By: Shapiro S.B. No. 421
A BILL TO BE ENTITLED
AN ACT
1-1 relating to a determination of mental competency in the prosecution
1-2 of criminal cases and to the disposition of defendants found to be
1-3 incompetent before trial or after conviction.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Article 46.02, Code of Criminal Procedure, is
1-6 amended by redesignating Section 1 as Section 1A and adding a new
1-7 Section 1 to read as follows:
1-8 Sec. 1. DEFINITION. In this article, "residential care
1-9 facility" has the meaning assigned by Section 591.003, Health and
1-10 Safety Code.
1-11 Sec. 1A [1]. INCOMPETENCY TO STAND TRIAL. (a) A person is
1-12 incompetent to stand trial if the person [he] does not have:
1-13 (1) sufficient present ability to consult with the
1-14 person's [his] lawyer with a reasonable degree of rational
1-15 understanding; or
1-16 (2) a rational as well as factual understanding of the
1-17 proceedings against the person [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. Subsections (d) and (e), Section 3, Article
1-22 46.02, Code of 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
3-1 risk of physical impairment or injury to himself or others or is
3-2 unable to provide for and is not providing for his most basic
3-3 physical needs and requires commitment to a mental retardation
3-4 facility because he cannot be adequately and appropriately
3-5 habilitated in an available, less restrictive setting].
3-6 (e) If the examiner is a physician and concludes that the
3-7 defendant is a person with mental illness [mentally ill], the
3-8 examiner [he] shall complete and submit to the court a Certificate
3-9 of Medical Examination for Mental Illness. If the examiner is a
3-10 physician or a licensed psychologist and determines [concludes]
3-11 that the defendant is a person with mental retardation [mentally
3-12 retarded person] and if the determination [examination] has been
3-13 made in accordance with the standards established by Section
3-14 593.005, Health and Safety Code [conducted at a facility of the
3-15 Texas Department of Mental Health and Mental Retardation or at a
3-16 diagnostic center approved by the Texas Department of Mental Health
3-17 and Mental Retardation], the examiner shall submit to the court an
3-18 affidavit setting forth the conclusions reached as a result of the
3-19 [diagnostic] examination.
3-20 SECTION 3. Subsections (a), (h), and (i), Section 4, Article
3-21 46.02, Code of Criminal Procedure, are amended to read as follows:
3-22 (a) If the court determines that there is evidence to
3-23 support a finding of incompetency to stand trial, a jury shall be
3-24 impaneled to determine the defendant's competency to stand trial.
3-25 This determination shall be made by a jury that has not been
3-26 selected to determine the guilt or innocence of the defendant. If
4-1 the defendant is found incompetent to stand trial, a further
4-2 hearing may be held to determine whether or not the defendant:
4-3 (1) is a person with mental illness and meets the
4-4 criteria for court-ordered inpatient mental health services under
4-5 Subtitle C, Title 7, Health and Safety Code [mentally ill and is
4-6 likely to cause serious harm to himself or others or will, if not
4-7 treated, continue to suffer severe and abnormal mental, emotional,
4-8 or physical distress and will continue to experience deterioration
4-9 of his ability to function independently and is unable to make a
4-10 rational and informed decision as to whether or not to submit to
4-11 treatment, and therefore requires in-patient mental health
4-12 services]; or
4-13 (2) is a person with mental retardation and meets the
4-14 criteria for commitment to a residential care facility under
4-15 Subtitle D, Title 7, Health and Safety Code [mentally retarded
4-16 person as defined in the Mentally Retarded Persons Act of 1977
4-17 (Article 5547-300, Vernon's Texas Civil Statutes), and, because of
4-18 retardation, represents a substantial risk of physical impairment
4-19 or injury to himself or others, or is unable to provide for and is
4-20 not providing for his most basic physical needs and requires
4-21 commitment to a mental retardation facility because he cannot be
4-22 adequately and appropriately habilitated in an available, less
4-23 restrictive setting].
4-24 (h) If the defendant is found incompetent to stand trial and
4-25 there is found no substantial probability that the defendant [he]
4-26 will become competent within the foreseeable future, and the court
5-1 determines there is evidence that the defendant is a person with
5-2 mental illness or mental retardation [mentally ill or is a mentally
5-3 retarded person], and all charges pending against the defendant are
5-4 not then dismissed, the court shall proceed under Section 6 of this
5-5 article or shall release the defendant.
