By Cuellar H.B. No. 50 76R11 KEL-D A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the civil commitment of sexually violent predators. 1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-4 SECTION 1. Title 4, Government Code, is amended by adding 1-5 Subtitle H to read as follows: 1-6 SUBTITLE H. CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS 1-7 CHAPTER 521. CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS 1-8 SUBCHAPTER A. GENERAL PROVISIONS 1-9 Sec. 521.001. DEFINITIONS. In this chapter: 1-10 (1) "Commissioner" means the commissioner of mental 1-11 health and mental retardation. 1-12 (2) "Department" means the Texas Department of Mental 1-13 Health and Mental Retardation. 1-14 (3) "Mental abnormality" means a congenital or 1-15 acquired condition that: 1-16 (A) affects a person's emotional or volitional 1-17 capacity; and 1-18 (B) predisposes the person to commit a sexually 1-19 violent offense to the extent that the person is a menace to the 1-20 health and safety of another person. 1-21 (4) "Predatory act" means an act directed toward a 1-22 person with whom a relationship has been established or promoted 1-23 for the primary purpose of victimization. 1-24 (5) "Secure correctional facility" means a county jail 2-1 or a confinement facility operated by or under contract with any 2-2 division of the Texas Department of Criminal Justice. 2-3 (6) "Sexually violent offense" means: 2-4 (A) an offense under Section 21.11, Penal Code; 2-5 (B) an offense under Section 22.011, Penal Code; 2-6 (C) an offense under Section 22.021, Penal Code; 2-7 (D) an offense under Section 43.25, Penal Code; 2-8 (E) an offense under prior state law that 2-9 contains elements substantially similar to the elements of an 2-10 offense listed in Paragraph (A), (B), (C), or (D); 2-11 (F) an offense under federal law or the law of 2-12 another state that contains elements substantially similar to the 2-13 elements of an offense listed in Paragraph (A), (B), (C), or (D); 2-14 or 2-15 (G) an attempt, conspiracy, or solicitation, as 2-16 defined by Chapter 15, Penal Code, to commit an offense listed in 2-17 Paragraph (A), (B), (C), or (D). 2-18 (7) "Sexually violent predator" means a person who: 2-19 (A) has been convicted of or charged with a 2-20 sexually violent offense; and 2-21 (B) suffers from a mental abnormality or 2-22 personality disorder that makes the person likely to engage in a 2-23 predatory act of sexual violence, if the person is not confined in 2-24 a secure correctional facility. 2-25 Sec. 521.002. APPLICATION. This chapter does not prohibit 2-26 the committed person from filing a petition for release under this 2-27 chapter. 3-1 (Sections 521.003-521.020 reserved for expansion 3-2 SUBCHAPTER B. NOTICE OF APPARENT PREDATOR; 3-3 INITIAL DETERMINATION 3-4 Sec. 521.021. NOTICE OF APPARENT PREDATOR. (a) The Texas 3-5 Department of Criminal Justice shall give to the attorney general 3-6 and the multidisciplinary team established under Section 521.022 3-7 written notice of the anticipated release of a person who: 3-8 (1) is serving a sentence for a sexually violent 3-9 offense or an offense the judgment for which contains an 3-10 affirmative finding under Article 42.015, Code of Criminal 3-11 Procedure; and 3-12 (2) appears to the department to suffer from an 3-13 abnormality or disorder described by Section 521.001(7)(B). 3-14 (b) The department shall give to the attorney general and 3-15 the multidisciplinary team established under Section 521.022 3-16 written notice of the anticipated discharge of a person who is 3-17 committed to the department after: 3-18 (1) having been charged with a sexually violent 3-19 offense and found incompetent to stand trial under Article 46.02, 3-20 Code of Criminal Procedure, or an offense for which at the 3-21 competency hearing an affirmative finding is entered under Article 3-22 42.015, Code of Criminal Procedure; or 3-23 (2) having been found not guilty by reason of insanity 3-24 under Article 46.03, Code of Criminal Procedure, of a sexually 3-25 violent offense or an offense the judgment for which contains an 3-26 affirmative finding under Article 42.015, Code of Criminal 3-27 Procedure. 4-1 (c) The department or the Texas Department of Criminal 4-2 Justice, as appropriate, shall give the notice not later than the 4-3 90th day before the person's anticipated release or discharge date. 4-4 (d) The notice must contain the following information: 4-5 (1) the person's name, identifying factors, 4-6 anticipated residence after release, and criminal history; and 4-7 (2) documentation of the person's institutional 4-8 adjustment and actual treatment. 