HBA-DMD H.B. 157 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 157 By: Wise Corrections 2/9/1999 Introduced BACKGROUND AND PURPOSE The current rate of recidivism is high for sex offenders. Current Texas law does not provide a form of treatment and civil commitment for a sex offender who has been released from prison. H.B. 157 provides for a civil commitment process that would assess the offender to determine if the offender should be classified as a sexually violent predator. If such determination is made, this bill allows for institutionalizing the offender in separate facilities from those which house the mentally ill, to receive treatment and counseling after release from prison. 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 Title 4, Government Code, by adding Subtitle H, as follows: SUBTITLE H. CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS CHAPTER 521. CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS SUBCHAPTER A. GENERAL PROVISIONS Sec. 521.001. DEFINITIONS. Defines "commissioner," "department," "mental abnormality," "predatory act," "secure correctional facility," and "sexually violent predator." Sec. 521.002. APPLICATION. Sets forth that this chapter does not prohibit the committed person from filing a petition for release under this chapter. SUBCHAPTER B. NOTICE OF APPARENT PREDATOR; INITIAL DETERMINATION Sec. 521.021. NOTICE OF APPARENT PREDATOR. (a) Requires the Texas Department of Criminal Justice (TDCJ) to give written notice to the attorney general and the multidisciplinary team established under Section 521.022 (Multidisciplinary Team) of the anticipated release of a person who is serving a sentence for a sexually violent offense or an offense for which there was an affirmative finding under Article 42.015, Code of Criminal Procedure (Finding of Sexual Motivation), and if the Texas Department of Mental Health and Mental Retardation (MHMR) finds the person is suffering from an abnormality or disorder described by Section 521.001 (Definitions). (b) Requires the department to give the attorney general and the multidisciplinary team written notice of the expected release of a person who is committed to MHMR after having been charged with a sexually violent offense and found incompetent to stand trial under Article 46.02, Code of Criminal Procedure (Incompetency to Stand Trial), or having been found not guilty by reason of insanity under Article 46.03, Code of Criminal Procedure (Insanity Defense), or an offense for which the judgment or competency hearing contains an affirmative finding under Article 42.015, Code of Criminal Procedure (Finding of Sexual Motivation). Requires MHMR or TDCJ to give notice containing the person's name, identifying factors, anticipated residence after release, criminal history, and documentation of the person's institutional adjustment and actual treatment, at least 90 days before the anticipated release or discharge date. Sec. 521.022. MULTIDISCIPLINARY TEAM. Requires the executive director of TDCJ and the commissioner of mental health and mental retardation (commissioner) to jointly establish a multidisciplinary team (team) to review available records of a person referred to the team under Section 521.021 (Notice of Apparent Predator). Requires the team to assess whether the person is a sexually violent predator (predator) no later than 30 days after the team receives notice. Requires the team to give notice of its assessment, and make available its assessment, to the attorney general and the prosecutor's review committee established under Section 521.023 (Prosecutor's Review Committee). Sec. 521.023. PROSECUTOR'S REVIEW COMMITTEE. Requires the attorney general to establish a prosecutor's review committee (committee) to review available records of a person referred to the attorney general under Section 521.021 (Notice of Apparent Predator) and requires the committee to assist the attorney general in determining whether the person is a predator. SUBCHAPTER C. PETITION ALLEGING PREDATOR STATUS Sec. 521.041. PETITION ALLEGING PREDATOR STATUS. Provides that if the committee and attorney general determine a person to be a predator, the attorney general is authorized to file a petition alleging the person is a predator, along with facts supporting the allegation. Requires the attorney general to file the petition not later than the 75th day after receipt of notice under Section 521.021 (Notice of Apparent Predator). Sec. 521.042. PROBABLE CAUSE DETERMINATION. Requires the judge to determine whether probable cause exists to believe that a person named in the petition is a predator. Requires the judge to take the person into custody if probable cause exists. Sec. 521.043. HEARING. Requires the attorney general, within 72 hours after a person is taken into custody, to give the person notice of and opportunity to appear at a hearing to contest probable cause as to whether the person is a predator. Requires the judge to verify the person's identity and determine whether probable cause exists to believe the person is a predator. Authorizes the attorney general to rely on the petition and either use documentary evidence or live testimony to supplement the petition. Establishes that the detained person's rights include presentation of evidence on the person's behalf, the right to cross-examine a witness who testifies against the person, and the right to view and copy all documents in the court file. SUBCHAPTER D. TRIAL Sec. 521.061. PRETRIAL EXAMINATION. Requires the judge, on determining there is probable cause