By Moreno of Harris                                   H.B. No. 2765
         76R8609 PEP-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to amending the law regarding determinations of mental
 1-3     competency in the prosecution of criminal cases to correct certain
 1-4     references to other laws.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1.  Section 3(d), Article 46.02, Code of Criminal
 1-7     Procedure, is amended to read as follows:
 1-8           (d)  A written report of the examination shall be submitted
 1-9     to the court within 30 days of the order of  examination, and the
1-10     court shall furnish copies of the report to the defense counsel and
1-11     the prosecuting attorney.  The report shall include a description
1-12     of the procedures used in the examination, the examiner's
1-13     observations and findings pertaining to the defendant's competency
1-14     to stand trial, and recommended treatment.  If the examiner
1-15     concludes that the defendant is incompetent to stand trial, the
1-16     report shall include the examiner's observations and findings about
1-17     whether there is a substantial probability that the defendant will
1-18     attain the competence to stand trial in the foreseeable future.
1-19     The examiner shall also submit a separate report setting forth his
1-20     observations and findings concerning:
1-21                 (1)  whether the defendant is mentally ill and is
1-22     likely to cause serious harm to himself or others or will, if not
1-23     treated, continue to suffer severe and abnormal mental, emotional,
1-24     or physical distress and will continue to experience deterioration
 2-1     of his ability to function independently and is unable to make a
 2-2     rational and informed decision as to whether or not to submit to
 2-3     treatment; or
 2-4                 (2)  whether the defendant is a person with mental
 2-5     retardation as defined by Section 591.003, Health and Safety Code,
 2-6     [mentally retarded person as defined in the Mentally Retarded
 2-7     Persons Act of 1977 (Article 5547-300, Vernon's Texas Civil
 2-8     Statutes)] and, because of retardation, represents a substantial
 2-9     risk of physical impairment or injury to himself or others or is
2-10     unable to provide for and is not providing for his most basic
2-11     physical needs and requires commitment to a mental retardation
2-12     facility because he cannot be adequately and appropriately
2-13     habilitated in an available, less restrictive setting.
2-14           SECTION 2.  Section 4(a), Article 46.02, Code of Criminal
2-15     Procedure, is amended to read as follows:
2-16           (a)  If the court determines that there is evidence to
2-17     support a finding of incompetency to stand trial, a jury shall be
2-18     impaneled to determine the defendant's competency to stand trial.
2-19     This determination shall be made by a jury that has not been
2-20     selected to determine the guilt or innocence of the defendant.  If
2-21     the defendant is found incompetent to stand trial, a further
2-22     hearing may be held to determine whether or not the defendant:
2-23                 (1)  is mentally ill and is likely to cause serious
2-24     harm to himself or others or will, if not treated, continue to
2-25     suffer severe and abnormal mental, emotional, or physical distress
2-26     and will continue to experience deterioration of his ability to
2-27     function independently and is unable to make a rational and
 3-1     informed decision as to whether or not to submit to treatment, and
 3-2     therefore requires in-patient mental health services; or
 3-3                 (2)  is a person with mental retardation as defined by
 3-4     Section 591.003, Health and Safety Code [mentally retarded person
 3-5     as defined in the Mentally Retarded Persons Act of 1977 (Article
 3-6     5547-300, Vernon's Texas Civil Statutes)], and, because of
 3-7     retardation, represents a substantial risk of physical impairment
 3-8     or injury to himself or others, or is unable to provide for and is
 3-9     not providing for his most basic physical needs and requires
3-10     commitment to a mental retardation facility because he cannot be
3-11     adequately and appropriately habilitated in an available, less
3-12     restrictive setting.
3-13           SECTION 3.  Sections 6(b), (c), and (d), Article 46.02, Code
3-14     of Criminal Procedure, are amended to read as follows:
3-15           (b)  If it appears to the court that the defendant may be
3-16     mentally ill and there is on file with the court Certificates of
3-17     Medical Examination for Mental Illness by two physicians, at least
3-18     one of whom must not be employed by the Texas Department of Mental
3-19     Health and Mental Retardation, who have examined the defendant
3-20     within 30 days of the date of the commitment hearing, the court
3-21     shall impanel a jury to determine whether the defendant shall be
3-22     committed to a mental health facility or such hearing may be held
3-23     before the jury impaneled to determine the defendant's competency
3-24     to stand trial.
