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.