4-9 Sec. 521.022. MULTIDISCIPLINARY TEAM. (a) The executive 4-10 director of the Texas Department of Criminal Justice and the 4-11 commissioner jointly shall establish a multidisciplinary team to 4-12 review available records of a person referred to the team under 4-13 Section 521.021. 4-14 (b) Not later than the 30th day after the date the 4-15 multidisciplinary team receives notice under Section 521.021, the 4-16 team shall assess whether the person is a sexually violent 4-17 predator. 4-18 (c) The multidisciplinary team shall give notice of its 4-19 assessment to the attorney general and the prosecutor's review 4-20 committee established under Section 521.023. The team shall also 4-21 make its assessment available to those entities. 4-22 Sec. 521.023. PROSECUTOR'S REVIEW COMMITTEE. The attorney 4-23 general shall establish a prosecutor's review committee to review 4-24 available records of a person referred to the attorney general 4-25 under Section 521.021. The prosecutor's review committee shall 4-26 assist the attorney general in determining whether the person is a 4-27 sexually violent predator. 5-1 (Sections 521.024-521.040 reserved for expansion 5-2 SUBCHAPTER C. PETITION ALLEGING PREDATOR STATUS 5-3 Sec. 521.041. PETITION ALLEGING PREDATOR STATUS. (a) If 5-4 with the assistance of the prosecutor's review committee the 5-5 attorney general determines that a person referred to the attorney 5-6 general under Section 521.021 is a sexually violent predator, the 5-7 attorney general may file a petition alleging that the person is a 5-8 sexually violent predator and stating sufficient facts to support 5-9 the allegation. 5-10 (b) The attorney general must file the petition not later 5-11 than the 75th day after the date the attorney general receives 5-12 notice under Section 521.021. 5-13 Sec. 521.042. PROBABLE CAUSE DETERMINATION. (a) On the 5-14 filing of a petition under Section 521.041, the judge shall 5-15 determine whether probable cause exists to believe that the person 5-16 named in the petition is a sexually violent predator. 5-17 (b) If probable cause is determined to exist, the judge 5-18 shall direct that the person be taken into custody. 5-19 Sec. 521.043. HEARING. (a) Within 72 hours after a person 5-20 is taken into custody under Section 521.042, the attorney general 5-21 shall give the detained person notice of, and an opportunity to 5-22 appear in person at, a hearing to contest probable cause as to 5-23 whether the person is a sexually violent predator. 5-24 (b) At the hearing, the judge shall: 5-25 (1) verify the detained person's identity; and 5-26 (2) determine whether probable cause exists to believe 5-27 that the person is a sexually violent predator. 6-1 (c) The attorney general may rely on the petition and 6-2 supplement the petition with documentary evidence or live 6-3 testimony. 6-4 (d) The rights of the detained person include the following: 6-5 (1) the right to present evidence on the person's 6-6 behalf; 6-7 (2) the right to cross-examine a witness who testifies 6-8 against the person; and 6-9 (3) the right to view and copy all petitions and 6-10 reports in the court file. 6-11 (Sections 521.044-521.060 reserved for expansion 6-12 SUBCHAPTER D. TRIAL 6-13 Sec. 521.061. PRETRIAL EXAMINATION. If the judge determines 6-14 that probable cause exists to believe that the detained person is a 6-15 sexually violent predator, the judge shall direct the transfer of 6-16 the person to a secure correctional facility for examination as to 6-17 whether the person is a sexually violent predator. An expert shall 6-18 perform the examination. 6-19 Sec. 521.062. TRIAL. (a) Not later than the 60th day after 6-20 the completion date of a hearing conducted under Section 521.043, 6-21 the judge shall conduct a trial to determine whether the detained 6-22 person is a sexually violent predator. 6-23 (b) The person detained or the state is entitled to a jury 6-24 trial on demand. A demand for a jury trial must be filed in 6-25 writing not later than the fourth day before the date the trial is 6-26 scheduled to begin. 6-27 (c) Number and selection of jurors is governed by Chapter 7-1 33, Code of Criminal Procedure. 7-2 Sec. 521.063. DETERMINATION OF PREDATOR STATUS. (a) The 7-3 judge or jury shall determine whether, beyond a reasonable doubt, 7-4 the detained person is a sexually violent predator. Either the 7-5 state or the person is entitled to appeal the determination. 7-6 (b) A jury determination that the person is a sexually 7-7 violent predator must be by unanimous verdict. 