3-25                 (1)  If there has not been filed with the court two
3-26     such Certificates of Medical Examination for Mental Illness, the
3-27     judge shall appoint the necessary physicians, at least one of whom
 4-1     shall be a psychiatrist if one is available in the county, to
 4-2     examine the defendant and file certificates with the court.  The
 4-3     judge may order the defendant to submit to the examination.
 4-4                 (2)  Proceedings [The Texas Mental Health Code (Article
 4-5     5547-1 et seq., Vernon's Texas Civil Statutes) shall govern
 4-6     proceedings] for commitment of the defendant to a mental health
 4-7     facility are governed by Subtitle C, Title 7, Health and Safety
 4-8     Code, to the extent that subtitle applies [insofar as the
 4-9     provisions of that  code are applicable] and does not [in] conflict
4-10     with this article [herewith], except that the criminal court shall
4-11     conduct the  proceedings whether or not the criminal court is also
4-12     the county court.
4-13                 (3)  If the defendant has not been under observation
4-14     and/or treatment in a mental hospital for at least 60 days under
4-15     the provisions of Section 5(a) above or under an Order of Temporary
4-16     Commitment under Subtitle C, Title 7, Health and Safety Code,
4-17     [pursuant to the provisions of the Texas Mental Health Code
4-18     (Article 5547-1 et seq., Vernon's Texas Civil Statutes)] within the
4-19     12 months immediately preceding the date of the hearing, the
4-20     instructions submitting the issue shall be framed to require the
4-21     jury to state in its verdict whether the defendant is mentally ill,
4-22     and if so:
4-23                       (i)  is likely to cause serious harm to himself;
4-24                       (ii)  is likely to cause serious harm to others;
4-25     or
4-26                       (iii)  will, if not treated, continue to suffer
4-27     severe and abnormal mental, emotional, or physical distress and
 5-1     will continue to experience deterioration of his ability to
 5-2     function independently and is unable to make a rational and
 5-3     informed decision as to whether or not to submit to treatment.
 5-4                 (4)  If the jury finds that the defendant is not
 5-5     mentally ill or does not meet the criteria for court-ordered mental
 5-6     health services, the court shall order the immediate release of the
 5-7     defendant.
 5-8           If the jury finds that the defendant is mentally ill and
 5-9     meets the criteria for court-ordered mental health services, the
5-10     court shall order that the defendant be committed to a state mental
5-11     hospital for in-patient care for a period not exceeding 90 days.
5-12                 (5)  If the defendant has been under observation and/or
5-13     treatment in a mental hospital for at least 60 days under the
5-14     provisions of Section 5(a) above or under an Order of Temporary
5-15     Commitment under Subtitle C, Title 7, Health and Safety Code,
5-16     [pursuant to the provisions of the Texas Mental Health Code
5-17     (Article 5547-1 et seq., Vernon's Texas Civil Statutes)] within the
5-18     12 months immediately preceding the date of the hearing, the
5-19     instructions submitting the issue shall be framed to require the
5-20     jury to state in its verdict whether the defendant is mentally ill,
5-21     and if so:
5-22                       (i)  is likely to cause serious harm to himself;
5-23                       (ii)  is likely to cause serious harm to others;
5-24     or
5-25                       (iii)  will, if not treated, continue to suffer
5-26     severe and abnormal mental, emotional, or physical distress and
5-27     will continue to experience deterioration of his ability to
 6-1     function independently and is unable to make a rational and
 6-2     informed decision as to whether or not to submit to treatment.
 6-3                 (6)  If the jury finds that the defendant is not
 6-4     mentally ill or that he does not meet the criteria for
 6-5     court-ordered mental health services, the court shall enter an
 6-6     order discharging the defendant.
 6-7           If the jury finds that the defendant is mentally ill and
 6-8     meets the criteria for court-ordered mental health services, the
 6-9     court shall order that the defendant be committed as a patient to a
6-10     state mental hospital for in-patient care for a period not to
6-11     exceed 12 months.
