By Brady H.B. No. 2797
74R6562 NSC-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the insanity defense and to sentencing of a criminal
1-3 defendant found to be mentally ill.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Article 46.03, Code of Criminal Procedure, is
1-6 amended to read as follows:
1-7 Art. 46.03. MENTAL ILLNESS CONSIDERED DURING SENTENCING
1-8 <INSANITY DEFENSE>
1-9 Sec. 1. MENTAL ILLNESS CONSIDERED DURING SENTENCING <THE
1-10 INSANITY DEFENSE>. (a) The issue of mental illness of a defendant
1-11 who has been found guilty of an offense may <insanity defense
1-12 provided in Section 8.01 of the Penal Code shall> be submitted to
1-13 the jury during the sentencing phase of a trial only if supported
1-14 by competent evidence.
1-15 (b) When the issue of mental illness <insanity defense> is
1-16 submitted, the trier of facts shall determine whether the defendant
1-17 is mentally ill and should be referred for treatment or commitment
1-18 in a mental health facility during the term of the sentence imposed
1-19 on the defendant <and include in the verdict or judgment or both
1-20 whether the defendant is guilty, not guilty, or not guilty by
1-21 reason of insanity>. If the trier of facts determines the
1-22 defendant is mentally ill and should be referred for treatment or
1-23 commitment, the trier of facts shall include in the judgment a
1-24 recommendation that the defendant be referred for treatment or
2-1 commitment and for further proceedings under Article 46.01.
2-2 (c) The trier of facts may not consider the mental illness
2-3 of the defendant as a mitigating factor in determining the
2-4 punishment for the defendant <shall return a verdict of not guilty
2-5 by reason of insanity if the prosecution has established beyond a
2-6 reasonable doubt that the alleged conduct was committed and the
2-7 defense has established by a preponderance of the evidence that the
2-8 defendant was insane at the time of the alleged conduct>.
2-9 <(d) A defendant who has been found not guilty by reason of
2-10 insanity shall stand acquitted of the offense charged and may not
2-11 be considered a person charged with a criminal offense.>
2-12 <(e) The court, the attorney for the state, or the attorney
2-13 for the defendant may not inform a juror or a prospective juror of
2-14 the consequences to the defendant if a verdict of not guilty by
2-15 reason of insanity is returned.>
2-16 Sec. 2. RAISING THE ISSUE OF MENTAL ILLNESS <INSANITY
2-17 DEFENSE>. (a) A defendant planning to offer evidence of mental
2-18 illness during the sentencing phase of the trial <the insanity
2-19 defense> shall file a notice of his intention to offer such
2-20 evidence with the court and the prosecuting attorney in the same
2-21 manner as required for notice to offer character evidence under
2-22 Rule 404, Texas Rules of Criminal Evidence<:>
2-23 <(1) at least 10 days prior to the date the case is
2-24 set for trial; or>
2-25 <(2) if the court sets a pretrial hearing before the
2-26 10-day period, the defendant shall give notice at the hearing; or>
2-27 <(3) if the defendant raises the issue of his
3-1 incompetency to stand trial before the 10-day period, he shall at
3-2 the same time file notice of his intention to offer evidence of the
3-3 insanity defense>.
3-4 (b) Unless notice is timely filed pursuant to Subsection (a)
3-5 of this section, evidence on mental illness <the insanity defense>
3-6 is not admissible unless the court finds that good cause exists for
3-7 failure to give notice.
3-8 Sec. 3. EXAMINATION OF THE DEFENDANT. (a) If notice of
3-9 intention to raise the issue of mental illness <insanity defense>
3-10 is filed under Section 2 of this article, the court may, on its own
3-11 motion or motion by the defendant, his counsel, or the prosecuting
3-12 attorney, appoint disinterested experts experienced and qualified
3-13 in mental health and mental retardation to examine the defendant
3-14 with regard to mental illness <the insanity defense> and to testify
3-15 thereto at any trial or hearing on this issue.
