By Ehrhardt H.B. No. 1601
76R3034 PEP-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to a determination of mental competency in the prosecution
1-3 of criminal cases and to the disposition of defendants found to be
1-4 incompetent before trial or after conviction.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Article 46.02, Code of Criminal Procedure, is
1-7 amended by redesignating Section 1 as Section 1A and adding a new
1-8 Section 1 to read as follows:
1-9 Sec. 1. DEFINITION. In this article, "residential care
1-10 facility" has the meaning assigned by Section 591.003, Health and
1-11 Safety Code.
1-12 Sec. 1A [1]. INCOMPETENCY TO STAND TRIAL. (a) A person is
1-13 incompetent to stand trial if he does not have:
1-14 (1) sufficient present ability to consult with his
1-15 lawyer with a reasonable degree of rational understanding; or
1-16 (2) a rational as well as factual understanding of the
1-17 proceedings against him.
1-18 (b) A defendant is presumed competent to stand trial and
1-19 shall be found competent to stand trial unless proved incompetent
1-20 by a preponderance of the evidence.
1-21 SECTION 2. Sections 3(d) and (e), Article 46.02, Code of
1-22 Criminal Procedure, are amended to read as follows:
1-23 (d) A written report of the examination shall be submitted
1-24 to the court within 30 days of the order of examination, and the
2-1 court shall furnish copies of the report to the defense counsel and
2-2 the prosecuting attorney. The report shall include a description
2-3 of the procedures used in the examination, the examiner's
2-4 observations and findings pertaining to the defendant's competency
2-5 to stand trial, and the recommended treatment. If the examiner
2-6 concludes that the defendant is incompetent to stand trial, the
2-7 report shall include the examiner's observations and findings about
2-8 whether there is a substantial probability that the defendant will
2-9 attain the competence to stand trial in the foreseeable future.
2-10 The examiner shall also submit a separate report setting forth the
2-11 examiner's [his] observations and findings concerning:
2-12 (1) whether the defendant is a person with mental
2-13 illness and meets the criteria for court-ordered inpatient mental
2-14 health services under Subtitle C, Title 7, Health and Safety Code
2-15 [mentally ill and is likely to cause serious harm to himself or
2-16 others or will, if not treated, continue to suffer severe and
2-17 abnormal mental, emotional, or physical distress and will continue
2-18 to experience deterioration of his ability to function
2-19 independently and is unable to make a rational and informed
2-20 decision as to whether or not to submit to treatment]; or
2-21 (2) whether the defendant is a person with mental
2-22 retardation and meets the criteria for commitment to a residential
2-23 care facility under Subtitle D, Title 7, Health and Safety Code
2-24 [mentally retarded person as defined in the Mentally Retarded
2-25 Persons Act of 1977 (Article 5547-300, Vernon's Texas Civil
2-26 Statutes) and, because of retardation, represents a substantial
2-27 risk of physical impairment or injury to himself or others or is
3-1 unable to provide for and is not providing for his most basic
3-2 physical needs and requires commitment to a mental retardation
3-3 facility because he cannot be adequately and appropriately
3-4 habilitated in an available, less restrictive setting].
3-5 (e) If the examiner is a physician and concludes that the
3-6 defendant is a person with mental illness [mentally ill], the
3-7 examiner [he] shall complete and submit to the court a Certificate
3-8 of Medical Examination for Mental Illness. If the examiner is a
3-9 physician or a licensed psychologist and determines [concludes]
3-10 that the defendant is a person with mental retardation [mentally
3-11 retarded person] and if the determination [examination] has been
3-12 made in accordance with the standards established by Section
3-13 593.005, Health and Safety Code [conducted at a facility of the
3-14 Texas Department of Mental Health and Mental Retardation or at a
3-15 diagnostic center approved by the Texas Department of Mental Health
3-16 and Mental Retardation], the examiner shall submit to the court an
3-17 affidavit setting forth the conclusions reached as a result of the
3-18 [diagnostic] examination.
3-19 SECTION 3. Sections 4(a), (h), and (i), Article 46.02, Code
3-20 of Criminal Procedure, are amended to read as follows:
3-21 (a) If the court determines that there is evidence to
3-22 support a finding of incompetency to stand trial, a jury shall be
3-23 impaneled to determine the defendant's competency to stand trial.
