and allow for input from each participating county.

(b) The commission [department] shall contract with a provider of jail-based competency restoration services to provide services under the pilot program if the commission [department] develops a pilot program under this article.

(c) The executive [Not later than November 1, 2013, the] commissioner [of the department] shall adopt rules as necessary to implement the pilot program. [In adopting rules under this article, the commissioner shall specify the types of information the department must collect during the operation of the pilot program for use in evaluating the outcome of the pilot program.]

(f) To contract with the commission [department] under Subsection (b), a provider of jail-based competency restoration services must [demonstrate to the department that]:

(1) be [the provider:

[(A) has previously provided jail-based competency restoration services for one or more years; or

[(B) is] a local mental health authority or local behavioral health authority that is in good standing with the commission, which may include an authority that is in good standing with the commission and subcontracts with a provider of jail-based competency restoration services [that has previously provided competency restoration services]; and

(2) contract with a county or counties to develop and implement a jail-based competency restoration program.

(f-1) The [the] provider's jail-based competency restoration program must:

(1) through the use of a multidisciplinary treatment team, provide jail-based competency restoration services that are:

(A) [uses a multidisciplinary treatment team to provide clinical treatment that is:

[(i)] directed toward the specific objective of restoring the defendant's competency to stand trial; and

(B) [(ii)] similar to other [the clinical treatment provided as part of a] competency restoration programs [program at an inpatient mental health facility];

(2) employ [(B) employs] or contract [contracts] for the services of at least one psychiatrist or psychologist;

(3) provide jail-based competency restoration services through licensed or qualified mental health professionals;

(4) provide [and (C) provides] weekly competency restoration [treatment] hours commensurate to the [treatment] hours provided as part of other [a] competency restoration programs [program at an inpatient mental health facility];

(5) operate in the jail in a designated space that is separate from the space used for the general population of the jail;

(6) ensure coordination of general health care;

(7) provide mental health treatment and substance use disorder treatment to defendants, as necessary, for competency restoration; and

(8) supply clinically appropriate psychoactive medications for purposes of administering court-ordered medication to defendants as applicable and in accordance with Article 46B.086 of this code or Section 574.106, Health and Safety Code

[(3) the provider is certified by a nationwide nonprofit organization that accredits health care organizations and programs, such as the Joint Commission on Health Care Staffing Services, or the provider is a local mental health authority in good standing with the department; and

[(4) the provider has a demonstrated history of successful jail-based competency restoration outcomes or, if the provider is a local mental health authority, a demonstrated history of successful competency restoration outcomes].

(g) A contract under Subsection (b) must require the designated provider to collect and submit to the commission [department] the information specified by rules adopted under Subsection (c).

(i) A [The] psychiatrist or psychologist for the provider who has the qualifications described by Article 46B.022 shall evaluate the defendant's competency and report to the court as required by Article 46B.079 [conduct at least two full psychiatric evaluations of the defendant during the period the defendant receives competency restoration services in the jail. The psychiatrist must conduct one evaluation not later than the 21st day and one evaluation not later than the 55th day after the date the defendant begins to participate in the pilot program. The psychiatrist shall submit to the court a report concerning each evaluation required under this subsection].

(j) If at any time during a defendant's participation in the jail-based restoration of competency pilot program the psychiatrist or psychologist for the provider determines that the defendant has attained competency to stand trial:

(1) the psychiatrist or psychologist for the provider shall promptly issue and send to the court a report demonstrating that fact; and

(2) the court shall consider that report as the report of an expert stating an opinion that the defendant has been restored to competency for purposes of Article 46B.0755(a) or (b).

(k) If at any time during a defendant's participation in the jail-based restoration of competency pilot program the psychiatrist or psychologist for the provider determines that the defendant's competency to stand trial is unlikely to be restored in the foreseeable future:

(1) the psychiatrist or psychologist for the provider shall promptly issue and send to the court a report demonstrating that fact; and

(2) the court shall:

(A) proceed under Subchapter E or F and order the transfer of the defendant, without unnecessary delay, to the first available facility that is appropriate for that defendant, as provided under Subchapter E or F, as applicable; or

(B) release the defendant on bail as permitted under Chapter 17.

(l) If the psychiatrist or psychologist for the provider determines that a defendant ordered to participate in the pilot program has not been restored to competency by the end of the 60th day after the date the defendant began to receive services in the pilot program, the jail-based competency restoration program shall continue to provide competency restoration services to the defendant for the period authorized by this subchapter, including any extension ordered under Article 46B.080, unless the jail-based competency restoration program is notified that space at a facility or outpatient competency restoration program appropriate for the defendant is available and, as applicable:

(1) for a defendant charged with a felony, not less than 45 days are remaining in the initial restoration period; or

(2) for a defendant charged with a felony or a misdemeanor, an extension has been ordered under Article 46B.080 and not less than 45 days are remaining under the extension order.

