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.