5-6 (i) If the defendant is found incompetent to stand trial and
5-7 there is found no substantial probability that the defendant [he]
5-8 will become competent within the foreseeable future, and the court
5-9 determines there is evidence that the defendant is a person with
5-10 mental illness or mental retardation [mentally ill or is a mentally
5-11 retarded person], and all charges pending against the defendant are
5-12 then dismissed, the court shall proceed under Section 7 of this
5-13 article or shall release the defendant.
5-14 SECTION 4. Subsections (a), (b), and (i), Section 5, Article
5-15 46.02, Code of Criminal Procedure, are amended to read as follows:
5-16 (a) When a defendant has been determined incompetent to
5-17 stand trial for any felony or for a misdemeanor because of mental
5-18 retardation, and absent a determination that there is no
5-19 substantial probability that the defendant will attain competency
5-20 to stand trial in the foreseeable future, the court shall enter an
5-21 order committing the defendant to the maximum security unit of any
5-22 facility designated by the Texas Department of Mental Health and
5-23 Mental Retardation, to an agency of the United States operating a
5-24 mental hospital, or to a Veterans Administration hospital for a
5-25 period not to exceed 18 months. When a defendant has been
5-26 determined incompetent to stand trial for a misdemeanor because of
6-1 mental illness, and absent a determination that there is no
6-2 substantial probability that the defendant will attain competency
6-3 to stand trial in the foreseeable future, the court shall enter an
6-4 order committing the defendant to the mental health facility
6-5 designated by the Commissioner of Mental Health and Mental
6-6 Retardation to serve the catchment area in which the committing
6-7 court is located for a period not to exceed 18 months. An order
6-8 issued under this subsection shall also place the defendant in the
6-9 custody of the sheriff for transportation to the facility to be
6-10 confined in the facility [therein] for further examination and
6-11 treatment toward the specific objective of attaining competency to
6-12 stand trial. The court shall order that a transcript of all
6-13 medical testimony received by the jury be forthwith prepared by the
6-14 court reporter and that the [such] transcript, together with a
6-15 statement of the facts and circumstances surrounding the alleged
6-16 offense, shall accompany the patient to the facility.
6-17 (b) No person shall be committed to a mental health or
6-18 residential care [mental retardation] facility under this section
6-19 except on competent medical or psychiatric testimony.
6-20 (i) When the head of a facility to which the defendant is
6-21 committed discharges the defendant and the defendant is returned to
6-22 court, a final report shall be filed with the court documenting the
6-23 applicable reason for the discharge [therefor] under Subsection (f)
6-24 of this section, and the court shall furnish copies to the defense
6-25 counsel and the prosecuting attorney. If the head of the [such]
6-26 facility is of the opinion that the defendant is a person with
7-1 mental illness and meets the criteria for court-ordered inpatient
7-2 mental health services under Subtitle C, Title 7, Health and Safety
7-3 Code, the head of the facility shall cause to have completed and
7-4 submitted [mentally ill and is likely to cause serious harm to
7-5 himself or others or will, if not treated, continue to suffer
7-6 severe and abnormal mental, emotional, or physical distress and
7-7 will continue to experience deterioration of his ability to
7-8 function independently and is unable to make a rational and
7-9 informed decision as to whether or not to submit to treatment and
7-10 therefore requires in-patient mental health services, he shall
7-11 complete and submit] to the court a Certificate of Medical
7-12 Examination for Mental Illness. If the head of the [such] facility
7-13 is of the opinion that the defendant is a person with mental
7-14 retardation, as defined by Section 591.003, Health and Safety Code,
7-15 the head of the facility shall cause to be submitted [mentally
7-16 retarded, he shall submit] to the court an affidavit setting forth
7-17 the conclusions reached as a result of the [diagnostic]
7-18 examination. When the report is filed with the court, the court is
7-19 authorized to make a determination based solely on the report with
7-20 regard to the defendant's competency to stand trial, unless the
7-21 prosecuting attorney or the defense counsel objects in writing or
7-22 in open court to the findings of the report within 15 days from the
7-23 time the report is served on the parties. In the event of
7-24 objection, the issue shall be set for a hearing before the court
7-25 or, on motion by the defendant, the defense [his] counsel, the
7-26 prosecuting attorney, or the court, the hearing shall be held
8-1 before a jury. The hearing shall be held within 30 days following
8-2 the date of objection unless continued for good cause.