3-16 (b) The court may order any defendant to submit to
3-17 examination for the purposes described in this article. If the
3-18 defendant is free on bail, the court in its discretion may order
3-19 him to submit to examination. If the defendant fails or refuses to
3-20 submit to examination, the court may order him to custody for
3-21 examination for a reasonable period not to exceed 21 days. The
3-22 court may not order a defendant to a facility operated by the Texas
3-23 Department of Mental Health and Mental Retardation for examination
3-24 without the consent of the head of that facility or for a period
3-25 exceeding 21 days. If a defendant who has been ordered to a
3-26 facility operated by the Texas Department of Mental Health and
3-27 Mental Retardation for examination remains in such facility for a
4-1 period of time exceeding 21 days, the head of that facility shall
4-2 cause the defendant to be immediately transported to the committing
4-3 court and placed in the custody of the sheriff of the county in
4-4 which the committing court is located. That county shall reimburse
4-5 the Texas Department of Mental Health and Mental Retardation
4-6 facility for the mileage and per diem expenses of the personnel
4-7 required to transport the defendant calculated in accordance with
4-8 the state travel regulations in effect at that time.
4-9 (c) The court shall advise any expert appointed pursuant to
4-10 this section of the facts and circumstances of the offense <with
4-11 which> the defendant has been found guilty of committing <is
4-12 charged and the elements of the insanity defense>.
4-13 (d) A written report of the examination shall be submitted
4-14 to the court within 30 days of the order of examination, and the
4-15 court shall furnish copies of the report to the defense counsel and
4-16 the prosecuting attorney. The report shall include a description
4-17 of the procedures used in the examination and the examiner's
4-18 observations and findings pertaining to the defendant's mental
4-19 condition <insanity defense>. The examiner shall also submit a
4-20 separate report setting forth his observations and findings
4-21 concerning:
4-22 (1) whether the defendant is presently mentally ill
4-23 and requires court-ordered mental health services; or
4-24 (2) whether the defendant is a mentally retarded
4-25 person as defined in the Mentally Retarded Persons Act of 1977
4-26 (Article 5547-300, Vernon's Texas Civil Statutes).
4-27 (e) The appointed experts shall be paid by the county in
5-1 which the indictment was returned or information was filed. A
5-2 facility operated by the Texas Department of Mental Health and
5-3 Mental Retardation which accepts a defendant for examination under
5-4 Subsection (a) of this section shall be reimbursed by the county in
5-5 which the indictment was returned or information was filed for such
5-6 expenses incurred as are determined by the department to be
5-7 reasonably necessary and incidental to the proper examination of
5-8 the defendant.
5-9 (f) When a defendant wishes to be examined by a psychiatrist
5-10 or other expert of his own choice, the court on timely request
5-11 shall provide the examiner with reasonable opportunity to examine
5-12 the defendant.
5-13 (g) The experts appointed under this section to examine the
5-14 defendant with regard to mental illness <the insanity defense> also
5-15 may be appointed by the court to examine the defendant with regard
5-16 to his competency to stand trial pursuant to Section 3 of Article
5-17 46.02 of this code, provided that separate written reports
5-18 concerning the defendant's competency to stand trial and mental
5-19 illness <the insanity defense> shall be filed with the court.
