SRC-DPW S.B. 421 76(R)   BILL ANALYSIS


Senate Research Center   S.B. 421
76R3034 PEP-FBy: Shapiro
Criminal Justice
3/23/1999
As Filed


DIGEST 

Currently, some of the language contained in Chapter 46, Code of Criminal
Procedure, is archaic and inconsistent with current mental health
terminology.  Examinations to establish mental illness and mental
retardation under this section require revision to be in accordance with
the health provisions of the  Code of Criminal Procedures guidelines.  The
1980 Supreme Court case, Vitek v. Jones, ruled that it is unconstitutional
to transfer prison inmates to state mental hospitals, but a contradictory
provision in the current law remains.   

This bill would alter the legal terms in the current statute to read in the
preferred, "people first" language; require a mental health examiner find
that the defendant in a criminal case to meet the criteria set forth in the
Mental Health provisions of the Code of Criminal Procedure when
establishing mental illness or mental retardation; requires a mental health
examiner to be a physician or licensed psychologist; requires a person with
mental illness who is found to be incompetent to stand trial and has
committed a misdemeanor to be committed to a residential care facility; and
repeals Section 46.01, Code of Criminal Procedure (Mental Illness After
Conviction). 

PURPOSE

As proposed, S.B. 421 establishes criteria to be used in the determination
of mental competency in the prosecution of criminal cases and to the
disposition of defendants found to be incompetent before trial or after
conviction. 

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Article 46.02, Code of Criminal Procedure, by
redesignating Section 1 as Section 1A and adding Section 1, as follows: 

 Sec. 1. DEFINITION. Defines "residential care facility."  Makes conforming
change. 

SECTION 2.  Amends Sections 3(d) and (e), Article 46.02, Code of Criminal
Procedure, to require an examiner to submit a report concerning whether the
defendant is a person with mental illness requiring court-ordered inpatient
mental health services under Title 7C, Health and Safety Code, or is a
person with mental retardation requiring commitment to a residential care
facility under Title 7D, Health and Safety Code.  Deletes a provision
regarding criteria for mental illness.  Deletes a provision defining
retardation under the Mentally Retarded Persons Act of 1977.  Requires a
physician to submit a Certificate of Medical Examination for Mental Illness
if a determination is made that the defendant is a person will mental
illness, rather than mentally ill.  Requires a physician or licensed
psychologist to submit an affidavit, if a determination is made in
accordance with standards in Section 593.005, Health and Safety Code, that
the defendant is a person with mental retardation, rather than a mentally
retarded person.  Deletes a provision designating the approved facilities
for the examination.  Makes nonsubstantive changes. 

SECTION 3. Amends Sections 4(a), (h), and (i), Article 46.02, Code of
Criminal Procedure, to require the court to proceed under SECTION 7 or
release the defendant, if the court determines the defendant is a person
with a mental illness or retardation, rather than mentally ill or mentally
retarded person. Deletes provisions requiring inpatient mental health.
Makes conforming and nonsubstantive changes. 
 
SECTION 4. Amends Sections 5(a), (b), and (i), Article 46.02, Code of
Criminal Procedure, to require the court to commit a defendant, determined
incompetent to stand trial solely for a felony because of mental illness or
retardation, to a maximum security unit.  Requires the court to enter an
order to commit a defendant, who has been determined incompetent to stand
trial for a misdemeanor due to mental retardation with no probability of
attaining competency, to a residential care facility designated by the
Commissioner of Mental Health and Mental Retardation for no more than 18
months.  Prohibits a person from being committed to a residential care,
rather than a mental retardation facility, without medical or psychiatric
testimony.  Requires a Certificate of Medical Examination for Mental
Illness to be filed with the court, if the head of the facility determines
the defendant meets the criteria for courtordered inpatient mental health
services, under Title7C, Health and Safety Code.  Requires the head of a
facility to submit an affidavit if the head of the facility determines the
defendant to be a person with mental retardation, under the guides defined
in Section 591.003, Health and Safety Code.  Makes conforming changes. 

SECTION 5. Amends Section 6, Article 46.02, Code of Criminal Procedure, to
set forth requirements for trial proceedings.  Requires the court to
impanel a jury to determine if the defendant is a person with mental
retardation or competent to stand trial, if there is on file with the court
a determination of mental retardation in accordance with Section 593.005,
Health and Safety Code.  Deletes a provision specifying an Affidavit of
Examination of Alleged Mentally Retarded Person to meet the requirement to
impanel a jury to determine competency to stand trial.  Authorizes a local
mental health and mental retardation authority, rather than a diagnostic
center,  to conduct the examination.  Provides that proceedings for
commitment to a residential care facility are governed by Title 7D, Health
and Safety Code, to the extent that the subtitle applies and does not
conflict with this article.  Deletes text regarding applicable provisions.
Requires the jury to state whether the defendant meets the criteria for
commitment, if the jury determines the defendant to be a person with mental
retardation.  Provides that an application for mental health services to
have the defendant declared as a person with a mental retardation, may not
be required.  Provides that provisions of Subtitles C and D, Title 7,
Health and Human Code relating to notice of hearing do not apply.  Requires
appeals from criminal court proceedings under this section to be to the
court of appeals as in the proceedings for court-ordered inpatient mental
health services.  Makes conforming and nonsubstantive changes. 

SECTION 6. Amends Section 7, Article 46.02, Code of Criminal Procedure, to
make conforming and nonsubstantive changes. 

SECTION 7. Amends Section 8, Article 46.02, Code of Criminal Procedure, to
require notification of a discharge of a person with pending criminal
charges, unless provided for in Subsection (c) of the section. Deletes a
requirement for commitment to a maximum security unit.  Deletes a provision
for the maximum number of days a defendant is to be placed in a maximum
security unit pending placement. Makes conforming and nonsubstantive
changes. 

SECTION 8. Repealer: Article 46.01, Code of Criminal Procedure (Mental
Illness After Conviction). 

SECTION 9. Makes application of this Act prospective.

SECTION 10. Effective date: September 1, 1999.

SECTION 11. Emergency clause.