that the person is a predator, to direct the transfer of the person to a secure correctional facility where an expert is required to perform an examination as to whether the person is a predator. Sec. 521.062. TRIAL. Requires the judge to hold a trial to determine whether the detained person is a predator no later than 60 days after the hearing. Entitles the detained person or the state to a jury trial on demand. Provides that the demand for jury trial be filed in writing no later than four days prior to the trial date. Specifies that the number and selection of jurors is governed by Chapter 33, Code of Criminal Procedure (The Mode of Trial). Sec. 521.063. DETERMINATION OF PREDATOR STATUS. Requires the judge or jury to determine, beyond a reasonable doubt and by unanimous decision, that the detained person is a predator. Entitles the state or the person to appeal the determination. Sec. 521.064. RELEASE AFTER TRIAL. Requires the judge to release the person if the judge or jury is not able to find beyond a reasonable doubt that the detained person is a predator. Sec. 521.065. COMMITMENT OF PREDATOR. Requires the judge, if the detained person is determined to be a predator, to commit the person to the custody of the commissioner for control, care, and treatment until the person's condition has changed and the person is safe to be at large and not likely to engage in a predatory act of sexual violence if released. Requires MHMR to enter into an interagency contract with TDCJ for confinement of the person. Requires TDCJ to house persons committed under this section separately from inmates in the custody of TDCJ. Requires MHMR to provide care and treatment to the person. Sec. 521.066. CONTINUANCE. Authorizes the judge to continue a trial conducted under Section 521.062 (Trial) upon request of either party and a showing of good cause or on the judge's own motion if the detained person is not substantially prejudiced by the continuance. Sec. 521.067. MISTRIAL. Requires the judge upon a mistrial, to order the person's continued detention until another trial is conducted. Provides that the trial must begin no later than 90 days after the mistrial is declared unless there is a continuance. SUBCHAPTER E. INCOMPETENCY Sec. 521.081. INCOMPETENCY. (a) Requires the court to first hear evidence to determine whether a person has committed a sexually violent offense or an offense for which an affirmative finding has been entered under Article 42.015, Code of Criminal Procedure (Finding of Sexual Motivation), for which the person has been found incompetent to stand trial and is about to be released under Article 46.02, Code of Criminal Procedure (Incompetency to Stand Trial), and the person's commitment is sought under Section 521.065 (Commitment of Predators). (b) Provides that the hearing must comply with all procedures specified in this section. Provides that the rules of evidence applicable in a criminal case and all constitutional rights available to a defendant at a criminal trial apply to the hearing except the right of the defendant not to be tried while incompetent. (c) Requires the judge or jury to specifically determine whether the person committed the act charged, whether it was sexually motivated, to what extent the person's incompetence or developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and testify on the person's own behalf, the extent to which evidence could be reconstructed without the person's assistance, and the strength of the prosecutor's case. (d) Requires the judge to enter a final order, appealable by the person, if the judge or jury finds beyond a reasonable doubt that the person committed the offense or that the offense was sexually motivated. Authorizes the judge to consider whether the person should be committed under Section 521.065 (Commitment of Predators). SUBCHAPTER F. COMMITMENT REVIEW Sec. 521.101. ANNUAL EXAMINATION. Requires a person committed under Section 521.065 (Commitment of Predators) to receive an annual examination of the person's condition. Requires the commissioner to provide a report of the examination to the judge who committed the person. Sec. 521.102. ANNUAL REVIEW. Requires the judge to hold an annual review to reexamine the status of the committed person at which the person is entitled to have legal representation but is not entitled to attend. Requires the judge to set a hearing if the judge finds probable cause to believe that the person's condition has changed enough that the person is safe to be at large and not likely to engage in a predatory act of sexual violence if released. Sec. 521.103. HEARING. Entitles the committed person is entitled to be present at a hearing set by a judge under Section 521.102 (Annual Review) and have all constitutional protections afforded a person at initial civil commitment proceedings. Entitles the state to have the hearing conducted before a jury and to choose an expert to examine the person. Provides that burden of proof is on the state to prove beyond a reasonable doubt that the person has not changed to the extent that the person is safe to be at large and not likely to engage in a predatory act of sexual violence. SUBCHAPTER G. PETITION FOR RELEASE Sec. 521.121. AUTHORIZED PETITION FOR RELEASE. Requires the commissioner to authorize the committed person to petition the court for release if the commissioner determines the person has changed to the extent that the person is safe to be at large and will not engage in any predatory acts if released. Requires the petitioner to serve the