By Wise H.B. No. 157
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.