(l-1) After receipt of a notice under Subsection (l), [:

[(1) for a defendant charged with a felony, the defendant shall be transferred, without unnecessary delay and for the remainder of the period prescribed by Article 46B.073(b), to the first available facility that is appropriate for that defendant as provided by Article 46B.073(c) or (d); and

[(2) for a defendant charged with a misdemeanor, the court may:

[(A) order a single extension under Article 46B.080 and the transfer of] the defendant shall be transferred without unnecessary delay to the appropriate mental health facility, [or] residential care facility, or outpatient competency restoration program [as provided by Article 46B.073(d)] for the remainder of the period permitted by this subchapter, including any extension ordered under Article 46B.080. If the defendant is not transferred, and if the psychiatrist or psychologist for the provider determines that the defendant has not been restored to competency by the end of the period authorized by this subchapter, the defendant shall be returned to the court for further proceedings. For a defendant charged with a misdemeanor, the court may:

(1) [under the extension;

[(B)] proceed under Subchapter E or F;

(2) [(C)] release the defendant on bail as permitted under Chapter 17; or

(3) [(D)] dismiss the charges in accordance with Article 46B.010.

(l-2) The court retains authority to order the transfer of a defendant who is subject to an order for jail-based competency restoration services to an outpatient competency restoration program if:

(1) the court determines that the defendant is not a danger to others and may be safely treated on an outpatient basis with the specific objective of attaining competency to stand trial; and

(2) the other requirements of this subchapter relating to an order for outpatient competency restoration services are met.

(m) Unless otherwise provided by this article, the provisions of this chapter, including the maximum periods prescribed by Article 46B.0095, apply to a defendant receiving competency restoration services, including competency restoration education services, under the pilot program in the same manner as those provisions apply to any other defendant who is subject to proceedings under this chapter.

(n) If the commission [department] develops and implements a jail-based restoration of competency pilot program under this article, not later than December 1, 2021 [2018], the executive commissioner [of the department] shall submit a report concerning the pilot program to the presiding officers of the standing committees of the senate and house of representatives having primary jurisdiction over health and human services issues and over criminal justice issues. The report must include the information collected by the commission [department] during the pilot program and the executive commissioner's evaluation of the outcome of the program as of the date the report is submitted.

(o) This article expires September 1, 2022. After the expiration of this article, a pilot program established under this article may continue to operate subject to the requirements of Article 46B.091.

SECTION 8. Article 46B.091, Code of Criminal Procedure, is amended by amending Subsections (g) and (j) and adding Subsections (j-1) and (m) to read as follows:

(g) A psychiatrist or psychologist for the provider who has the qualifications described by Article 46B.022 shall evaluate the defendant's competency and report to the court as required by Article 46B.079 [conduct at least two full psychiatric or psychological evaluations of the defendant during the period the defendant receives competency restoration services in the jail. The psychiatrist or psychologist must conduct one evaluation not later than the 21st day and one evaluation not later than the 55th day after the date the defendant is committed to the program. The psychiatrist or psychologist shall submit to the court a report concerning each evaluation required under this subsection].

(j) If the psychiatrist or psychologist for the provider determines that a defendant committed to a program implemented under this article has not been restored to competency by the end of the 60th day after the date the defendant began to receive services in the program, the jail-based competency restoration program shall continue to provide competency restoration services to the defendant for the period authorized by this subchapter, including any extension ordered under Article 46B.080, unless the jail-based competency restoration program is notified that space at a facility or outpatient competency restoration program appropriate for the defendant is available and, as applicable:

(1) for a defendant charged with a felony, not less than 45 days are remaining in the initial restoration period; or

(2) for a defendant charged with a felony or a misdemeanor, an extension has been ordered under Article 46B.080 and not less than 45 days are remaining under the extension order.

(j-1) After receipt of a notice under Subsection (j), [the defendant shall be transferred, without unnecessary delay and for the remainder of the period prescribed by Article 46B.073(b), to the first available facility that is appropriate for that defendant as provided by Article 46B.073(c) or (d); and

[(2) for a defendant charged with a misdemeanor, the court may:

[(A) order a single extension under Article 46B.080 and, notwithstanding Articles 46B.073(e) and (f), the transfer of] the defendant shall be transferred without unnecessary delay to the appropriate mental health facility, [or] residential care facility, or outpatient competency restoration program [as provided by Article 46B.073(d)] for the remainder of the period permitted by this subchapter, including any extension ordered under Article 46B.080. If the defendant is not transferred, and if the psychiatrist or psychologist for the provider determines that the defendant has not been restored to competency by the end of the period authorized by this subchapter, the defendant shall be returned to the court for further proceedings. For a defendant charged with a misdemeanor, the court may: [under the extension;]

(1) [(B)] proceed under Subchapter E or F;

(2) [(C)] release the defendant on bail as permitted under Chapter 17; or

(3) [(D)] dismiss the charges in accordance with Article 46B.010.

(m) The court retains authority to order the transfer of a defendant who is subject to an order for jail-based competency restoration services to an outpatient competency restoration program if:

(1) the court determines that the defendant is not a danger to others and may be safely treated on an outpatient basis with the specific objective of attaining competency to stand trial; and

(2) the other requirements of this subchapter relating to an order for outpatient competency restoration services are met.