6-12                 (7)  If the court enters an order committing the
6-13     defendant to a state mental hospital, the defendant shall be
6-14     treated and released in conformity with Subtitle C, Title 7, Health
6-15     and Safety Code, [to the Texas Mental Health Code] except as may be
6-16     provided  in this article.
6-17           (c)  If it appears to the court that the defendant may be
6-18     mentally retarded and there is on file with the court an Affidavit
6-19     of Examination of Alleged Mentally Retarded Person based upon an
6-20     examination conducted at a facility of the Texas Department of
6-21     Mental Health and Mental Retardation or at a diagnostic center
6-22     approved by that department, the court shall impanel a jury to
6-23     determine whether the defendant is a mentally retarded person or
6-24     such hearing may be held before the jury impaneled to determine the
6-25     defendant's competency to stand trial.
6-26                 (1)  If such affidavit is not on file with the court,
6-27     the judge shall arrange for such diagnostic examination of the
 7-1     defendant by a facility of the Texas Department of Mental Health
 7-2     and Mental Retardation or by a diagnostic center approved by that
 7-3     department.  The judge may order the defendant to submit to the
 7-4     examination.  The county shall reimburse the facility or center
 7-5     which conducts the examination for the reasonable and necessary
 7-6     expenses incurred in conducting such examination.
 7-7                 (2)  Proceedings [The Mentally Retarded Persons Act of
 7-8     1977 (Article 5547-300, Vernon's Texas Civil Statutes) shall govern
 7-9     proceedings] for commitment of the defendant to a mental
7-10     retardation facility are governed by Subtitle D, Title 7, Health
7-11     and Safety Code, to the extent that subtitle applies [insofar as
7-12     the  provisions of that Act are applicable] and does not [in]
7-13     conflict with this article [herewith], except that the criminal
7-14     court shall  conduct the proceedings whether or not the criminal
7-15     court is also a county court.
7-16                 (3)  The instructions submitting the issue of mental
7-17     retardation to the jury shall be framed to require the jury to
7-18     state in its verdict whether the defendant is a person with mental
7-19     retardation [mentally retarded person] as defined by Section
7-20     591.003,  Health and Safety Code [in the Mentally Retarded Persons
7-21     Act of 1977 (Article 5547-300, Vernon's Texas Civil Statutes)], and
7-22     if so:
7-23                       (i)  because of retardation, represents a
7-24     substantial risk of physical impairment or injury to himself or
7-25     others or is unable to provide for and is not providing for his
7-26     most basic physical needs;
7-27                       (ii)  cannot be adequately and appropriately
 8-1     habilitated in an available, less restrictive setting; and
 8-2                       (iii)  the mental retardation facility provides
 8-3     habilitative services, care, training, and treatment appropriate
 8-4     for his needs.
 8-5                 (4)  If the jury finds that the defendant is not a
 8-6     person with mental retardation [mentally retarded person] as
 8-7     defined by Section 591.003, Health and Safety Code [in the Mentally
 8-8     Retarded Persons Act of 1977 (Article 5547-300, Vernon's Texas
 8-9     Civil Statutes)], or that he does not meet the criteria for
8-10     commitment to a mental retardation facility, the court shall enter
8-11     an order discharging the defendant.
8-12                 (5)  If the jury finds that the defendant is a person
8-13     with mental retardation [mentally retarded person] as defined by
8-14     Section 591.003, Health and Safety Code [in the Mentally Retarded
8-15     Persons Act of 1977 (Article 5547-300, Vernon's Texas Civil
8-16     Statutes)], and meets the criteria for commitment to a mental
8-17     retardation facility, the court shall enter an order declaring that
8-18     fact and that the person is committed to a mental retardation
8-19     facility of the Texas Department of Mental Health and Mental
8-20     Retardation.
8-21                 (6)  If the court enters an order committing the
8-22     defendant to a mental retardation facility of the Texas Department
8-23     of Mental Health and Mental Retardation, the defendant shall be
8-24     treated and released in accordance with Subtitle D, Title 7, Health
8-25     and Safety Code [the Mentally Retarded Persons Act of 1977
8-26     (Article 5547-300, Vernon's Texas Civil Statutes)], except as
8-27     otherwise provided by this article.
