SRC-JJJ S.B. 29 76(R) BILL ANALYSIS
Senate Research Center S.B. 29
76R312 KEL-DBy: Shapiro
State Affairs
3/1/1999
As Filed
DIGEST
Currently, sexually violent predators are being released from prison once
they have served out their sentences even when criminal justice officials
are confident that they will offend again. Repeat sexually violent
offenders are a unique class of sexual offenders who exhibit behavioral
abnormalities making it highly likely that they will engage in further
predatory acts, and therefore are in need of treatment for their disorder.
S.B. 29 would require any person convicted with two sexually violent
offenses and suffering from a behavioral abnormality that makes the person
more likely to commit further offenses, the state will have the ability to
initiate involuntary commitment proceedings against the person.
Confinement under this section is not intended as further punishment, and
individuals that are committed will be reviewed biennially.
PURPOSE
As proposed, S.B. 29 establishes provisions regarding the civil commitment
of sexually violent predators; provides a penalty.
RULEMAKING AUTHORITY
Rulemaking authority is granted to the Texas Board of Mental Health and
Mental Retardation in SECTION 1(Section 841.161, Health and Safety Code) of
this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends the Health and Safety Code by adding Title 11, as
follows:
TITLE 11. CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS
CHAPTER 841. CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 841.001. LEGISLATIVE FINDINGS. Sets forth the findings of the
legislature.
Sec. 841.002. DEFINITIONS. Defines "attorney representing the state,"
"behavioral abnormality," "board," "commissioner," "department," "predatory
act," "repeat sexually violent offender," "secure correctional facility,"
"sexually violent offense," "sexually violent predator," and "special
commitment center."
Sec. 841.003. SEXUALLY VIOLENT PREDATOR. Provides that a sexually violent
predator is a repeat sexually violent offender who suffers from a
behavioral abnormality that makes the person more likely to engage in a
predatory act of violence. Sets forth conditions under which a person is
considered a repeat sexually violent offender.
Sec. 841.004. PRISON PROSECUTION UNIT. Provides that a special division
of the prison prosecution unit is responsible for prosecuting civil
commitment proceedings under this chapter.
Sec. 841.005. APPLICATION OF CHAPTER. Provides that this chapter does not
prohibit a person from filing a petition at any time for either discharge
or conditional release to a less restrictive alternative under this
chapter, or create a cause of action against another person for failure to
give proper notice.
SUBCHAPTER B. NOTICE OF POTENTIAL PREDATOR; INITIAL DETERMINATIONS
Sec. 841.021. NOTICE OF POTENTIAL PREDATOR. Requires the Texas Department
of Criminal Justice (TDCJ) to give the multidisciplinary team established
under Section 841.022 notice of the anticipated release of a person who is
serving a sentence for a sexually violent offense and is a repeat sexually
violent offender. Requires TDCJ to give the multidisciplinary team
notice of the anticipated discharge of a person who committed certain
offenses. Authorizes TDCJ to give the notice orally. Requires TDCJ to
attempt to give written notice within a prescribed time period. Sets forth
requirements for information contained in the notice.
Sec. 841.022. MULTIDISCIPLINARY TEAM. Requires the TDJC executive
director and the commissioner of the Texas Department of Mental Health and
Retardation (MHMR) jointly to establish a multidisciplinary team that will
review available records of cases referred to the team. Sets forth the
people included in the makeup of the multidisciplinary team. Authorizes
team members to request outside assistance in making decisions. Requires
the team to assess each case within 30 days of receiving the notice, and to
refer the person to the special commitment center for examination, if the
team determines the person is a sexually violent predator.
Sec. 841.023. SPECIAL COMMITMENT CENTER. Authorizes TDCJ or MHMR, as
appropriate, to transfer to the special commitment center a person referred
to the center under Section 841.022(c). Requires the special commitment
center to determine whether the person is a sexually violent predator not
later than the 30th day after the date of the referral. Authorizes the
center to designate an expert to examine the person. Requires the
commissioner to give notice of the determination and provide corresponding
documentation to the attorney representing the state not later than the
30th day after the date of the referral, if the special commitment center
determines that the person is a sexually violent predator. Requires the
commissioner to give notice of the determination to TDCJ or MHMR, as
appropriate, not later than the 30th day after the date of the referral, if
the special commitment center determines that the person is not a sexually
violent predator. Requires TDCJ to transport the person to a secure
correctional facility or to a state hospital for release.