7-8 Sec. 521.064. RELEASE AFTER TRIAL. If the judge or jury is 7-9 not satisfied beyond a reasonable doubt that the detained person is 7-10 a sexually violent predator, the judge shall direct the person's 7-11 release. 7-12 Sec. 521.065. COMMITMENT OF PREDATOR. (a) If the judge or 7-13 jury determines that the detained person is a sexually violent 7-14 predator, the judge shall commit the person to the custody of the 7-15 commissioner for control, care, and treatment until the person's 7-16 condition has changed to the extent that the person is safe to be 7-17 at large and if released is not likely to engage in a predatory act 7-18 of sexual violence. 7-19 (b) The department shall enter into an interagency contract 7-20 with the Texas Department of Criminal Justice for the confinement 7-21 of a person committed under this section. The Texas Department of 7-22 Criminal Justice shall house persons committed under this section 7-23 separately from inmates in the custody of the Texas Department of 7-24 Criminal Justice. The department shall provide care and treatment 7-25 to a person committed under this section. 7-26 Sec. 521.066. CONTINUANCE. The judge may continue a trial 7-27 conducted under Section 521.062 if the detained person is not 8-1 substantially prejudiced by the continuance and: 8-2 (1) on the request of either party and a showing of 8-3 good cause; or 8-4 (2) on the judge's own motion in the due 8-5 administration of justice. 8-6 Sec. 521.067. MISTRIAL. (a) On a mistrial, the judge shall 8-7 direct the detained person's continued detention in a facility 8-8 until another trial is conducted. 8-9 (b) A trial following a mistrial must begin not later than 8-10 the 90th day after the date a mistrial was declared in the previous 8-11 trial, unless the later trial is continued as provided by Section 8-12 521.066. 8-13 (Sections 521.068-521.080 reserved for expansion 8-14 SUBCHAPTER E. INCOMPETENCY 8-15 Sec. 521.081. INCOMPETENCY. (a) If a person charged with a 8-16 sexually violent offense or an offense for which an affirmative 8-17 finding under Article 42.015, Code of Criminal Procedure, may be 8-18 entered has been found incompetent to stand trial and is about to 8-19 be released under Article 46.02, Code of Criminal Procedure, and 8-20 the person's commitment is sought under Section 521.065, the court 8-21 shall first hear evidence and determine whether the person 8-22 committed the act charged. 8-23 (b) The hearing on this issue must comply with all the 8-24 procedures specified in this section. The rules of evidence 8-25 applicable in a criminal case and all constitutional rights 8-26 available to a defendant at a criminal trial, other than the right 8-27 not to be tried while incompetent, apply to the hearing. 9-1 (c) The judge or jury shall make specific findings on: 9-2 (1) whether the person committed the act charged and, 9-3 if the offense is not a sexually violent offense, whether the 9-4 offense was nonetheless sexually motivated; 9-5 (2) the extent to which the person's incompetence or 9-6 developmental disability affected the outcome of the hearing, 9-7 including its effect on the person's ability to consult with and 9-8 assist counsel and to testify on the person's own behalf; 9-9 (3) the extent to which the evidence could be 9-10 reconstructed without the person's assistance; and 9-11 (4) the strength of the prosecution's case. 9-12 (d) If the judge or jury determines beyond a reasonable 9-13 doubt that the person committed the act charged or if appropriate, 9-14 that the offense was sexually motivated, the judge shall enter a 9-15 final order, appealable by the person, on that issue and may 9-16 proceed to consider whether the person should be committed under 9-17 Section 521.065. 9-18 (Sections 521.082-521.100 reserved for expansion 9-19 SUBCHAPTER F. COMMITMENT REVIEW 9-20 Sec. 521.101. ANNUAL EXAMINATION. (a) A person committed 9-21 under Section 521.065 shall receive an annual examination of the 9-22 person's condition. 9-23 (b) The commissioner shall provide a report of the annual 9-24 examination to the judge that committed the person under Section 9-25 521.065. 9-26 Sec. 521.102. ANNUAL REVIEW. (a) The judge shall conduct 9-27 an annual review of the status of the committed person. 10-1 (b) The person is entitled to have counsel represent the 10-2 person at the annual review, but the person is not entitled to be 10-3 present at that review. 10-4 (c) If the judge at the annual review determines that 10-5 probable cause exists to believe that the person's condition has 10-6 changed to the extent that the person is safe to be at large and if 10-7 released is not likely to engage in a predatory act of sexual 10-8 violence, the judge shall set a hearing. 