5-20 <Sec. 4. DISPOSITION FOLLOWING ACQUITTAL BY REASON OF
5-21 INSANITY. (a) Act Did Not Involve Serious Bodily Injury; Civil
5-22 Commitment. If a defendant is found not guilty by reason of
5-23 insanity in the trial of a criminal offense, the court shall
5-24 determine whether the conduct committed by the defendant involved
5-25 an act, attempt, or threat of serious bodily injury to another
5-26 person. If the court determines that the defendant had not
5-27 committed an act, attempt, or threat of serious bodily injury to
6-1 another person, then the court shall further determine whether
6-2 there is evidence to support findings that the defendant is either
6-3 mentally ill or is a mentally retarded person. If the court
6-4 determines that there is evidence to support either of such
6-5 findings, the court shall transfer the defendant to the appropriate
6-6 court for civil commitment proceedings and may order the defendant
6-7 detained in jail or other suitable place pending the prompt
6-8 initiation and prosecution by the attorney for the state or other
6-9 person designated by the court of appropriate civil proceedings to
6-10 determine whether the defendant shall be committed to a mental
6-11 health or mental retardation facility; provided, however, that a
6-12 patient placed in a facility of the Texas Department of Mental
6-13 Health and Mental Retardation pending civil hearing under this
6-14 section shall only be detained pursuant to the provisions for an
6-15 Order of Protective Custody as set out in the Texas Mental Health
6-16 Code and with the consent of the head of the facility, or the court
6-17 may give the defendant into the care of a responsible person on
6-18 satisfactory security being given for his proper care and
6-19 protection; otherwise, the defendant shall be discharged.>
6-20 <(b) Commitment to Maximum Security Unit; Transfer to
6-21 Nonsecurity Unit. A person committed to a mental health or mental
6-22 retardation facility as a result of the proceedings initiated
6-23 pursuant to Subsection (d) of this section shall be committed to
6-24 the maximum security unit of any facility designated by the Texas
6-25 Department of Mental Health and Mental Retardation. Within 60 days
6-26 following arrival at the maximum security unit, the person shall be
6-27 transferred to a nonsecurity unit of a mental health or mental
7-1 retardation facility designated by the Texas Department of Mental
7-2 Health and Mental Retardation unless the person is determined to be
7-3 manifestly dangerous by a review board within the Texas Department
7-4 of Mental Health and Mental Retardation. The Commissioner of Mental
7-5 Health and Mental Retardation shall appoint a review board of five
7-6 members, including one psychiatrist licensed to practice medicine
7-7 in this state and two persons who work directly with mental health
7-8 patients or mentally retarded clients, to determine whether the
7-9 person is manifestly dangerous. If the superintendent of the
7-10 facility at which the maximum security unit is located disagrees
7-11 with the determination, then the matter will be referred to the
7-12 Commissioner of Mental Health and Mental Retardation who will
7-13 resolve the disagreement by deciding whether the person is
7-14 manifestly dangerous.>
7-15 <(c) Transcript of all Medical Testimony. The court shall
7-16 order that a transcript of all medical testimony received in both
7-17 the criminal proceedings and the commitment proceedings be prepared
7-18 forthwith by the court reporters and that such transcripts,
7-19 together with a statement of the facts and circumstances
7-20 surrounding the alleged offense, shall accompany the patient to the
7-21 mental health or mental retardation facility.>
7-22 <(d) Act, Attempt, or Threat of Serious Bodily Injury;
7-23 Special Commitment; Out-patient Supervision; Recommitment.
7-24 (1) Automatic Commitment for Evaluation. If a defendant is found
7-25 not guilty by reason of insanity in the trial of a criminal offense
7-26 and the court determines that the defendant committed an act,
7-27 attempt, or threat of serious bodily injury to another person, the
8-1 trial court shall retain jurisdiction over the person so acquitted
8-2 and shall order such person to be committed to the maximum security
8-3 unit of any facility designated by the Texas Department of Mental
8-4 Health and Mental Retardation until such time as he is eligible for
8-5 release pursuant to this subsection or is eligible for transfer to
8-6 a nonsecurity facility pursuant to Subsection (b) of this section.
8-7 The court shall order that an examination of the defendant's
8-8 present mental condition be conducted and that a report be filed
8-9 with the court.>
8-10 <(2) Hearing. A hearing shall take place not later
8-11 than 30 days following the acquittal order to determine if the
8-12 person acquitted by reason of insanity is presently mentally ill or
8-13 mentally retarded and meets the criteria for involuntary commitment
8-14 as provided in the Texas Mental Health Code (Article 5547-1 et
8-15 seq., Vernon's Texas Civil Statutes) or the Mentally Retarded
8-16 Person's Act (Article 5547-300, Vernon's Texas Civil Statutes).