8-3 SECTION 5. Section 6, Article 46.02, Code of Criminal
8-4 Procedure, is amended to read as follows:
8-5 Sec. 6. CIVIL COMMITMENT--CHARGES PENDING. (a) If a
8-6 defendant is found incompetent to stand trial and there is found no
8-7 substantial probability that the defendant [he] will become
8-8 competent in the foreseeable future, or if the defendant is found
8-9 incompetent to stand trial and the defendant [he] has been
8-10 previously committed to a facility under Subsection (a) of Section
8-11 5 of this article in connection with the same offense, and, in
8-12 either event, all charges pending against the defendant are not
8-13 then dismissed, the court shall determine whether there is evidence
8-14 to support findings that the defendant is a person with mental
8-15 illness or a person with mental retardation [mentally ill or is
8-16 mentally retarded] and requires commitment to a mental health or
8-17 residential care [mental retardation] facility.
8-18 (b) If it appears to the court that the defendant may be a
8-19 person with mental illness [mentally ill] and there is on file with
8-20 the court Certificates of Medical Examination for Mental Illness by
8-21 two physicians, at least one of whom must not be employed by the
8-22 Texas Department of Mental Health and Mental Retardation, who have
8-23 examined the defendant within 30 days of the date of the commitment
8-24 hearing, the court shall impanel a jury to determine whether the
8-25 defendant shall be committed to a mental health facility or the
8-26 [such] hearing may be held before the jury impaneled to determine
9-1 the defendant's competency to stand trial.
9-2 (1) If there has not been filed with the court the
9-3 required [two such] Certificates of Medical Examination for Mental
9-4 Illness, the judge shall appoint the necessary physicians, at least
9-5 one of whom shall be a psychiatrist, if one is available in the
9-6 county, to examine the defendant and file certificates with the
9-7 court. The judge may order the defendant to submit to the
9-8 examination.
9-9 (2) Proceedings [The Texas Mental Health Code (Article
9-10 5547-1 et seq., Vernon's Texas Civil Statutes) shall govern
9-11 proceedings] for commitment of the defendant to a mental health
9-12 facility are governed by Subtitle C, Title 7, Health and Safety
9-13 Code, to the extent that subtitle applies [insofar as the
9-14 provisions of that code are applicable] and does not [in] conflict
9-15 with this article [herewith], except that the criminal court shall
9-16 conduct the proceedings whether or not the criminal court is also
9-17 the county court.
9-18 (3) If the defendant has not been under observation or
9-19 [and/or] treatment in a mental hospital for at least 60 days under
9-20 [the provisions of] Section 5(a) of this article [above] or under
9-21 an Order of Temporary Commitment under Subtitle C, Title 7, Health
9-22 and Safety Code, [pursuant to the provisions of the Texas Mental
9-23 Health Code (Article 5547-1 et seq., Vernon's Texas Civil
9-24 Statutes)] within the 12 months immediately preceding the date of
9-25 the hearing, the instructions submitting the issue shall be framed
9-26 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) of this
10-14 subsection that the defendant is not a person with mental illness
10-15 [mentally ill] or does not meet the criteria for court-ordered
10-16 inpatient mental health services, the court shall order the
10-17 immediate release of the defendant.
10-18 If the jury finds under Subdivision (3) of this
10-19 subsection that the defendant is a person with mental illness
10-20 [mentally ill] and meets the criteria for court-ordered inpatient
10-21 mental health services, the court shall order that the defendant be
10-22 committed to a state mental hospital for inpatient [in-patient]
10-23 care for a period not 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
11-1 an Order of Temporary Commitment under Subtitle C, Title 7, Health
11-2 and Safety Code, [pursuant to the provisions of the Texas Mental
11-3 Health Code (Article 5547-1 et seq., Vernon's Texas Civil
11-4 Statutes)] within the 12 months immediately preceding the date of
11-5 the hearing, the instructions submitting the issue shall be framed
11-6 to require the jury to state in its verdict whether the defendant
11-7 is a person with mental illness and whether the defendant meets the
11-8 criteria for court-ordered inpatient mental health services under
11-9 Subtitle C, Title 7, Health and Safety Code [mentally ill, and if
11-10 so:]
11-11 [(i) is likely to cause serious harm to himself;]
11-12 [(ii) is likely to cause serious harm to others;
11-13 or]
11-14 [(iii) will, if not treated, continue to suffer
11-15 severe and abnormal mental, emotional, or physical distress and
11-16 will continue to experience deterioration of his ability to
11-17 function independently and is unable to make a rational and
11-18 informed decision as to whether or not to submit to treatment].