3-24 This determination shall be made by a jury that has not been
3-25 selected to determine the guilt or innocence of the defendant. If
3-26 the defendant is found incompetent to stand trial, a further
3-27 hearing may be held to determine whether or not the defendant:
4-1 (1) is a person with mental illness and meets the
4-2 criteria for court-ordered inpatient mental health services under
4-3 Subtitle C, Title 7, Health and Safety Code [mentally ill and is
4-4 likely to cause serious harm to himself or others or will, if not
4-5 treated, continue to suffer severe and abnormal mental, emotional,
4-6 or physical distress and will continue to experience deterioration
4-7 of his ability to function independently and is unable to make a
4-8 rational and informed decision as to whether or not to submit to
4-9 treatment, and therefore requires in-patient mental health
4-10 services]; or
4-11 (2) is a person with mental retardation and meets the
4-12 criteria for commitment to a residential care facility under
4-13 Subtitle D, Title 7, Health and Safety Code [mentally retarded
4-14 person as defined in the Mentally Retarded Persons Act of 1977
4-15 (Article 5547-300, Vernon's Texas Civil Statutes), and, because of
4-16 retardation, represents a substantial risk of physical impairment
4-17 or injury to himself or others, or is unable to provide for and is
4-18 not providing for his most basic physical needs and requires
4-19 commitment to a mental retardation facility because he cannot be
4-20 adequately and appropriately habilitated in an available, less
4-21 restrictive setting].
4-22 (h) If the defendant is found incompetent to stand trial and
4-23 there is found no substantial probability that the defendant [he]
4-24 will become competent within the foreseeable future, and the court
4-25 determines there is evidence that the defendant is a person with
4-26 mental illness or mental retardation [mentally ill or is a mentally
4-27 retarded person], and all charges pending against the defendant are
5-1 not then dismissed, the court shall proceed under Section 6 of this
5-2 article or shall release the defendant.
5-3 (i) If the defendant is found incompetent to stand trial and
5-4 there is found no substantial probability that the defendant [he]
5-5 will become competent within the foreseeable future, and the court
5-6 determines there is evidence that the defendant is a person with
5-7 mental illness or mental retardation [mentally ill or is a mentally
5-8 retarded person], and all charges pending against the defendant are
5-9 then dismissed, the court shall proceed under Section 7 of this
5-10 article or shall release the defendant.
5-11 SECTION 4. Sections 5(a), (b), and (i), Article 46.02, Code
5-12 of Criminal Procedure, are amended to read as follows:
5-13 (a) When a defendant has been determined incompetent to
5-14 stand trial for a [any] felony [or for a misdemeanor] because of
5-15 mental illness or mental retardation, and absent a determination
5-16 that there is no substantial probability that the defendant will
5-17 attain competency to stand trial in the foreseeable future, the
5-18 court shall enter an order committing the defendant to the maximum
5-19 security unit of any facility designated by the Texas Department of
5-20 Mental Health and Mental Retardation, to an agency of the United
5-21 States operating a mental hospital, or to a Veterans Administration
5-22 hospital for a period not to exceed 18 months. When a defendant
5-23 has been determined incompetent to stand trial for a misdemeanor
5-24 because of mental illness, and absent a determination that there is
5-25 no substantial probability that the defendant will attain
5-26 competency to stand trial in the foreseeable future, the court
5-27 shall enter an order committing the defendant to the mental health
6-1 facility designated by the Commissioner of Mental Health and Mental
6-2 Retardation to serve the catchment area in which the committing
6-3 court is located for a period not to exceed 18 months. When a
6-4 defendant has been determined incompetent to stand trial for a
6-5 misdemeanor because of mental retardation, and absent a
6-6 determination that there is no substantial probability that the
6-7 defendant will attain competency to stand trial in the foreseeable
6-8 future, the court shall enter an order committing the defendant to
6-9 a residential care facility designated by the Commissioner of
6-10 Mental Health and Mental Retardation for a period not to exceed 18
6-11 months. An order issued under this subsection shall also place the
6-12 defendant in the custody of the sheriff for transportation to the
6-13 facility to be confined in the facility [therein] for further
6-14 examination and treatment toward the specific objective of
6-15 attaining competency to stand trial. The court shall order that a
6-16 transcript of all medical testimony received by the jury be
6-17 forthwith prepared by the court reporter and that the [such]
6-18 transcript, together with a statement of the facts and
6-19 circumstances surrounding the alleged offense, shall accompany the
6-20 patient to the facility.