8-17 The hearing shall be conducted by the trial court in the same
8-18 manner as a hearing on an application for involuntary commitment
8-19 pursuant to the Mental Health Code or the Mentally Retarded
8-20 Person's Act.>
8-21 <(3) Determination and Disposition. If, after the
8-22 hearing, the court finds that the acquitted person meets the
8-23 criteria for involuntary commitment, the court shall order that
8-24 person to be committed to a mental hospital or other appropriate
8-25 facility, as designated by the Texas Department of Mental Health
8-26 and Mental Retardation, for a period not exceeding 90 days. The
8-27 court may order the acquitted person to participate in a prescribed
9-1 regimen of medical, psychiatric, or psychological care or treatment
9-2 on an out-patient basis pursuant to the provisions of Subdivision
9-3 (4) of this subsection. If the court finds that the person
9-4 acquitted by reason of insanity does not meet the criteria for
9-5 involuntary commitment, the court shall order that person's
9-6 immediate release.>
9-7 <(4) Out-patient Supervision. If at the time of the
9-8 evaluation as provided in Subdivision (1) of this subsection prior
9-9 to the hearing on involuntary commitment, the report of the
9-10 defendant's present mental condition includes a recommendation that
9-11 the person acquitted by reason of insanity meets the criteria for
9-12 involuntary commitment but that such treatment or care can be
9-13 provided on an out-patient basis provided he participates in a
9-14 prescribed regimen of medical, psychiatric, or psychological care
9-15 or treatment, and the court finds that the acquitted person does
9-16 meet those criteria, the court may order the acquitted person to
9-17 participate in that prescribed regimen of medical, psychiatric, or
9-18 psychological care or treatment. The court may at any time modify
9-19 or revoke the out-patient regimen of medical, psychiatric, or
9-20 psychological care or treatment pursuant to the requirements of the
9-21 Mental Health Code or the Mentally Retarded Person's Act. The
9-22 court shall review the continuing need for such order at the
9-23 completion of 90 days from the issuance of the initial out-patient
9-24 order and no less often than once every 12 months for subsequent
9-25 out-patient orders pursuant to the requirements of the Mental
9-26 Health Code or Mentally Retarded Person's Act.>
9-27 <(5) Judicial Release. A person acquitted by reason
10-1 of insanity and committed to a mental hospital or other appropriate
10-2 facility pursuant to Subdivision (3) of this subsection may only be
10-3 discharged by order of the committing court in accordance with the
10-4 procedures specified in this subsection. If at any time prior to
10-5 the expiration of a commitment order the superintendent of the
10-6 facility to which the acquitted person is committed determines that
10-7 the person has recovered from his mental condition to such an
10-8 extent that he no longer meets the criteria for involuntary
10-9 commitment or that he continues to meet those criteria but that
10-10 treatment or care can be provided on an out-patient basis provided
10-11 he participates in a prescribed regimen of medical, psychiatric, or
10-12 psychological care and treatment, the director of the facility
10-13 shall promptly file a certificate to that effect with the clerk of
10-14 the court that ordered the commitment. If the superintendent of
10-15 the facility intends to recommend release, out-patient care, or
10-16 continued in-patient care upon the expiration of a commitment
10-17 order, the superintendent shall file a certificate to that effect
10-18 with the clerk of the court that ordered the commitment at least 14
10-19 days prior to the expiration of that order. The clerk shall notify
10-20 the district or county attorney upon receipt of such certificate.