11-19 (6) If the jury finds under Subdivision (5) of this
11-20 subsection that the defendant is not a person with mental illness
11-21 [mentally ill] or that the defendant [he] does not meet the
11-22 criteria for court-ordered inpatient mental health services, the
11-23 court shall enter an order discharging the defendant.
11-24 If the jury finds under Subdivision (5) of this
11-25 subsection that the defendant is a person with mental illness
11-26 [mentally ill] and meets the criteria for court-ordered inpatient
12-1 mental health services, the court shall order that the defendant be
12-2 committed as a patient to a state mental hospital for inpatient
12-3 [in-patient] care for a period not to exceed 12 months.
12-4 (7) If the court enters an order committing the
12-5 defendant to a state mental hospital, the defendant shall be
12-6 treated and released in conformity with Subtitle C, Title 7, Health
12-7 and Safety Code, [to the Texas Mental Health Code] except as may be
12-8 provided in this article.
12-9 (c) If it appears to the court that the defendant may be a
12-10 person with mental retardation [mentally retarded] and there is on
12-11 file with the court a determination of mental retardation made in
12-12 accordance with the standards established by Section 593.005,
12-13 Health and Safety Code [an Affidavit of Examination of Alleged
12-14 Mentally Retarded Person based upon an examination conducted at a
12-15 facility of the Texas Department of Mental Health and Mental
12-16 Retardation or at a diagnostic center approved by that department],
12-17 the court shall impanel a jury to determine whether the defendant
12-18 is a [mentally retarded] person with mental retardation or the
12-19 [such] hearing may be held before the jury impaneled to determine
12-20 the defendant's competency to stand trial.
12-21 (1) If that determination [such affidavit] is not on
12-22 file with the court, the judge shall arrange for the [such
12-23 diagnostic] examination of the defendant by a facility of the Texas
12-24 Department of Mental Health and Mental Retardation or by a local
12-25 mental health and mental retardation authority [diagnostic center]
12-26 approved by that department. The judge may order the defendant to
13-1 submit to the examination. The county shall reimburse the facility
13-2 or authority that [center which] conducts the examination for the
13-3 reasonable and necessary expenses incurred in conducting the [such]
13-4 examination.
13-5 (2) Proceedings [The Mentally Retarded Persons Act of
13-6 1977 (Article 5547-300, Vernon's Texas Civil Statutes) shall govern
13-7 proceedings] for commitment of the defendant to a residential care
13-8 [mental retardation] facility are governed by Subtitle D, Title 7,
13-9 Health and Safety Code, to the extent that subtitle applies
13-10 [insofar as the provisions of that Act are applicable] and does not
13-11 [in] conflict with this article [herewith], except that the
13-12 criminal court shall conduct the proceedings whether or not the
13-13 criminal court is also a county court.
13-14 (3) The instructions submitting the issue of mental
13-15 retardation to the jury shall be framed to require the jury to
13-16 state in its verdict whether the defendant is a [mentally retarded]
13-17 person with mental retardation as defined by Section 591.003,
13-18 Health and Safety Code [in the Mentally Retarded Persons Act of
13-19 1977 (Article 5547-300, Vernon's Texas Civil Statutes)], and if so,
13-20 whether the defendant meets the criteria for commitment to a
13-21 residential care facility[:]
13-22 [(i) because of retardation, represents a
13-23 substantial risk of physical impairment or injury to himself or
13-24 others or is unable to provide for and is not providing for his
13-25 most basic physical needs;]
13-26 [(ii) cannot be adequately and appropriately
14-1 habilitated in an available, less restrictive setting; and]
14-2 [(iii) the mental retardation facility provides
14-3 habilitative services, care, training, and treatment appropriate
14-4 for his needs].