6-21 (b) No person shall be committed to a mental health or
6-22 residential care [mental retardation] facility under this section
6-23 except on competent medical or psychiatric testimony.
6-24 (i) When the head of a facility to which the defendant is
6-25 committed discharges the defendant and the defendant is returned to
6-26 court, a final report shall be filed with the court documenting the
6-27 applicable reason for the discharge [therefor] under Subsection (f)
7-1 of this section, and the court shall furnish copies to the defense
7-2 counsel and the prosecuting attorney. If the head of the [such]
7-3 facility is of the opinion that the defendant is a person with
7-4 mental illness and meets the criteria for court-ordered inpatient
7-5 mental health services under Subtitle C, Title 7, Health and Safety
7-6 Code, the head of the facility shall cause to have completed and
7-7 submitted [mentally ill and is likely to cause serious harm to
7-8 himself or others or will, if not treated, continue to suffer
7-9 severe and abnormal mental, emotional, or physical distress and
7-10 will continue to experience deterioration of his ability to
7-11 function independently and is unable to make a rational and
7-12 informed decision as to whether or not to submit to treatment and
7-13 therefore requires in-patient mental health services, he shall
7-14 complete and submit] to the court a Certificate of Medical
7-15 Examination for Mental Illness. If the head of the [such] facility
7-16 is of the opinion that the defendant is a person with mental
7-17 retardation, as defined by Section 591.003, Health and Safety Code,
7-18 the head of the facility shall cause to be submitted [mentally
7-19 retarded, he shall submit] to the court an affidavit setting forth
7-20 the conclusions reached as a result of the [diagnostic]
7-21 examination. When the report is filed with the court, the court is
7-22 authorized to make a determination based solely on the report with
7-23 regard to the defendant's competency to stand trial, unless the
7-24 prosecuting attorney or the defense counsel objects in writing or
7-25 in open court to the findings of the report within 15 days from the
7-26 time the report is served on the parties. In the event of
7-27 objection, the issue shall be set for a hearing before the court
8-1 or, on motion by the defendant, the defense [his] counsel, the
8-2 prosecuting attorney, or the court, the hearing shall be held
8-3 before a jury. The hearing shall be held within 30 days following
8-4 the date of objection unless continued for good cause.
8-5 SECTION 5. Section 6, Article 46.02, Code of Criminal
8-6 Procedure, is amended to read as follows:
8-7 Sec. 6. CIVIL COMMITMENT--CHARGES PENDING. (a) If a
8-8 defendant is found incompetent to stand trial and there is found no
8-9 substantial probability that the defendant [he] will become
8-10 competent in the foreseeable future, or if the defendant is found
8-11 incompetent to stand trial and the defendant [he] has been
8-12 previously committed to a facility under Subsection (a) of Section
8-13 5 of this article in connection with the same offense, and, in
8-14 either event, all charges pending against the defendant are not
8-15 then dismissed, the court shall determine whether there is evidence
8-16 to support findings that the defendant is a person with mental
8-17 illness or a person with mental retardation [mentally ill or is
8-18 mentally retarded] and requires commitment to a mental health or
8-19 residential care [mental retardation] facility.
8-20 (b) If it appears to the court that the defendant may be a
8-21 person with mental illness [mentally ill] and there is on file with
8-22 the court Certificates of Medical Examination for Mental Illness by
8-23 two physicians, at least one of whom must not be employed by the
8-24 Texas Department of Mental Health and Mental Retardation, who have
8-25 examined the defendant within 30 days of the date of the commitment
8-26 hearing, the court shall impanel a jury to determine whether the
8-27 defendant shall be committed to a mental health facility or the
9-1 [such] hearing may be held before the jury impaneled to determine
9-2 the defendant's competency to stand trial.