10-9 Sec. 521.103. HEARING. (a) At a hearing set by the judge 10-10 under Section 521.102, the committed person is entitled to be 10-11 present and to have the benefit of all constitutional protections 10-12 provided to the person at the initial civil commitment proceeding. 10-13 (b) The state is entitled to have the hearing conducted 10-14 before a jury and to choose an expert to examine the person. 10-15 (c) The burden of proof at the hearing is on the state to 10-16 prove beyond a reasonable doubt that the person's condition has not 10-17 changed to the extent that the person is safe to be at large and if 10-18 released is not likely to engage in a predatory act of sexual 10-19 violence. 10-20 (Sections 521.104-521.120 reserved for expansion 10-21 SUBCHAPTER G. PETITION FOR RELEASE 10-22 Sec. 521.121. AUTHORIZED PETITION FOR RELEASE. (a) If the 10-23 commissioner determines that the committed person's condition has 10-24 changed to the extent that the person is safe to be at large and if 10-25 released is not likely to engage in a predatory act of sexual 10-26 violence, the commissioner shall authorize the person to petition 10-27 the court for release. 11-1 (b) The petitioner shall serve the petition on the court and 11-2 the attorney general. 11-3 (c) The judge shall order a hearing on the petition not 11-4 later than the 30th day after the date the judge receives the 11-5 petition. 11-6 (d) The state is entitled to choose an expert to examine the 11-7 petitioner. 11-8 (e) On request of the petitioner or the attorney general, 11-9 the court shall conduct the hearing before a jury. 11-10 (f) The burden of proof at the hearing is on the state to 11-11 prove beyond a reasonable doubt that the petitioner's condition has 11-12 not changed to the extent that the petitioner is safe to be at 11-13 large and if released is not likely to engage in a predatory act of 11-14 sexual violence. 11-15 Sec. 521.122. UNAUTHORIZED PETITION FOR RELEASE. The 11-16 commissioner shall provide the committed person with annual written 11-17 notice of the person's right to petition the court for release over 11-18 the commissioner's objection. 11-19 Sec. 521.123. FRIVOLOUS PETITION FOR RELEASE. (a) On 11-20 receipt of a petition for release filed by the committed person 11-21 without the commissioner's authorization, the judge shall attempt 11-22 as soon as practicable to review the petition and determine if the 11-23 petition is based on frivolous grounds. If the petition is based 11-24 on frivolous grounds, the judge shall deny the petition without a 11-25 hearing. 11-26 (b) Except as provided by Subsection (c), the judge shall 11-27 deny without a hearing a petition for release that is filed without 12-1 the commissioner's authorization if: 12-2 (1) the petitioner previously filed another petition 12-3 for release without the commissioner's authorization; and 12-4 (2) the judge determined on review of the previous 12-5 petition or following a hearing that: 12-6 (A) the petition was frivolous; or 12-7 (B) the petitioner's condition had not changed 12-8 to the extent that the petitioner was safe to be at large and if 12-9 released was not likely to engage in a predatory act of sexual 12-10 violence. 12-11 (c) The judge is not required to deny a petition under 12-12 Subsection (b) if the petition contains facts on which a court 12-13 could find that the petitioner's condition had changed to the 12-14 extent that a hearing was warranted. 12-15 (Sections 521.124-521.140 reserved for expansion 12-16 SUBCHAPTER H. RELEASE OF COMMITTED PERSON 12-17 Sec. 521.141. NOTICE OF RELEASE. (a) Before the committed 12-18 person is released, the commissioner shall give written notice of 12-19 the release to the victim, a guardian of the victim, or a close 12-20 relative of the victim, if the victim is deceased. 12-21 (b) Failure to notify under this section: 12-22 (1) is not a reason to postpone release; and 12-23 (2) does not create a cause of action against the 12-24 state or a state employee acting within the scope of employment. 12-25 (c) In this section, "close relative of a deceased victim," 12-26 "guardian of a victim," and "victim" have the meanings assigned by 12-27 Article 56.01, Code of Criminal Procedure. 