14-5 (4) If the jury finds that the defendant is not a
14-6 [mentally retarded] person with mental retardation as defined by
14-7 Section 591.003, Health and Safety Code [in the Mentally Retarded
14-8 Persons Act of 1977 (Article 5547-300, Vernon's Texas Civil
14-9 Statutes)], or that the defendant [he] does not meet the criteria
14-10 for commitment to a residential care [mental retardation] facility,
14-11 the court shall enter an order discharging the defendant.
14-12 (5) If the jury finds that the defendant is a
14-13 [mentally retarded] person with mental retardation as defined by
14-14 Section 591.003, Health and Safety Code [in the Mentally Retarded
14-15 Persons Act of 1977 (Article 5547-300, Vernon's Texas Civil
14-16 Statutes)], and meets the criteria for commitment to a residential
14-17 care [mental retardation] facility, the court shall enter an order
14-18 declaring that fact and that the person is committed to a
14-19 residential care [mental retardation] facility of the Texas
14-20 Department of Mental Health and Mental Retardation.
14-21 (6) If the court enters an order committing the
14-22 defendant to a residential care [mental retardation] facility of
14-23 the Texas Department of Mental Health and Mental Retardation, the
14-24 defendant shall be treated and released in accordance with Subtitle
14-25 D, Title 7, Health and Safety Code [the Mentally Retarded Persons
14-26 Act of 1977 (Article 5547-300, Vernon's Texas Civil Statutes)],
15-1 except as otherwise provided by this article.
15-2 (d) In the proceedings conducted under this section:
15-3 (1) an application [no Application] for court-ordered
15-4 temporary or extended mental health services or [Application] to
15-5 have the defendant declared a [mentally retarded] person with
15-6 mental retardation may not [shall] be required;
15-7 (2) the provisions of Subtitles C and D, Title 7,
15-8 Health and Safety Code, [the Texas Mental Health Code and the
15-9 Mentally Retarded Persons Act of 1977] relating to notice of
15-10 hearing do not apply [shall not be applicable]; and
15-11 (3) appeals from the criminal court proceedings under
15-12 this section shall be to the court of appeals as in the proceedings
15-13 for court-ordered inpatient mental health services under Subtitle
15-14 C, Title 7, Health and Safety Code, [the Texas Mental Health Code]
15-15 or for commitment to a residential care [mental retardation]
15-16 facility under Subtitle D, Title 7, Health and Safety Code [the
15-17 Mentally Retarded Persons Act of 1977].
15-18 SECTION 6. Section 7, Article 46.02, Code of Criminal
15-19 Procedure, is amended to read as follows:
15-20 Sec. 7. CIVIL COMMITMENT--CHARGES DISMISSED. If a defendant
15-21 is found incompetent to stand trial and there is found no
15-22 substantial probability that the defendant [he] will become
15-23 competent in the foreseeable future, or if the defendant is found
15-24 incompetent to stand trial and the defendant [he] has been
15-25 previously committed to a facility under Section 5 of this article
15-26 and all charges pending against the defendant are then dismissed,
16-1 the court shall determine whether there is evidence to support a
16-2 finding [findings] that the defendant is either a person with
16-3 mental illness [mentally ill] or [is] a [mentally retarded] person
16-4 with mental retardation. If it appears to the court that there is
16-5 evidence to support either finding [of such findings], the court
16-6 shall enter an order transferring the defendant to the appropriate
16-7 court for civil commitment proceedings, stating that all charges
16-8 pending against the defendant in that court have been dismissed,
16-9 and may order the defendant detained in jail or other suitable
16-10 place pending the prompt initiation and prosecution by the attorney
16-11 for the state or other person designated by the court of
16-12 appropriate civil proceedings to determine whether the defendant
16-13 will be committed to a mental health or residential care [mental
16-14 retardation] facility; provided, however, that a patient placed in
16-15 a facility of the Texas Department of Mental Health and Mental
16-16 Retardation pending civil hearing under this section may be
16-17 detained in that [such] facility only pursuant to an Order of
16-18 Protective Custody issued under Subtitle C, Title 7, Health and
16-19 Safety Code, [pursuant to the provisions of the Texas Mental Health
16-20 Code] and with the consent of the head of the facility, or the
16-21 court may give the defendant into the care of a responsible person
16-22 on satisfactory security being given for the defendant's [his]
16-23 proper care and protection; otherwise, the defendant shall be
16-24 discharged.