SUBCHAPTER C. PETITION ALLEGING PREDATOR STATUS
Sec. 841.041. PETITION ALLEGING PREDATOR STATUS. Authorizes the attorney
representing the state to file, in certain courts, a petition alleging that
a person referred to the attorney is a sexually violent predator, and
stating facts sufficient to support the allegation. Requires the attorney
representing the state to attempt to file the petition within a prescribed
time frame before the anticipated release or discharge date of the referred
person.
Sec. 841.042. PROBABLE CAUSE DETERMINATION. Requires the judge to
determine whether probable cause exists to believe that the person named in
the petition under Section 841.041 is a sexually violent predator.
Requires the judge to direct that the person be taken into custody and
detained at a special commitment center, if probable cause is determined to
exist.
Sec. 841.043. HEARING. Requires the attorney representing the state to
give the detained person notice of a hearing, within 72 hours, to contest
probable cause as to whether the person is a sexually violent predator.
Sets forth requirements for the judge at the hearing. Authorizes the
attorney representing the state to rely on the petition and supplement the
petition with documentary evidence or live testimony. Sets forth the
rights of the detained person.
SUBCHAPTER D. TRIAL
Sec. 841.061. TRIAL. Requires the judge to conduct a trial, not later
than the 60th day after the completion date of a hearing under Section
841.043, to determine whether the detained person is a sexually violent
predator. Establishes that the detained person or the state is entitled to
a jury trial on demand. Requires the demand to be filed in writing not
later than the 10th day before the trial. Provides that the number and
selection of jurors is governed by Chapter 33, Code of Criminal Procedure.
Sec. 841.062. DETERMINATION OF PREDATOR STATUS. Requires the judge or
jury to determine whether, beyond a reasonable doubt, the detained person
is a sexually violent predator. Provides that either the state or the
person is entitled to appeal the determination. Requires a unanimous
verdict if the jury determines that a person is a sexually violent
predator.
Sec. 841.063. DISCHARGE AFTER TRIAL. Requires the judge to direct the
person's discharge, unless the person is found to be a sexually violent
predator.
Sec. 841.064. COMMITMENT OF PREDATOR. Requires the judge to commit a
person determined to be a sexually violent offender to the custody of the
commissioner for control, care, and treatment at the special commitment
center until the person's behavioral abnormality has changed to the extent
that certain requirements have been met. Requires MHMR to enter into an
interagency contract with TDCJ for confinement of a person committed under
this section. Requires TDCJ to house or contract for housing of persons
committed under this section separately from inmates in the custody of
TDCJ. Requires MHMR to provide or contract for the provision of care and
treatment to a person committed under this section.
Sec. 841.065. CONTINUANCE. Authorizes the judge to continue a trial
conducted under Section 841.061 if the detained person is not substantially
prejudiced by the continuance, and certain conditions exist.
Sec. 841.066. MISTRIAL. Requires the judge, upon a mistrial, to direct
the person's continued detention at the special commitment center until
another trial is conducted. Requires a trial following a mistrial to begin
no later than the 90th day after the date a mistrial was declared, unless a
continuance is granted.
SUBCHAPTER E. COMMITMENT REVIEW.
Sec. 841.081. BIENNIAL EXAMINATION. Requires a person committed under
Section 841.064 to receive a biennial examination. Requires the
commissioner, in preparation for a judicial review, to provide a report of
the biennial examination to the judge who committed the person. Requires
the report to include consideration of whether conditional release to a
less restrictive alternative is in the best interest of the person and will
protect the community.
Sec. 841.082. BIENNIAL REVIEW. Requires the judge to conduct a biennial
review of the status of the committed person. Provides that the person is
entitled to be present at the review, but the person is not entitled to be
there. Requires the judge to set a hearing if, at the review, the judge
determines that probable cause exists to believe that the person's
behavioral abnormality has changed regarding certain conditions.
