1-1     By:  Shapiro                                           S.B. No. 421
 1-2           (In the Senate - Filed February 5, 1999; February 8, 1999,
 1-3     read first time and referred to Committee on Criminal Justice;
 1-4     March 29, 1999, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 6, Nays 0; March 29, 1999,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 421                  By:  Shapiro
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to a determination of mental competency in the prosecution
1-11     of criminal cases and to the disposition of defendants found to be
1-12     incompetent before trial or after conviction.
1-13           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14           SECTION 1.  Article 46.02, Code of Criminal Procedure, is
1-15     amended by redesignating Section 1 as Section 1A and adding a new
1-16     Section 1 to read as follows:
1-17           Sec. 1.  DEFINITION.  In this article, "residential care
1-18     facility" has the meaning assigned by Section 591.003, Health and
1-19     Safety Code.
1-20           Sec. 1A [1].  INCOMPETENCY TO STAND TRIAL.  (a)  A person is
1-21     incompetent to stand trial if the person [he] does not have:
1-22                 (1)  sufficient present ability to consult with the
1-23     person's [his] lawyer with a reasonable degree of rational
1-24     understanding; or
1-25                 (2)  a rational as well as factual understanding of the
1-26     proceedings against the person [him].
1-27           (b)  A defendant is presumed competent to stand trial and
1-28     shall be found competent to stand trial unless proved incompetent
1-29     by a preponderance of the evidence.
1-30           SECTION 2.  Subsections (d) and (e), Section 3, Article
1-31     46.02, Code of Criminal Procedure, are amended to read as follows:
1-32           (d)  A written report of the examination shall be submitted
1-33     to the court within 30 days of the order of examination, and the
1-34     court shall furnish copies of the report to the defense counsel and
1-35     the prosecuting attorney.  The report shall include a description
1-36     of the procedures used in the examination, the examiner's
1-37     observations and findings pertaining to the defendant's competency
1-38     to stand trial, and the recommended treatment.  If the examiner
1-39     concludes that the defendant is incompetent to stand trial, the
1-40     report shall include the examiner's observations and findings about
1-41     whether there is a substantial probability that the defendant will
1-42     attain the competence to stand trial in the foreseeable future.
1-43     The examiner shall also submit a separate report setting forth the
1-44     examiner's [his] observations and findings concerning:
1-45                 (1)  whether the defendant is a person with mental
1-46     illness and meets the criteria for court-ordered inpatient mental
1-47     health services under Subtitle C, Title 7, Health and Safety Code
1-48     [mentally ill and is likely to cause serious harm to himself or
1-49     others or will, if not treated, continue to suffer severe and
1-50     abnormal mental, emotional, or physical distress and will continue
1-51     to experience deterioration of his ability to function
1-52     independently and is unable to make a rational and informed
1-53     decision as to whether or not to submit to treatment]; or
1-54                 (2)  whether the defendant is a person with mental
1-55     retardation and meets the criteria for commitment to a residential
1-56     care facility under Subtitle D, Title 7, Health and Safety Code
1-57     [mentally retarded person as defined in the Mentally Retarded
1-58     Persons Act of 1977 (Article 5547-300, Vernon's Texas Civil
1-59     Statutes) and, because of retardation, represents a substantial
1-60     risk of physical impairment or injury to himself or others or is
1-61     unable to provide for and is not providing for his most basic
1-62     physical needs and requires commitment to a mental retardation
1-63     facility because he cannot be adequately and appropriately
1-64     habilitated in an available, less restrictive setting].
 2-1           (e)  If the examiner is a physician and concludes that the
 2-2     defendant is a person with mental illness [mentally ill], the
 2-3     examiner [he] shall complete and submit to the court a Certificate
 2-4     of Medical Examination for Mental Illness.  If the examiner is a
 2-5     physician or a licensed psychologist and determines [concludes]
 2-6     that the defendant is a person with mental retardation [mentally
 2-7     retarded person] and if the determination [examination] has been
 2-8     made in accordance with the standards established by Section
 2-9     593.005, Health and Safety Code [conducted at a facility of the
2-10     Texas Department of Mental Health and Mental Retardation or at a
2-11     diagnostic center approved by the Texas Department of Mental Health
2-12     and Mental Retardation], the examiner shall submit to the court an
2-13     affidavit setting forth the conclusions reached as a result of the
2-14     [diagnostic] examination.
2-15           SECTION 3.  Subsections (a), (h), and (i), Section 4, Article
2-16     46.02, Code of Criminal Procedure, are amended to read as follows:
2-17           (a)  If the court determines that there is evidence to
2-18     support a finding of incompetency to stand trial, a jury shall be
2-19     impaneled to determine the defendant's competency to stand trial.