16-25 SECTION 7. Section 8, Article 46.02, Code of Criminal
16-26 Procedure, is amended to read as follows:
17-1 Sec. 8. GENERAL. (a) A person committed to a mental health
17-2 or residential care [mental retardation] facility as a result of
17-3 the proceedings initiated pursuant to Section 6 or Section 7 of
17-4 this article and who presently has felony charges pending against
17-5 the person [him] or has had felony charges against the person [him]
17-6 dismissed pursuant to Section 7 of this article shall be committed
17-7 to the maximum security unit of any facility designated by the
17-8 Texas Department of Mental Health and Mental Retardation. Within
17-9 60 days following arrival at the maximum security unit, the person
17-10 shall be transferred to a nonsecurity unit or to a community
17-11 program of a mental health or residential care [mental retardation]
17-12 facility or a community mental health and mental retardation center
17-13 designated by the Texas Department of Mental Health and Mental
17-14 Retardation unless the person is determined to be manifestly
17-15 dangerous by a review board with the Texas Department of Mental
17-16 Health and Mental Retardation. The Commissioner of Mental Health
17-17 and Mental Retardation shall appoint a review board of five
17-18 members, including one psychiatrist licensed to practice medicine
17-19 in the State of Texas and two persons who work directly with
17-20 persons with mental illness or mental retardation [mental health
17-21 patients or mentally retarded clients], to determine whether the
17-22 person is manifestly dangerous and, as a result of the danger the
17-23 person [which he] presents, requires continued placement in a
17-24 maximum security unit. The review board shall make no
17-25 determination as to the person's need for treatment. A finding
17-26 that the person is not manifestly dangerous is not a medical
18-1 determination that the person no longer meets the criteria for
18-2 involuntary civil commitment under Subtitle C or D, Title 7, Health
18-3 and Safety Code [the Texas Mental Health Code (Article 5547-1 et
18-4 seq., Vernon's Texas Civil Statutes) or the Mentally Retarded
18-5 Persons Act of 1977 (Article 5547-300, Vernon's Texas Civil
18-6 Statutes)]. If the superintendent of the facility at which the
18-7 maximum security unit is located disagrees with the determination,
18-8 then the matter will be referred to the Commissioner of Mental
18-9 Health and Mental Retardation who will resolve the disagreement by
18-10 deciding whether the person is manifestly dangerous. A person
18-11 committed to a mental health facility as a result of the
18-12 proceedings initiated pursuant to Section 6 or Section 7 of this
18-13 article who presently has misdemeanor charges pending against the
18-14 person [him] or has had misdemeanor charges against the person
18-15 [him] dismissed pursuant to Section 7 of this article shall be
18-16 committed to the mental health facility which is designated by the
18-17 Commissioner of Mental Health and Mental Retardation to serve the
18-18 catchment area in which the committing court is located. A person
18-19 committed to a residential care [mental retardation] facility as a
18-20 result of the proceedings initiated pursuant to Section 6 or 7 of
18-21 this article and who presently has misdemeanor charges pending
18-22 against or has had misdemeanor charges against the person [him]
18-23 dismissed pursuant to Section 7 of this article shall be committed
18-24 to the maximum security unit of any facility designated by the
18-25 Texas Department of Mental Health and Mental Retardation for a
18-26 maximum of 60 days pending placement in a nonsecurity facility.
19-1 (b) The court shall order that a transcript of all medical
19-2 testimony received in both the criminal proceedings and the civil
19-3 commitment proceedings be prepared forthwith by the court reporters
19-4 and that the [such] transcripts, together with a statement of the
19-5 facts and circumstances surrounding the alleged offense, shall
19-6 accompany the patient to the mental health or residential care
19-7 [mental retardation] facility.