Sec. 841.083. HEARING. Entitles the committed person to be present at the
hearing by the judge and to have the benefit of all the constitutional
protections provided at the initial civil commitment proceeding. Entitles
the state to have a hearing before a jury and to choose an expert to
examine the person. Provides that the burden of proof is on the state to
prove beyond a reasonable doubt that the person's behavioral abnormality
has not changed to the extent that certain conditions exist.
SUBCHAPTER F. PETITIONS FOR DISCHARGE OR CONDITIONAL RELEASE TO LESS
RESTRICTIVE ALTERNATIVE
Sec. 841.101. AUTHORIZED PETITIONS FOR DISCHARGE OR CONDITIONAL RELEASE TO
LESS RESTRICTIVE ALTERNATIVE. Requires the commissioner to authorize a
person to petition the court for discharge or for conditional release to a
less restrictive alternative, if the commissioner determines that the
committed person's behavior is changed and the person will no longer engage
in a predatory act of sexual violence upon release from the special
commitment center. Requires the petitioner to serve a petition to the
court and an attorney representing the state. Requires the judge to order
a hearing on the petition not later than the 30th day after the date the
judge receives the petition. Entitles the state to choose an expert to
examine the petitioner. Requires the court, upon request, to conduct a
hearing before a jury. Provides that the burden of proof is on the state
to prove beyond a reasonable doubt that the person's behavioral abnormality
has not changed to the extent that certain conditions exist.
Sec. 841.102. UNAUTHORIZED PETITIONS FOR DISCHARGE OR CONDITIONAL RELEASE
TO LESS RESTRICTIVE ACTIVITY. Requires the commissioner to notify the
person in writing of the person's right, upon commitment and annually
thereafter, to petition the court for discharge or release to a less
restrictive alternative over the commissioner's objections.
Sec. 841.103. FRIVOLOUS PETITIONS FOR DISCHARGE OR CONDITIONAL RELEASE TO
LESS RESTRICTIVE ALTERNATIVE. Requires the judge, upon receipt of a
petition filed by the committed person without the commissioner's
authorization, to attempt to review the petition and determine if the
petition is based on frivolous grounds. Requires the judge to deny
petitions based on frivolous grounds without a hearing. Requires the
judge, except as provided by Subsection (c), to deny without a hearing a
petition that is filed without the commissioner's authorization providing
certain conditions are met. Establishes that the judge is not required to
deny a petition under Subsection (b) if the petition contains facts on
which a court could find that a petitioner's behavioral abnormality had
changed to the extent that a hearing was warranted.
SUBCHAPTER G. DISCHARGE OR CONDITIONAL RELEASE TO LESS RESTRICTIVE
ALTERNATIVE
Sec. 841.121. NOTICE OF DISCHARGE OR CONDITIONAL RELEASE TO LESS
RESTRICTIVE ALTERNATIVE. Requires the commissioner to give written notice
of a discharge or conditional release to the victim, a guardian of the
victim, or if deceased, a close relative of the deceased victim, before the
committed person's discharge or release to a less restrictive alternative.
Specifies conditions concerning failure to notify under this section.
Defines "close relative of a deceased victim," "guardian of a victim," and
"victim."
Sec. 841.122. CONDITIONAL RELEASE TO LESS RESTRICTIVE ALTERNATIVE.
Requires MHMR to provide or contract for the provision of treatment to a
person who is conditionally released to a less restrictive alternative.
Requires MHMR to enter into an interagency agreement with TDCJ for
necessary supervision of a person who is conditionally released to a less
restrictive alternative. Requires TDCJ to provide or contract for the
provision of supervision to the person. Authorizes the provision of
supervision to include housing to a person. Authorizes a service provider
other than TDCJ and MHMR to provide a service to a person, if the service
provider agrees in writing to provide the service.