10-21 Upon receipt of such certificate or upon the expiration of a
10-22 commitment order, the court shall order the discharge of the
10-23 acquitted person or on the motion of the district or county
10-24 attorney or on its own motion shall hold a hearing, prior to the
10-25 expiration of the commitment order, conducted pursuant to the
10-26 provisions of the Mental Health Code or the Mentally Retarded
10-27 Person's Act as appropriate, to determine if the acquitted person
11-1 continues to meet the criteria for involuntary commitment and
11-2 whether an order should be issued requiring the person to
11-3 participate in a prescribed regimen of medical, psychiatric, or
11-4 psychological care or treatment on an out-patient basis as provided
11-5 in Subdivision (4) of this subsection. If the court determines
11-6 that the acquitted person continues to meet the criteria for
11-7 involuntary commitment and that out-patient supervision is not
11-8 appropriate, the court shall order that the person be returned to a
11-9 mental hospital or other appropriate in-patient or residential
11-10 facility. If the court finds that continued in-patient or
11-11 residential care is required, the commitment will continue until
11-12 the expiration of the original order, if one is still in effect, or
11-13 the court shall issue a new commitment order of an appropriate
11-14 duration as specified in the Mental Health Code or the Mentally
11-15 Retarded Person's Act. If a hearing on a request for discharge or
11-16 out-patient supervision has been held prior to the expiration of a
11-17 commitment order, the court is not required to act on a subsequent
11-18 request except upon the expiration of a commitment order or upon
11-19 the expiration of 90 days following a hearing on a previous
11-20 request. Commitment orders subsequent to an initial commitment
11-21 order issued under this subsection shall be of an appropriate
11-22 duration as specified in the Mental Health Code or the Mentally
11-23 Retarded Person's Act, whichever is applicable.>
11-24 <(6) Modification or Revocation of Out-patient
11-25 Supervision. The director of the facility or other individual
11-26 responsible for administering a regimen of out-patient care or
11-27 treatment imposed on an acquitted person pursuant to Subdivision
12-1 (4) or (5) of this subsection shall notify the court ordering such
12-2 out-patient care of any failure of the person to comply with that
12-3 regimen or if the person's condition has so deteriorated that
12-4 out-patient care is no longer appropriate. Upon such notice or
12-5 upon other probable cause to believe that the person has failed to
12-6 comply with the prescribed regimen of medical, psychiatric, or
12-7 psychological care or treatment, the person may be taken into
12-8 custody and brought without unnecessary delay before the court
12-9 having jurisdiction over him. The court shall determine, after a
12-10 hearing, whether the person should be remanded to a suitable
12-11 facility for protective custody, pursuant to the provisions of the
12-12 Mental Health Code or the Mentally Retarded Person's Act, pending a
12-13 hearing on whether the person continues to meet the criteria for
12-14 involuntary commitment and whether the out-patient order should be
12-15 modified or revoked.>
12-16 <(7) In no event may a person acquitted by reason of
12-17 insanity be committed to a mental hospital or other in-patient or
12-18 residential facility pursuant to this subsection for a cumulative
12-19 period of time which exceeds the maximum term provided by law for
12-20 the crime for which the acquitted person was tried. Upon
12-21 expiration of that maximum term, the acquitted person may be
12-22 further confined in such a facility only pursuant to civil
12-23 commitment proceedings.>
12-24 SECTION 2. Section 8.01, Penal Code, is repealed.
12-25 SECTION 3. (a) The change in law made by this Act applies
12-26 only to an offense committed on or after the effective date of this
12-27 Act. For purposes of this section, an offense is committed before
13-1 the effective date of this Act if any element of the offense occurs
13-2 before the effective date.
13-3 (b) An offense committed before the effective date of this
13-4 Act is covered by the law in effect when the offense was committed,
13-5 and the former law is continued in effect for that purpose.
13-6 SECTION 4. This Act takes effect September 1, 1995.
13-7 SECTION 5. The importance of this legislation and the
13-8 crowded condition of the calendars in both houses create an
13-9 emergency and an imperative public necessity that the
13-10 constitutional rule requiring bills to be read on three several
13-11 days in each house be suspended, and this rule is hereby suspended.