9-3 (1) If there has not been filed with the court the
9-4 required [two such] Certificates of Medical Examination for Mental
9-5 Illness, the judge shall appoint the necessary physicians, at least
9-6 one of whom shall be a psychiatrist, if one is available in the
9-7 county, to examine the defendant and file certificates with the
9-8 court. The judge may order the defendant to submit to the
9-9 examination.
9-10 (2) Proceedings [The Texas Mental Health Code (Article
9-11 5547-1 et seq., Vernon's Texas Civil Statutes) shall govern
9-12 proceedings] for commitment of the defendant to a mental health
9-13 facility are governed by Subtitle C, Title 7, Health and Safety
9-14 Code, to the extent that subtitle applies [insofar as the
9-15 provisions of that code are applicable] and does not [in] conflict
9-16 with this article [herewith], except that the criminal court shall
9-17 conduct the proceedings whether or not the criminal court is also
9-18 the county court.
9-19 (3) If the defendant has not been under observation or
9-20 [and/or] treatment in a mental hospital for at least 60 days under
9-21 [the provisions of] Section 5(a) of this article [above] or under
9-22 an Order of Temporary Commitment under Subtitle C, Title 7, Health
9-23 and Safety Code, [pursuant to the provisions of the Texas Mental
9-24 Health Code (Article 5547-1 et seq., Vernon's Texas Civil
9-25 Statutes)] within the 12 months immediately preceding the date of
9-26 the hearing, the instructions submitting the issue shall be framed
9-27 to require the jury to state in its verdict whether the defendant
10-1 is a person with mental illness and whether the defendant meets the
10-2 criteria for court-ordered inpatient mental health services under
10-3 Subtitle C, Title 7, Health and Safety Code [mentally ill, and if
10-4 so:]
10-5 [(i) is likely to cause serious harm to himself;]
10-6 [(ii) is likely to cause serious harm to others;
10-7 or]
10-8 [(iii) will, if not treated, continue to suffer
10-9 severe and abnormal mental, emotional, or physical distress and
10-10 will continue to experience deterioration of his ability to
10-11 function independently and is unable to make a rational and
10-12 informed decision as to whether or not to submit to treatment].
10-13 (4) If the jury finds under Subdivision (3) that the
10-14 defendant is not a person with mental illness [mentally ill] or
10-15 does not meet the criteria for court-ordered inpatient mental
10-16 health services, the court shall order the immediate release of the
10-17 defendant.
10-18 If the jury finds under Subdivision (3) that the
10-19 defendant is a person with mental illness [mentally ill] and meets
10-20 the criteria for court-ordered inpatient mental health services,
10-21 the court shall order that the defendant be committed to a state
10-22 mental hospital for inpatient [in-patient] care for a period not
10-23 exceeding 90 days.
10-24 (5) If the defendant has been under observation or
10-25 [and/or] treatment in a mental hospital for at least 60 days under
10-26 [the provisions of] Section 5(a) of this article [above] or under
10-27 an Order of Temporary Commitment under Subtitle C, Title 7, Health
11-1 and Safety Code, [pursuant to the provisions of the Texas Mental
11-2 Health Code (Article 5547-1 et seq., Vernon's Texas Civil
11-3 Statutes)] within the 12 months immediately preceding the date of
11-4 the hearing, the instructions submitting the issue shall be framed
11-5 to require the jury to state in its verdict whether the defendant
11-6 is a person with mental illness and whether the defendant meets the
11-7 criteria for court-ordered inpatient mental health services under
11-8 Subtitle C, Title 7, Health and Safety Code [mentally ill, and if
11-9 so:]
11-10 [(i) is likely to cause serious harm to himself;]
11-11 [(ii) is likely to cause serious harm to others;
11-12 or]
11-13 [(iii) will, if not treated, continue to suffer
11-14 severe and abnormal mental, emotional, or physical distress and
11-15 will continue to experience deterioration of his ability to
11-16 function independently and is unable to make a rational and
11-17 informed decision as to whether or not to submit to treatment].