19-8 (c) If the head of a mental health facility determines that
19-9 a patient committed to a state mental hospital for a period not
19-10 exceeding 90 days as a result of proceedings initiated pursuant to
19-11 Section 6 or Section 7 of this article requires extended
19-12 court-ordered inpatient mental health services, the head of the
19-13 facility [he] shall notify the court from which the patient was
19-14 committed in writing at least 30 days prior to the expiration of
19-15 the temporary commitment. The court from which the patient was
19-16 committed shall order the sheriff of the county in which the court
19-17 is located to return the patient for a hearing on court-ordered
19-18 inpatient mental health services or shall make arrangements for the
19-19 hearing to be held in an appropriate court of the county in which
19-20 the patient is hospitalized. Provided, however, that if the
19-21 patient has not received a hearing on court-ordered inpatient
19-22 mental health services by the date on which the temporary
19-23 commitment expires, the head of the facility in which the patient
19-24 is hospitalized shall cause the patient to be immediately
19-25 transported to the committing court and placed in the custody of
19-26 the sheriff of the county in which the court is located. That
20-1 county shall reimburse the facility of the Texas Department of
20-2 Mental Health and Mental Retardation for the mileage and per diem
20-3 expenses of the personnel required to transport the defendant
20-4 calculated in accordance with the state travel regulations in
20-5 effect at the time.
20-6 (d) The head of a mental health or residential care [mental
20-7 retardation] facility to which a person has been committed or
20-8 transferred as a result of the proceedings initiated pursuant to
20-9 Section 6 of this article and who has received written notice from
20-10 a court or prosecuting attorney that criminal charges are pending
20-11 against the person shall notify the court in writing at least 14
20-12 days prior to the discharge of the person unless the notice
20-13 provided for in Subsection (c) of this section [above] has been
20-14 given. A written report as to the competency of the person to
20-15 stand trial shall accompany the notice of discharge.
20-16 (e) On written notice by the head of a mental health or
20-17 residential care [mental retardation] facility that in the [his]
20-18 opinion of the head of the facility, a person who has been civilly
20-19 committed to that facility and against whom criminal charges are
20-20 pending is competent to stand trial, or on good cause shown by the
20-21 defendant, the defense [his] counsel, or the prosecuting attorney,
20-22 the court in which the criminal charges are pending may hold a
20-23 hearing to determine the competency of the defendant to stand
20-24 trial. The hearing shall be before a jury unless waived by
20-25 agreement of the parties. The order setting the hearing shall
20-26 order the defendant placed in the custody of the sheriff for
21-1 transportation to the court. The court may appoint disinterested
21-2 experts to examine the defendant in accordance with the provisions
21-3 of Section 3 of this article. If the defendant is found to be
21-4 competent to stand trial, the proceedings on the criminal charges
21-5 may be continued. If the defendant is found incompetent to stand
21-6 trial and is under an order of commitment to a mental health or
21-7 residential care [mental retardation] facility, the court shall
21-8 order the defendant [him] placed in the custody of the sheriff for
21-9 transportation to that facility. If the defendant is found
21-10 incompetent to stand trial and has been discharged from a mental
21-11 health or residential care [mental retardation] facility, the court
21-12 may civilly recommit the person under Subtitle C or D, Title 7,
21-13 Health and Safety Code [pursuant to the provisions of the Texas
21-14 Mental Health Code, as amended (Article 5547-1 et seq., Vernon's
21-15 Texas Civil Statutes), or pursuant to the provisions of the
21-16 Mentally Retarded Persons Act of 1977, as amended (Article
21-17 5547-300, Vernon's Texas Civil Statutes)]. The [Such a]
21-18 recommitment shall be made to the facility from which the defendant
21-19 was discharged if accomplished under Subtitle C, Title 7, Health
21-20 and Safety Code, [the Texas Mental Health Code] and to the Texas
21-21 Department of Mental Health and Mental Retardation if accomplished
21-22 under Subtitle D, Title 7, Health and Safety Code [the Mentally
21-23 Retarded Persons Act of 1977]. Subsection (d) of this section [The
21-24 provisions of (d) above] shall again be followed prior to discharge
21-25 of the committed person.
21-26 SECTION 8. Article 46.01, Code of Criminal Procedure, is
22-1 repealed.
22-2 SECTION 9. The change in law made by Sections 1 through 7 of
22-3 this Act applies only to a competency hearing initiated on or after
22-4 the effective date of this Act. A competency hearing initiated
22-5 before the effective date of this Act is covered by the law in
22-6 effect when the hearing was initiated, and the former law is
22-7 continued in effect for that purpose.
22-8 SECTION 10. This Act takes effect September 1, 1999.
22-9 SECTION 11. The importance of this legislation and the
22-10 crowded condition of the calendars in both houses create an
22-11 emergency and an imperative public necessity that the
22-12 constitutional rule requiring bills to be read on three several
22-13 days in each house be suspended, and this rule is hereby suspended.