 9-1           (d)  In the proceedings conducted under this section:
 9-2                 (1)  no Application for court-ordered temporary or
 9-3     extended mental health services or Application to have the
 9-4     defendant declared a mentally retarded person shall be required;
 9-5                 (2)  the provisions of Subtitles C and D, Title 7,
 9-6     Health and Safety Code, [the Texas Mental Health Code and the
 9-7     Mentally  Retarded Persons Act of 1977] relating to notice of
 9-8     hearing shall not be applicable;
 9-9                 (3)  appeals from the criminal court proceedings under
9-10     this section shall be to the court of appeals as in the proceedings
9-11     for court-ordered mental health services under Subtitle C, Title 7,
9-12     Health and Safety Code, [the Texas Mental Health Code] or for
9-13     commitment to a mental retardation facility under Subtitle D, Title
9-14     7, Health and Safety Code [the Mentally Retarded Persons Act of
9-15     1977].
9-16           SECTION 4.  Section 7, Article 46.02, Code of Criminal
9-17     Procedure, is amended to read as follows:
9-18           Sec. 7.  CIVIL COMMITMENT--CHARGES DISMISSED.  If a defendant
9-19     is found incompetent to stand trial and there is found no
9-20     substantial probability that he will become competent in the
9-21     foreseeable future, or if the defendant is found incompetent to
9-22     stand trial and he has been previously committed to a facility
9-23     under Section 5 of this article and all charges pending against the
9-24     defendant are then dismissed, the court shall determine whether
9-25     there is evidence to support findings that the defendant is either
9-26     mentally ill or is a mentally retarded person.  If it appears to
9-27     the court that there is evidence to support either of such
 10-1    findings, the court shall enter an order transferring the defendant
 10-2    to the appropriate court for civil commitment proceedings, stating
 10-3    that all charges pending against the defendant in that court have
 10-4    been dismissed, and may order the defendant detained in jail or
 10-5    other suitable place pending the prompt initiation and prosecution
 10-6    by the attorney for the state or other person designated by the
 10-7    court of appropriate civil proceedings to determine whether the
 10-8    defendant will be committed to a mental health or mental
 10-9    retardation facility; provided, however, that a patient placed in a
10-10    facility of the Texas Department of Mental Health and Mental
10-11    Retardation pending civil hearing under this section may be
10-12    detained in such facility only pursuant to an Order of Protective
10-13    Custody issued under Subtitle C, Title 7, Health and Safety Code,
10-14    [pursuant to the provisions of the Texas  Mental Health Code] and
10-15    with the consent of the head of the facility, or the court may give
10-16    the defendant into the care of a responsible person on satisfactory
10-17    security being given for his proper care and protection; otherwise,
10-18    the defendant shall be discharged.
10-19          SECTION 5.  Sections 8(a) and (e), Article 46.02, Code of
10-20    Criminal Procedure, are amended to read as follows:
10-21          (a)  A person committed to a mental health or mental
10-22    retardation facility as a result of the proceedings initiated
10-23    pursuant to Section 6 or Section 7 of this article and who
10-24    presently has felony charges pending against him or has had felony
10-25    charges against him dismissed pursuant to Section 7 of this article
10-26    shall be committed to the maximum security unit of any facility
10-27    designated by the Texas Department of Mental Health and Mental
 11-1    Retardation.  Within 60 days following arrival at the maximum
 11-2    security unit, the person shall be transferred to a nonsecurity
 11-3    unit or to a community program of a mental health or mental
 11-4    retardation facility or a community mental health and mental
 11-5    retardation center designated by the Texas Department of Mental
 11-6    Health and Mental Retardation unless the person is determined to be
 11-7    manifestly dangerous by a review board with the Texas Department of
 11-8    Mental Health and Mental Retardation.  The Commissioner of Mental
 11-9    Health and Mental Retardation shall appoint a review board of five
11-10    members, including one psychiatrist licensed to practice medicine
11-11    in the State of Texas and two persons who work directly with mental
11-12    health patients or mentally retarded clients, to determine whether
11-13    the person is manifestly dangerous and, as a result of the danger
11-14    which he presents, requires continued placement in a maximum
11-15    security unit.  The review board shall make no determination as to