11-18 (6) If the jury finds under Subdivision (5) that the
11-19 defendant is not a person with mental illness [mentally ill] or
11-20 that the defendant [he] does not meet the criteria for
11-21 court-ordered inpatient mental health services, the court shall
11-22 enter an order discharging the defendant.
11-23 If the jury finds under Subdivision (5) that the
11-24 defendant is a person with mental illness [mentally ill] and meets
11-25 the criteria for court-ordered inpatient mental health services,
11-26 the court shall order that the defendant be committed as a patient
11-27 to a state mental hospital for inpatient [in-patient] care for a
12-1 period not to exceed 12 months.
12-2 (7) If the court enters an order committing the
12-3 defendant to a state mental hospital, the defendant shall be
12-4 treated and released in conformity with Subtitle C, Title 7, Health
12-5 and Safety Code, [to the Texas Mental Health Code] except as may be
12-6 provided in this article.
12-7 (c) If it appears to the court that the defendant may be a
12-8 person with mental retardation [mentally retarded] and there is on
12-9 file with the court a determination of mental retardation made in
12-10 accordance with the standards established by Section 593.005,
12-11 Health and Safety Code [an Affidavit of Examination of Alleged
12-12 Mentally Retarded Person based upon an examination conducted at a
12-13 facility of the Texas Department of Mental Health and Mental
12-14 Retardation or at a diagnostic center approved by that department],
12-15 the court shall impanel a jury to determine whether the defendant
12-16 is a person with mental retardation [mentally retarded person] or
12-17 the [such] hearing may be held before the jury impaneled to
12-18 determine the defendant's competency to stand trial.
12-19 (1) If that determination [such affidavit] is not on
12-20 file with the court, the judge shall arrange for the [such
12-21 diagnostic] examination of the defendant by a facility of the Texas
12-22 Department of Mental Health and Mental Retardation or by a local
12-23 mental health and mental retardation authority [diagnostic center]
12-24 approved by that department. The judge may order the defendant to
12-25 submit to the examination. The county shall reimburse the facility
12-26 or authority that [center which] conducts the examination for the
12-27 reasonable and necessary expenses incurred in conducting the [such]
13-1 examination.
13-2 (2) Proceedings [The Mentally Retarded Persons Act of
13-3 1977 (Article 5547-300, Vernon's Texas Civil Statutes) shall govern
13-4 proceedings] for commitment of the defendant to a residential care
13-5 [mental retardation] facility are governed by Subtitle D, Title 7,
13-6 Health and Safety Code, to the extent that subtitle applies
13-7 [insofar as the provisions of that Act are applicable] and does not
13-8 [in] conflict with this article [herewith], except that the
13-9 criminal court shall conduct the proceedings whether or not the
13-10 criminal court is also a county court.
13-11 (3) The instructions submitting the issue of mental
13-12 retardation to the jury shall be framed to require the jury to
13-13 state in its verdict whether the defendant is a person with mental
13-14 retardation [mentally retarded person] as defined by Section
13-15 591.003, Health and Safety Code [in the Mentally Retarded Persons
13-16 Act of 1977 (Article 5547-300, Vernon's Texas Civil Statutes)], and
13-17 if so, whether the defendant meets the criteria for commitment to a
13-18 residential care facility[:]
13-19 [(i) because of retardation, represents a
13-20 substantial risk of physical impairment or injury to himself or
13-21 others or is unable to provide for and is not providing for his
13-22 most basic physical needs;]
13-23 [(ii) cannot be adequately and appropriately
13-24 habilitated in an available, less restrictive setting; and]
13-25 [(iii) the mental retardation facility provides
13-26 habilitative services, care, training, and treatment appropriate
13-27 for his needs].
14-1 (4) If the jury finds that the defendant is not a
14-2 person with mental retardation [mentally retarded person] as
14-3 defined by Section 591.003, Health and Safety Code [in the Mentally
14-4 Retarded Persons Act of 1977 (Article 5547-300, Vernon's Texas
14-5 Civil Statutes)], or that the defendant [he] does not meet the
14-6 criteria for commitment to a residential care [mental retardation]
14-7 facility, the court shall enter an order discharging the defendant.