SECTION 9. Subchapter E, Chapter 46B, Code of Criminal Procedure, is amended by adding Article 46B.1055 to read as follows:

Art. 46B.1055. MODIFICATION OF ORDER FOLLOWING INPATIENT CIVIL COMMITMENT PLACEMENT. (a) This article applies to a defendant who has been transferred under Article 46B.105 from a maximum security unit to any facility other than a maximum security unit.

(b) The defendant, the head of the facility to which the defendant is committed, or the attorney representing the state may request that the court modify an order for inpatient treatment or residential care to order the defendant to participate in an outpatient treatment program.

(c) If the head of the facility to which the defendant is committed makes a request under Subsection (b), not later than the 14th day after the date of the request the court shall hold a hearing to determine whether the court should modify the order for inpatient treatment or residential care.

(d) If the defendant or the attorney representing the state makes a request under Subsection (b), not later than the 14th day after the date of the request the court shall grant the request, deny the request, or hold a hearing on the request to determine whether the court should modify the order for inpatient treatment or residential care. A court is not required to hold a hearing under this subsection unless the request and any supporting materials provided to the court provide a basis for believing modification of the order may be appropriate.

(e) On receipt of a request to modify an order under Subsection (b), the court shall require the local mental health authority or local behavioral health authority to submit to the court, before any hearing is held under this article, a statement regarding whether treatment and supervision for the defendant can be safely and effectively provided on an outpatient basis and whether appropriate outpatient mental health services are available to the defendant.

(f) If the head of the facility to which the defendant is committed believes that the defendant is a person with mental illness who meets the criteria for court-ordered outpatient mental health services under Subtitle C, Title 7, Health and Safety Code, the head of the facility shall submit to the court before the hearing a certificate of medical examination for mental illness stating that the defendant meets the criteria for court-ordered outpatient mental health services.

(g) If a request under Subsection (b) is made by a defendant before the 91st day after the date the court makes a determination on a previous request under that subsection, the court is not required to act on the request until the earlier of:

(1) the expiration of the current order for inpatient treatment or residential care; or

(2) the 91st day after the date of the court's previous determination.

(h) Proceedings for commitment of the defendant to a court-ordered outpatient treatment program are governed by Subtitle C, Title 7, Health and Safety Code, to the extent that Subtitle C applies and does not conflict with this chapter, except that the criminal court shall conduct the proceedings regardless of whether the criminal court is also the county court.

(i) The court shall rule on a request made under Subsection (b) as soon as practicable after a hearing on the request, but not later than the 14th day after the date of the request.

(j) An outpatient treatment program may not refuse to accept a placement ordered under this article on the grounds that criminal charges against the defendant are pending.

SECTION 10. Article 46C.102(a), Code of Criminal Procedure, is amended to read as follows:

(a) The court may appoint qualified psychiatrists or psychologists as experts under this chapter. To qualify for appointment under this subchapter as an expert, a psychiatrist or psychologist must:

(1) as appropriate, be a physician licensed in this state or be a psychologist licensed in this state who has a doctoral degree in psychology; and

(2) have the following certification [or experience] or training:

(A) as appropriate, certification by:

(i) the American Board of Psychiatry and Neurology with added or special qualifications in forensic psychiatry; or

(ii) the American Board of Professional Psychology in forensic psychology; or

(B) [experience or] training consisting of:

(i) at least 24 hours of specialized forensic training relating to incompetency or insanity evaluations; and

(ii) at least [ five years of experience in performing criminal forensic evaluations for courts; and

[(iii)] eight [or more] hours of continuing education relating to forensic evaluations, completed in the 12 months preceding the appointment [and documented with the court].

SECTION 11. Section 511.009(d), Government Code, is amended to read as follows:

(d) The commission shall adopt reasonable rules and procedures establishing minimum standards regarding the continuity of prescription medications for the care and treatment of prisoners. The rules and procedures shall require that:

(1) a qualified medical professional shall review as soon as possible any prescription medication a prisoner is taking when the prisoner is taken into custody; and

(2) a prisoner with a mental illness be provided with each prescription medication that a qualified medical professional or mental health professional determines is necessary for the care, treatment, or stabilization of the prisoner.

SECTION 12. The following provisions of the Code of Criminal Procedure are repealed:

(1) Articles 46B.090(a) and (h); and

(2) Article 46B.091(a).

SECTION 13. The change in law made by this Act to Article 17.04, Code of Criminal Procedure, applies only to a personal bond that is executed on or after the effective date of this Act. A personal bond executed before the effective date of this Act is governed by the law in effect on the date the personal bond was executed, and the former law is continued in effect for that purpose.

SECTION 14. The change in law made by this Act to Article 46C.102(a), Code of Criminal Procedure, applies to a defendant against whom proceedings are initiated under Chapter 46C, Code of Criminal Procedure, before, on, or after the effective date of this Act.

SECTION 15. Not later than December 1, 2021, the Commission on Jail Standards shall adopt the rules and procedures required by Section 511.009(d), Government Code, as amended by this Act.

SECTION 16. This Act takes effect September 1, 2021.