13-1 (Sections 521.142-521.160 reserved for expansion 13-2 SUBCHAPTER I. MISCELLANEOUS PROVISIONS 13-3 Sec. 521.161. CONFIDENTIAL OR PRIVILEGED INFORMATION. Any 13-4 entity that possesses relevant information relating to a person's 13-5 potential status as a sexual predator that is otherwise 13-6 confidential or privileged shall release the information to the 13-7 attorney general to protect the public, to meet the notice 13-8 requirement provided by Section 521.021, and to enable any 13-9 determination of predator status made under this chapter. 13-10 Sec. 521.162. REPORT, RECORD, OR STATEMENT SUBMITTED TO 13-11 COURT. (a) A psychological report, drug and alcohol report, 13-12 treatment record, report of the diagnostic center, medical record, 13-13 or victim impact statement submitted to the court under this 13-14 chapter is part of the record of the court. 13-15 (b) Notwithstanding Subsection (a), the report, record, or 13-16 statement must be sealed and may be opened only on order of the 13-17 judge or as provided by this chapter. 13-18 Sec. 521.163. CONSTITUTIONAL REQUIREMENTS FOR CARE AND 13-19 TREATMENT. The involuntary detention or commitment of a person 13-20 under this chapter must conform to constitutional requirements for 13-21 care and treatment. 13-22 Sec. 521.164. COUNSEL. (a) At all stages of the civil 13-23 commitment proceedings under this chapter, a person subject to this 13-24 chapter is entitled to the assistance of counsel. 13-25 (b) If the person is indigent, the court shall appoint 13-26 counsel to assist the person. 13-27 Sec. 521.165. EXPERT. (a) A person who is examined under 14-1 this chapter may retain an expert to perform an examination or 14-2 participate in a civil commitment proceeding on the person's 14-3 behalf. 14-4 (b) On the request of an indigent person examined under this 14-5 chapter, the judge shall determine whether expert services for the 14-6 person are necessary. If the judge determines that the services 14-7 are necessary, the judge shall appoint an expert to perform an 14-8 examination or participate in a civil commitment proceeding on the 14-9 person's behalf. 14-10 (c) The court shall approve reasonable compensation for 14-11 expert services rendered on behalf of an indigent person on the 14-12 filing of a certified compensation claim supported by a written 14-13 statement specifying: 14-14 (1) time expended on behalf of the person; 14-15 (2) services rendered on behalf of the person; 14-16 (3) expenses incurred on behalf of the person; and 14-17 (4) compensation received in the same case or for the 14-18 same services from any other source. 14-19 (d) The court shall ensure that an expert retained or 14-20 appointed under this section has reasonable access to a person 14-21 examined under this chapter for purposes of examination, as well as 14-22 to all relevant medical and psychological records and reports. 14-23 Sec. 521.166. IMMUNITY. The following persons are immune 14-24 from liability for good faith conduct under this chapter: 14-25 (1) an employee or officer of the department or of the 14-26 Texas Department of Criminal Justice; 14-27 (2) a member of the multidisciplinary team established 15-1 under Section 521.022; 15-2 (3) a member of the prosecutor's review committee 15-3 established under Section 521.023; and 15-4 (4) a person contracting, appointed, or volunteering 15-5 to perform a service under this chapter. 15-6 SECTION 2. Chapter 42, Code of Criminal Procedure, is 15-7 amended by adding Article 42.015 to read as follows: 15-8 Art. 42.015. FINDING OF SEXUAL MOTIVATION. (a) In the 15-9 trial of an offense other than a sexually violent offense, the 15-10 court shall make an affirmative finding of fact and enter the 15-11 affirmative finding in the judgment in the case if the court 15-12 determines that the defendant committed the offense with an intent 15-13 to arouse or gratify the sexual desire of any person. 15-14 (b) In a hearing under Article 46.02, if the court 15-15 determines that a defendant charged with an offense other than a 15-16 sexually violent offense is incompetent to stand trial but did 15-17 commit the offense with the intent to arouse or gratify the sexual 15-18 desire of any person, the court shall enter that finding in the 15-19 record of the hearing. 15-20 (c) In this article, "sexually violent offense" has the 15-21 meaning assigned by Section 521.001, Government Code. 15-22 SECTION 3. This Act takes effect September 1, 1999. 15-23 SECTION 4. The importance of this legislation and the 15-24 crowded condition of the calendars in both houses create an 15-25 emergency and an imperative public necessity that the 15-26 constitutional rule requiring bills to be read on three several 15-27 days in each house be suspended, and this rule is hereby suspended.