14-8 (5) If the jury finds that the defendant is a person
14-9 with mental retardation [mentally retarded person] as defined by
14-10 Section 591.003, Health and Safety Code [in the Mentally Retarded
14-11 Persons Act of 1977 (Article 5547-300, Vernon's Texas Civil
14-12 Statutes)], and meets the criteria for commitment to a residential
14-13 care [mental retardation] facility, the court shall enter an order
14-14 declaring that fact and that the person is committed to a
14-15 residential care [mental retardation] facility of the Texas
14-16 Department of Mental Health and Mental Retardation.
14-17 (6) If the court enters an order committing the
14-18 defendant to a residential care [mental retardation] facility of
14-19 the Texas Department of Mental Health and Mental Retardation, the
14-20 defendant shall be treated and released in accordance with Subtitle
14-21 D, Title 7, Health and Safety Code [the Mentally Retarded Persons
14-22 Act of 1977 (Article 5547-300, Vernon's Texas Civil Statutes)],
14-23 except as otherwise provided by this article.
14-24 (d) In the proceedings conducted under this section:
14-25 (1) an application [no Application] for court-ordered
14-26 temporary or extended mental health services or [Application] to
14-27 have the defendant declared a person with mental retardation may
15-1 not [mentally retarded person shall] be required;
15-2 (2) the provisions of Subtitles C and D, Title 7,
15-3 Health and Safety Code, [the Texas Mental Health Code and the
15-4 Mentally Retarded Persons Act of 1977] relating to notice of
15-5 hearing do not apply [shall not be applicable];
15-6 (3) appeals from the criminal court proceedings under
15-7 this section shall be to the court of appeals as in the proceedings
15-8 for court-ordered inpatient mental health services under Subtitle
15-9 C, Title 7, Health and Safety Code, [the Texas Mental Health Code]
15-10 or for commitment to a residential care [mental retardation]
15-11 facility under Subtitle D, Title 7, Health and Safety Code [the
15-12 Mentally Retarded Persons Act of 1977].
15-13 SECTION 6. Section 7, Article 46.02, Code of Criminal
15-14 Procedure, is amended to read as follows:
15-15 Sec. 7. CIVIL COMMITMENT--CHARGES DISMISSED. If a defendant
15-16 is found incompetent to stand trial and there is found no
15-17 substantial probability that the defendant [he] will become
15-18 competent in the foreseeable future, or if the defendant is found
15-19 incompetent to stand trial and the defendant [he] has been
15-20 previously committed to a facility under Section 5 of this article
15-21 and all charges pending against the defendant are then dismissed,
15-22 the court shall determine whether there is evidence to support a
15-23 finding [findings] that the defendant is either a person with
15-24 mental illness [mentally ill] or [is] a person with mental
15-25 retardation [mentally retarded person]. If it appears to the court
15-26 that there is evidence to support either finding [of such
15-27 findings], the court shall enter an order transferring the
16-1 defendant to the appropriate court for civil commitment
16-2 proceedings, stating that all charges pending against the defendant
16-3 in that court have been dismissed, and may order the defendant
16-4 detained in jail or other suitable place pending the prompt
16-5 initiation and prosecution by the attorney for the state or other
16-6 person designated by the court of appropriate civil proceedings to
16-7 determine whether the defendant will be committed to a mental
16-8 health or residential care [mental retardation] facility; provided,
16-9 however, that a patient placed in a facility of the Texas
16-10 Department of Mental Health and Mental Retardation pending civil
16-11 hearing under this section may be detained in that [such] facility
16-12 only pursuant to an Order of Protective Custody issued under
16-13 Subtitle C, Title 7, Health and Safety Code, [pursuant to the
16-14 provisions of the Texas Mental Health Code] and with the consent of
16-15 the head of the facility, or the court may give the defendant into
16-16 the care of a responsible person on satisfactory security being
16-17 given for the defendant's [his] proper care and protection;
16-18 otherwise, the defendant shall be discharged.