Sec. 841.123. CONDITIONAL RELEASE TO LESS RESTRICTIVE ALTERNATIVE; COURT
ORDER. Requires the judge to enter an order directing a person's
conditional release to a less restrictive alternative if the judge
determines certain specified conditions. Requires the judge, before
entering an order to grant a person's conditional release, to impose on the
person necessary conditions to ensure the person's compliance with
treatment and to protect the community Sets forth conditions regarding
conditional release. Requires TDCJ and MHMR on order of the court to
examine the less restrictive alternative proposed by and recommend to the
judge any additional conditions necessary to ensure compliance with
treatment and to protect the community. Requires the judge to provide
copies of the imposed conditions to the person and to the service provider.
Authorizes a proposed course of treatment to include monitoring with a
polygraph and plethysmograph. Requires the judge, if the judge does not
enter an order granting conditional release, to remand the person to the
custody of the commissioner for control, care, and treatment at the special
commitment center, subject to discharge in accordance with this chapter.
Sec. 841.124. CONDITIONAL RELEASE TO LESS RESTRICTIVE ALTERNATIVE;
TREATMENT REPORT. Requires a treatment provider to submit a report, as
directed by TDCJ, to TDCJ stating whether the person is complying with
treatment requirements.
Sec. 841.125. CONDITIONAL RELEASE TO LESS RESTRICTIVE ALTERNATIVE; REVIEW.
Requires a judge who conditionally releases a person under Section 841.123
to conduct an annual review of the person's status. Authorizes the judge
to conduct the review more frequently due to certain motions. Requires the
judge, upon review, to determine whether to rescind or modify the
conditional release. Authorizes certain parties, on reasonable belief that
the person is not complying, to cause a person who is conditionally
released to be taken into custody and detained at a special commitment
center to determine whether to rescind or modify the person's conditional
release. Requires the judge to be notified, if a person other than the
judge causes the detention, by the end of the next judicial day.
Establishes that upon the request of either the person or the attorney
representing the state, the conditionally released person is entitled to an
immediate examination. Establishes that a conditionally released indigent
person is entitled to expert services as approved by the judge. Requires
the judge to promptly schedule a hearing, upon ordering or receiving notice
of the person's detention. Provides that hearsay evidence, if it is
considered reliable by the judge, is admissible at the hearing. Sets forth
requirements of the judge at the hearing.
Sec. 841.126. DEPARTMENTAL CERTIFICATE OR COURT ORDER DIRECTING RETURN TO
SPECIAL COMMITMENT CENTER. Authorizes MHMR, by issuing a special
certificate, to cause a person to be taken into custody and returned to a
special commitment center, if MHMR reasonably believes the person has
performed certain actions. Authorizes a judge to enter an order directing a
peace officer to take the person into custody and return the person to the
special commitment center, if MHMR issues a certificate. Requires a peace
officer, upon direction by a departmental certificate or court order, to
take the person into custody and return the person to the special
commitment center. Provides that the peace officer need not have
possession of the certificate at the time the officer acts under this
subsection. Establishes that a person commits an offense if the person is
absent without authority from the special commitment center, or if the
person violates a condition of release. Specifies that an offense under
this subsection is a state jail felony.
SUBCHAPTER H. ADMINISTRATION OF MEDICATIONS
Sec. 841.141. DEFINITIONS. Defines "capacity," "medication-related
emergency," "psychoactive medication."
Sec. 841.142. APPLICATION OF SUBCHAPTER. Establishes that this subchapter
applies only to the application of psychoactive medication to a person who
meets certain requirements.
Sec. 841.143. ADMINISTRATION OF MEDICATION TO PERSON. Prohibits a person
from administering a psychoactive medication to a person who refuses to
take the medication voluntarily, unless the person is having a medical
emergency or under an order authorizing the administration of medication
regardless of refusal.
Sec. 841.144. PHYSICIAN'S APPLICATION FOR ORDER TO AUTHORIZE PSYCHOACTIVE
MEDICATION; DATE OF HEARING. Authorizes a physician who is treating a
person, on behalf of the state, to file an application in certain courts
for an order to authorize the administration of psychoactive medication
regardless of the person's refusal. Sets forth conditions for
administration of psychoactive drugs if a person refuses. Sets forth the
requirements for an application filed under this section. Establishes that
an application filed under this section is separate from a petition for
that commitment as a sexually violent predator.