11-16    the person's need for treatment.  A finding that the person is not
11-17    manifestly dangerous is not a medical determination that the person
11-18    no longer meets the criteria for involuntary civil commitment under
11-19    Subtitle C or D, Title 7, Health and Safety Code [the Texas Mental
11-20    Health Code (Article 5547-1 et seq., Vernon's Texas Civil Statutes)
11-21    or the Mentally Retarded Persons Act of 1977 (Article 5547-300,
11-22    Vernon's Texas Civil Statutes)].  If the superintendent of the
11-23    facility at which the maximum security unit is located disagrees
11-24    with the determination, then the matter will be referred to the
11-25    Commissioner of Mental Health and Mental Retardation who will
11-26    resolve the disagreement by deciding whether the person is
11-27    manifestly dangerous.  A person committed to a mental health
 12-1    facility as a result of the proceedings initiated pursuant to
 12-2    Section 6 or Section 7 of this article who presently has
 12-3    misdemeanor charges pending against him or has had misdemeanor
 12-4    charges against him dismissed pursuant to Section 7 of this article
 12-5    shall be committed to the mental health facility which is
 12-6    designated by the Commissioner of Mental Health and Mental
 12-7    Retardation to serve the catchment area in which the committing
 12-8    court is located.  A person committed to a mental retardation
 12-9    facility as a result of the proceedings initiated pursuant to
12-10    Section 6 or 7 of this article and who presently has misdemeanor
12-11    charges pending against or has had misdemeanor charges against him
12-12    dismissed pursuant to Section 7 of this article shall be committed
12-13    to the maximum security unit of any facility designated by the
12-14    Texas Department of Mental Health and Mental Retardation for a
12-15    maximum of 60 days pending placement in a nonsecurity facility.
12-16          (e)  On written notice by the head of a mental health or
12-17    mental retardation facility that in his opinion a person who has
12-18    been civilly committed to that facility and against whom criminal
12-19    charges are pending is competent to stand trial, or on good cause
12-20    shown by the defendant, his counsel, or the prosecuting attorney,
12-21    the court in which the criminal charges are pending may hold a
12-22    hearing to determine the competency of the defendant to stand
12-23    trial.  The hearing shall be before a jury unless waived by
12-24    agreement of the parties.  The order setting the hearing shall
12-25    order the defendant placed in the custody of the sheriff for
12-26    transportation to the court.  The court may appoint disinterested
12-27    experts to examine the defendant in accordance with the provisions
 13-1    of Section 3 of this article.  If the defendant is found to be
 13-2    competent to stand trial, the proceedings on the criminal charges
 13-3    may be continued.  If the defendant is found incompetent to stand
 13-4    trial and is under an order of commitment to a mental health or
 13-5    mental retardation facility, the court shall order him placed in
 13-6    the custody of the sheriff for transportation to that facility.  If
 13-7    the defendant is found incompetent to stand trial and has been
 13-8    discharged from a mental health or mental retardation facility, the
 13-9    court may civilly recommit the person under Subtitle C or D, Title
13-10    7, Health and Safety Code [pursuant to the provisions of the Texas
13-11    Mental Health Code, as amended (Article 5547-1 et seq., Vernon's
13-12    Texas Civil Statutes), or pursuant to the provisions of the
13-13    Mentally Retarded Persons Act of 1977, as amended (Article
13-14    5547-300, Vernon's Texas Civil Statutes)].  Such a recommitment
13-15    shall be made to the facility from which the defendant was
13-16    discharged if accomplished under Subtitle C, Title 7, Health and
13-17    Safety Code, [the Texas Mental Health Code] and to the Texas
13-18    Department of Mental Health and Mental Retardation if accomplished
13-19    under Subtitle D, Title 7, Health and Safety Code [the  Mentally
13-20    Retarded Persons Act of 1977].  The provisions of (d) above shall
13-21    again be followed prior to discharge of the committed person.
13-22          SECTION 6.  The importance of this legislation and the
13-23    crowded condition of the calendars in both houses create an
13-24    emergency and an imperative public necessity that the
13-25    constitutional rule requiring bills to be read on three several
13-26    days in each house be suspended, and this rule is hereby suspended,
13-27    and that this Act take effect and be in force from and after its
 14-1    passage, and it is so enacted.