16-19 SECTION 7. Section 8, Article 46.02, Code of Criminal
16-20 Procedure, is amended to read as follows:
16-21 Sec. 8. GENERAL. (a) A person committed to a mental health
16-22 or residential care [mental retardation] facility as a result of
16-23 the proceedings initiated pursuant to Section 6 or Section 7 of
16-24 this article and who presently has felony charges pending against
16-25 the person [him] or has had felony charges against the person [him]
16-26 dismissed pursuant to Section 7 of this article shall be committed
16-27 to the maximum security unit of any facility designated by the
17-1 Texas Department of Mental Health and Mental Retardation. Within
17-2 60 days following arrival at the maximum security unit, the person
17-3 shall be transferred to a nonsecurity unit or to a community
17-4 program of a mental health or residential care [mental retardation]
17-5 facility or a community mental health and mental retardation center
17-6 designated by the Texas Department of Mental Health and Mental
17-7 Retardation unless the person is determined to be manifestly
17-8 dangerous by a review board with the Texas Department of Mental
17-9 Health and Mental Retardation. The Commissioner of Mental Health
17-10 and Mental Retardation shall appoint a review board of five
17-11 members, including one psychiatrist licensed to practice medicine
17-12 in the State of Texas and two persons who work directly with
17-13 persons with mental illness or mental retardation [mental health
17-14 patients or mentally retarded clients], to determine whether the
17-15 person is manifestly dangerous and, as a result of the danger the
17-16 person [which he] presents, requires continued placement in a
17-17 maximum security unit. The review board shall make no
17-18 determination as to the person's need for treatment. A finding
17-19 that the person is not manifestly dangerous is not a medical
17-20 determination that the person no longer meets the criteria for
17-21 involuntary civil commitment under Subtitle C or D, Title 7, Health
17-22 and Safety Code [the Texas Mental Health Code (Article 5547-1 et
17-23 seq., Vernon's Texas Civil Statutes) or the Mentally Retarded
17-24 Persons Act of 1977 (Article 5547-300, Vernon's Texas Civil
17-25 Statutes)]. If the superintendent of the facility at which the
17-26 maximum security unit is located disagrees with the determination,
17-27 then the matter will be referred to the Commissioner of Mental
18-1 Health and Mental Retardation who will resolve the disagreement by
18-2 deciding whether the person is manifestly dangerous. A person
18-3 committed to a mental health facility as a result of the
18-4 proceedings initiated pursuant to Section 6 or Section 7 of this
18-5 article who presently has misdemeanor charges pending against the
18-6 person [him] or has had misdemeanor charges against the person
18-7 [him] dismissed pursuant to Section 7 of this article shall be
18-8 committed to the mental health facility which is designated by the
18-9 Commissioner of Mental Health and Mental Retardation to serve the
18-10 catchment area in which the committing court is located. A person
18-11 committed to a residential care [mental retardation] facility as a
18-12 result of the proceedings initiated pursuant to Section 6 or 7 of
18-13 this article and who presently has misdemeanor charges pending
18-14 against or has had misdemeanor charges against the person [him]
18-15 dismissed pursuant to Section 7 of this article shall be committed
18-16 to a [the maximum security unit of any] facility designated by the
18-17 Texas Department of Mental Health and Mental Retardation [for a
18-18 maximum of 60 days pending placement in a nonsecurity facility].
18-19 (b) The court shall order that a transcript of all medical
18-20 testimony received in both the criminal proceedings and the civil
18-21 commitment proceedings be prepared forthwith by the court reporters
18-22 and that the [such] transcripts, together with a statement of the
18-23 facts and circumstances surrounding the alleged offense, shall
18-24 accompany the patient to the mental health or residential care
18-25 [mental retardation] facility.
18-26 (c) If the head of a mental health facility determines that
18-27 a patient committed to a state mental hospital for a period not
19-1 exceeding 90 days as a result of proceedings initiated pursuant to
19-2 Section 6 or Section 7 of this article requires extended
19-3 court-ordered inpatient mental health services, the head of the
19-4 facility [he] shall notify the court from which the patient was
19-5 committed in writing at least 30 days prior to the expiration of
19-6 the temporary commitment. The court from which the patient was
19-7 committed shall order the sheriff of the county in which the court
19-8 is located to return the patient for a hearing on court-ordered
19-9 inpatient mental health services or shall make arrangements for the
19-10 hearing to be held in an appropriate court of the county in which
19-11 the patient is hospitalized. Provided, however, that if the
19-12 patient has not received a hearing on court-ordered inpatient
19-13 mental health services by the date on which the temporary
19-14 commitment expires, the head of the facility in which the patient
19-15 is hospitalized shall cause the patient to be immediately
19-16 transported to the committing court and placed in the custody of
19-17 the sheriff of the county in which the court is located. That
19-18 county shall reimburse the facility of the Texas Department of
19-19 Mental Health and Mental Retardation for the mileage and per diem
19-20 expenses of the personnel required to transport the defendant
19-21 calculated in accordance with the state travel regulations in
19-22 effect at the time.