Sec. 841.145. RIGHTS OF PERSON. Entitles a person for whom an application
is filed, for an order to authorize the administration of a psychoactive
medication, to certain rights
Sec. 841.146. HEARING ON PERSON'S CAPACITY AND ORDER AUTHORIZING
PSYCHOACTIVE MEDICATION. Authorizes the court to issue an order
authorizing the administration of one or more classes of psychoactive
medication, only if the court, after the hearing, finds certain
requirements by clear and convincing evidence. Requires the court, in
making its findings, to consider certain conditions. Requires a hearing
under this subchapter to be conducted on the record by the probate judge,
or judge with jurisdiction. Authorizes a judge to refer a hearing to a
magistrate or a court-appointed master who has training regarding
psychoactive medications. Authorizes that magistrate or master to give
notice, set hearing dates, and appoint attorneys. Provides that a record
is not required if the hearing is held by a magistrate or court-appointed
master. Entitles a party to a trial de novo by the judge if an appeal of
the magistrate's or master's report is filed with the court within three
days after the date the report was issued. Requires the hearing to be held
within 30 days of the date of the filing of the application for an order to
authorize psychoactive medication. Authorizes the person or person's
attorney to request that the proceeding be transferred to a court in which
a judge is licensed to practice law in this state, if an appeal of a
magistrate's or master's report is held in a county court in which the
judge is not a licensed attorney. Requires the county judge to transfer
the case after receiving the request, and the receiving court shall hear
the case as if it had been originally filed in that court. Entitles that
person or person's attorney to have provided, as soon as possible, written
notification of the court's determinations under this section. Requires
the notification to include a statement of evidence on which the court
relied and the reasons for the court's determinations. Authorizes an order
under this section to authorize the administration to a person, regardless
of the person's refusal, of one or more classes of psychoactive medications
specified in the application and consistent with the person's diagnosis.
Authorizes the order to permit certain conditions regarding the
distribution of the medication to the person. Requires medications in the
order to conform to classes determined by MHMR. Authorizes an order under
this section to be reauthorized or modified on the petition of a party.
Provides that the order remains in effect pending the action on the
petition. Authorizes a modification to an order to change a class of
medication authorized in the order.
Sec. 841.147. COSTS. Requires the cost for hearings under this subchapter
to be paid by the court in which the application is filed.
Sec. 841.148. APPEAL. Authorizes a person to appeal under this
subchapter. Provides that an order under this subchapter is effective
pending an appeal.
Sec. 841.149. EFFECT OF ORDER. Establishes that a person's consent to
take psychoactive medication is not valid and may not be relied upon if the
person is subject to an order under Section 841.146. Establishes that the
issuance of an order is not a determination or adjudication of mental
incompetency and does not limit that person's rights as a citizen or the
person's property rights or legal capacity.
Sec. 841.150. EXPIRATION OF ORDER. Establishes that an order under
Section 841.146 expires on the expiration date of the order of commitment
as a sexually violent predator.
SUBCHAPTER I. MISCELLANEOUS PROVISIONS
Sec. 841.161. RULEMAKING AUTHORITY. Authorizes, by rule, the Texas Board
of Mental Health and Mental Retardation (board) to administer this chapter.
Requires rules adopted under this section to be consistent with the
purposes of this chapter. Authorizes the board, by rule, to define for
persons committed under this chapter appropriate rights based on
individualized risk assessments of those persons.
Sec. 841.162. RELEASE OR EXCHANGE OF INFORMATION. Requires, in order to
protect the public and enable a determination of whether a person is a
sexually violent predator, any entity that possesses information regarding
relevant information relating to a person's predator status to release the
information to an entity charged with determining that status. Requires,
in order to protect the public and enable the provision of control, care,
and treatment, to a sexually violent predator, any entity that possesses
information regarding relevant information relating to a person's predator
status to release the information to MHMR. Requires the state, upon
written request, to release to certain named entities any available
information regarding a person who is sought in connection with an attempt
to civilly commit the person as a sexually violent predator in another
state. Authorizes certain entities to exchange any available information
regarding a person, to facilitate and encourage the effective control,
care, and treatment of a person and to protect the public. Establishes
that information under this section includes information relating to the
care, treatment, criminal history, or the physical or mental health of the
person, as appropriate. Provides that the person's consent is not required
for release or exchange of information under this section.