petition on the court and the attorney general and requires the judge to set a hearing on the petition no later than 30 days after receipt of the petition. Entitles the state to select an expert to examine the petitioner and requires the court to conduct the hearing before a jury upon request of the petitioner or the attorney general. Establishes that the burden of proof is on the state to prove beyond a reasonable doubt that the petitioner is not safe to be at large and likely to engage in predatory acts of sexual violence. Sec. 521.122. UNAUTHORIZED PETITION FOR RELEASE. Requires the commissioner to provide the committed person with an annual written notice of the person's right to petition the court for release over the commissioner's objection. Sec. 521.123. FRIVOLOUS PETITION FOR RELEASE. Requires the judge to review as soon as possible the petition for release of a committed person filed without the commissioner's authorization. Requires the judge to deny the petition without a hearing if the judge determines the petition is based on frivolous grounds. Requires the judge to deny without a hearing a petition that is filed without the commissioner's authorization if the petitioner previously filed a petition without the commissioner's authorization and the judge determined after review, that the petition was frivolous or the person's condition had not changed unless the judge finds sufficient facts in the petition that the person's condition has changed and a hearing is warranted. SUBCHAPTER H. RELEASE OF COMMITTED PERSON Sec. 521.141. NOTICE OF RELEASE. Requires the commissioner to give written notice to the victim, a guardian of the victim, or a close relative of the victim, if the victim is deceased, before the committed person is released. Provides that failure to is not a reason to postpone release and does not create a cause of action against the state or a state employee acting within the scope of employment. Specifies that "close relative of a deceased victim," "guardian of a victim," and "victim" is defined in Article 56.01, Code of Criminal Procedure (Definitions). SUBCHAPTER I. MISCELLANEOUS PROVISIONS Sec. 521.161. CONFIDENTIAL OR PRIVILEGED INFORMATION. Requires any entity to release any confidential or privileged information relating to a person's potential status as a predator to the attorney general to protect the public, to meet the notice requirement provided by Section 521.021 (Notice of Apparent Predator), and to help determine predator status. Sec. 521.162. REPORT, RECORD, OR STATEMENT SUBMITTED TO COURT. Establishes that a psychological report, drug and alcohol report, treatment record, report of the diagnostic center, medical record, or victim impact statement submitted to the court are part of the court record and must be sealed. Authorizes that sealed records be opened only on order of the judge or as provided by this chapter. Sec. 521.163. CONSTITUTIONAL REQUIREMENTS FOR CARE AND TREATMENT. Provides that involuntary detention or commitment of a person under this chapter must conform to constitutional requirements for care and treatment. Sec. 521.164. COUNSEL. Entitles a person to assistance of counsel at all stages of the commitment proceedings. Requires the court to appoint counsel if the person is indigent. Sec. 521.165. EXPERT. Authorizes the person who is examined to retain an expert to perform an examination or participate in a civil commitment proceeding on the person's behalf. Requires the judge to determine whether expert services are necessary for an indigent person and, if so, the judge is required to appoint an expert to perform an examination or participate in a civil commitment proceeding on behalf of the person. Requires the court to approve reasonable compensation for expert services rendered for an indigent person upon the filing of a certified compensation claim supported by a written statement specifying time expended, services rendered, and expenses incurred on the person's behalf, and compensation received in the same case or for the same services from any other source. Requires the court to ensure that the expert has reasonable access to the person for purposes of examination, as well as access to all relevant medical and psychological records and reports. Sec. 521.166. IMMUNITY. Specifies that persons immune from liability for good faith conduct under this chapter include an employee or officer of MHMR or TDCJ, a member of the multidisciplinary team established under Section 521.022 (Multidisciplinary Team), a member of the prosecutor's review committee established under Section 521.023 (Prosecutor's Review Team), and a person contracting, appointed, or volunteering to perform a service under this chapter. SECTION 2. Amends Chapter 42, Code of Criminal Procedure, by adding Article 42.015, as follows: Art. 42.015. FINDING OF SEXUAL MOTIVATION. Requires the court to enter an affirmative finding of fact in the trial of an offense other than a sexually violent offense if the court determines the defendant committed the offense with intent to arouse or gratify the sexual desire of any person. Requires the court to enter the finding in the record of a hearing if a person charged with an offense, other than a sexually violent offense, has committed the offense with the intent to arouse or gratify the sexual desire of any person but is incompetent to stand trial. Defines "sexually violent offense" as assigned by Section 521.001 (Definitions), Government Code. SECTION 3. Effective date: September 1, 1999. SECTION 4. Emergency clause.