19-23 (d) The head of a mental health or residential care [mental
19-24 retardation] facility to which a person has been committed or
19-25 transferred as a result of the proceedings initiated pursuant to
19-26 Section 6 of this article and who has received written notice from
19-27 a court or prosecuting attorney that criminal charges are pending
20-1 against the person shall notify the court in writing at least 14
20-2 days prior to the discharge of the person unless the notice
20-3 provided for in Subsection (c) of this section [above] has been
20-4 given. A written report as to the competency of the person to
20-5 stand trial shall accompany the notice of discharge.
20-6 (e) On written notice by the head of a mental health or
20-7 residential care [mental retardation] facility that in the [his]
20-8 opinion of the head of the facility, a person who has been civilly
20-9 committed to that facility and against whom criminal charges are
20-10 pending is competent to stand trial, or on good cause shown by the
20-11 defendant, the defense [his] counsel, or the prosecuting attorney,
20-12 the court in which the criminal charges are pending may hold a
20-13 hearing to determine the competency of the defendant to stand
20-14 trial. The hearing shall be before a jury unless waived by
20-15 agreement of the parties. The order setting the hearing shall
20-16 order the defendant placed in the custody of the sheriff for
20-17 transportation to the court. The court may appoint disinterested
20-18 experts to examine the defendant in accordance with the provisions
20-19 of Section 3 of this article. If the defendant is found to be
20-20 competent to stand trial, the proceedings on the criminal charges
20-21 may be continued. If the defendant is found incompetent to stand
20-22 trial and is under an order of commitment to a mental health or
20-23 residential care [mental retardation] facility, the court shall
20-24 order the defendant [him] placed in the custody of the sheriff for
20-25 transportation to that facility. If the defendant is found
20-26 incompetent to stand trial and has been discharged from a mental
20-27 health or residential care [mental retardation] facility, the court
21-1 may civilly recommit the person under Subtitle C or D, Title 7,
21-2 Health and Safety Code [pursuant to the provisions of the Texas
21-3 Mental Health Code, as amended (Article 5547-1 et seq., Vernon's
21-4 Texas Civil Statutes), or pursuant to the provisions of the
21-5 Mentally Retarded Persons Act of 1977, as amended (Article
21-6 5547-300, Vernon's Texas Civil Statutes)]. The [Such a]
21-7 recommitment shall be made to the facility from which the defendant
21-8 was discharged if accomplished under Subtitle C, Title 7, Health
21-9 and Safety Code, [the Texas Mental Health Code] and to the Texas
21-10 Department of Mental Health and Mental Retardation if accomplished
21-11 under Subtitle D, Title 7, Health and Safety Code [the Mentally
21-12 Retarded Persons Act of 1977]. Subsection (d) of this section [The
21-13 provisions of (d) above] shall again be followed prior to discharge
21-14 of the committed person.
21-15 SECTION 8. Article 46.01, Code of Criminal Procedure, is
21-16 repealed.
21-17 SECTION 9. The change in law made by Sections 1-7 of this
21-18 Act applies only to a competency hearing initiated on or after the
21-19 effective date of this Act. A competency hearing initiated before
21-20 the effective date of this Act is covered by the law in effect when
21-21 the hearing was initiated, and the former law is continued in
21-22 effect for that purpose.
21-23 SECTION 10. This Act takes effect September 1, 1999.
21-24 SECTION 11. The importance of this legislation and the
21-25 crowded condition of the calendars in both houses create an
21-26 emergency and an imperative public necessity that the
21-27 constitutional rule requiring bills to be read on three several
22-1 days in each house be suspended, and this rule is hereby suspended.