Sec. 841.163. REPORT, RECORD, OR STATEMENT SUBMITTED TO COURT. Establishes
that certain reports submitted to the court under this chapter are part of
the record of the court. Requires the report, record, or statement,
notwithstanding Subsection (a), to be sealed and may be opened only on the
order of the judge or as provided by this chapter.
Sec. 841.164. CONSTITUTIONAL REQUIREMENTS FOR CARE AND TREATMENT. Requires
the detention and commitment of a person under this chapter to conform to
constitutional requirements for care and treatment.
Sec. 841.165. COUNSEL. Entitles a detained or committed person, at all
stages of the civil commitment proceedings, to the assistance of counsel.
Requires the court to appoint an attorney if the person is indigent.
Sec. 841.166. EXPERT. Authorizes a person detained under this chapter to
retain an expert to perform an examination or participate in a civil
commitment proceeding on the person's behalf. Requires a judge to
determine the necessity of an expert's services in the case of an indigent
person. Requires the judge, if the judge determines it is necessary, to
appoint an expert to perform an examination and participate in the trial
on the person's behalf. Requires the court to approve reasonable
compensation for expert services rendered on behalf of an indigent person
on filing of a certified compensation claim supported by a written
statement specifying certain information regarding the services rendered.
Requires the court to ensure that an expert retained or appointed has
reasonable access to a person examined under this chapter, as well as all
of the relevant records and reports.
Sec. 841.167. CIVIL COMMITMENT PROCEEDING; PROCEDURE AND COSTS.
Establishes that a person subject to a civil commitment proceeding under
this chapter and the attorney representing the state are entitled to a jury
trial or a hearing before a jury for that proceeding. Establishes that a
civil commitment hearing is subject to the rules of procedure and appeal
for civil cases. Requires the state to pay the costs of a civil commitment
proceeding conducted under this chapter, except as provided by Subchapter
H.
Sec. 841.168. IMMUNITY. Sets forth persons who are immune from liability
for good faith conduct under this chapter.
SECTION 2. Amends Sections 51.13(a) and (b), Family Code, to provide that
an order of adjudication or disposition of a juvenile in a proceeding under
this title is not a conviction of crime, and except as provided by Chapter
841, Health and Safety Code, an order of adjudication or disposition does
not impose any civil disability ordinarily resulting from a conviction.
Authorizes the adjudication or disposition of a child or evidence adduced
in a hearing under this title to be used only in subsequent civil
commitment proceedings under Chapter 841, Health and Safety Code. Makes
conforming changes.
SECTION 3. Amends Section 494.008(a), Government Code, to authorize the
director of the institutional division or the director's designee to
authorize those employees to transport and to apprehend persons subject to
civil commitment proceedings under Chapter 841, Health and Safety Code.
SECTION 4. Amends Section 250.001(3), Health and Safety Code, to redefine
"facility."
SECTION 5. Amends Chapter 321, Health and Safety Code, by adding Section
321.005, as follows:
Sec. 321.005. APPLICATION OF CHAPTER. Establishes that this chapter does
not apply to certain types of facilities or waive an immunity defense.
SECTION 6. Amends Chapter 533D, Health and Safety Code, by adding Section
533.0851, as follows:
Sec. 533.0851. FACILITIES FOR PREDATOR CARE. Authorizes MHMR, contingent
upon the agreement of the governing boards of MHMR and TDCJ, to transfer a
part of Rusk State Hospital to the TDCJ for confinement of sexually violent
predators, under Chapter 841. Defines "transfer."
SECTION 7. (a) Makes application of this Act prospective, except as
provided by Subsection (b).
(b) Makes application of this Act retroactive to January 1, 1996.
SECTION 8. Effective date: September 1, 1999.
SECTION 9. Emergency clause.