2-20     This determination shall be made by a jury that has not been
2-21     selected to determine the guilt or innocence of the defendant.  If
2-22     the defendant is found incompetent to stand trial, a further
2-23     hearing may be held to determine whether or not the defendant:
2-24                 (1)  is a person with mental illness and meets the
2-25     criteria for court-ordered inpatient mental health services under
2-26     Subtitle C, Title 7, Health and Safety Code [mentally ill and is
2-27     likely to cause serious harm to himself or others or will, if not
2-28     treated, continue to suffer severe and abnormal mental, emotional,
2-29     or physical distress and will continue to experience deterioration
2-30     of his ability to function independently and is unable to make a
2-31     rational and informed decision as to whether or not to submit to
2-32     treatment, and therefore requires in-patient mental health
2-33     services]; or
2-34                 (2)  is a person with mental retardation and meets the
2-35     criteria for commitment to a residential care facility under
2-36     Subtitle D, Title 7, Health and Safety Code [mentally retarded
2-37     person as defined in the Mentally Retarded Persons Act of 1977
2-38     (Article 5547-300, Vernon's Texas Civil Statutes), and, because of
2-39     retardation, represents a substantial risk of physical impairment
2-40     or injury to himself or others, or is unable to provide for and is
2-41     not providing for his most basic physical needs and requires
2-42     commitment to a mental retardation facility because he cannot be
2-43     adequately and appropriately habilitated in an available, less
2-44     restrictive setting].
2-45           (h)  If the defendant is found incompetent to stand trial and
2-46     there is found no substantial probability that the defendant [he]
2-47     will become competent within the foreseeable future, and the court
2-48     determines there is evidence that the defendant is a person with
2-49     mental illness or mental retardation [mentally ill or is a mentally
2-50     retarded person], and all charges pending against the defendant are
2-51     not then dismissed, the court shall proceed under Section 6 of this
2-52     article or shall release the defendant.
2-53           (i)  If the defendant is found incompetent to stand trial and
2-54     there is found no substantial probability that the defendant [he]
2-55     will become competent within the foreseeable future, and the court
2-56     determines there is evidence that the defendant is a person with
2-57     mental illness or mental retardation [mentally ill or is a mentally
2-58     retarded person], and all charges pending against the defendant are
2-59     then dismissed, the court shall proceed under Section 7 of this
2-60     article or shall release the defendant.
2-61           SECTION 4.  Subsections (a), (b), and(i), Section 5, Article
2-62     46.02, Code of Criminal Procedure, are amended to read as follows:
2-63           (a)  When a defendant has been determined incompetent to
2-64     stand trial for any felony or for a misdemeanor because of mental
2-65     retardation, and absent a determination that there is no
2-66     substantial probability that the defendant will attain competency
2-67     to stand trial in the foreseeable future, the court shall enter an
2-68     order committing the defendant to the maximum security unit of any
2-69     facility designated by the Texas Department of Mental Health and
 3-1     Mental Retardation, to an agency of the United States operating a
 3-2     mental hospital, or to a Veterans Administration hospital for a
 3-3     period not to exceed 18 months.  When a defendant has been
 3-4     determined incompetent to stand trial for a misdemeanor because of
 3-5     mental illness, and absent a determination that there is no
 3-6     substantial probability that the defendant will attain competency
 3-7     to stand trial in the foreseeable future, the court shall enter an
 3-8     order committing the defendant to the mental health facility
 3-9     designated by the Commissioner of Mental Health and Mental
3-10     Retardation to serve the catchment area in which the committing
3-11     court is located for a period not to exceed 18 months.  An order
3-12     issued under this subsection shall also place the defendant in the
3-13     custody of the sheriff for transportation to the facility to be
3-14     confined in the facility [therein] for further examination and
3-15     treatment toward the specific objective of attaining competency to
3-16     stand trial.  The court shall order that a transcript of all
3-17     medical testimony received by the jury be forthwith prepared by the
3-18     court reporter and that the [such] transcript, together with a
3-19     statement of the facts and circumstances surrounding the alleged
3-20     offense, shall accompany the patient to the facility.
3-21           (b)  No person shall be committed to a mental health or
3-22     residential care [mental retardation] facility under this section
3-23     except on competent medical or psychiatric testimony.
3-24           (i)  When the head of a facility to which the defendant is
3-25     committed discharges the defendant and the defendant is returned to
3-26     court, a final report shall be filed with the court documenting the
3-27     applicable reason for the discharge [therefor] under Subsection (f)
3-28     of this section, and the court shall furnish copies to the defense
3-29     counsel and the prosecuting attorney.  If the head of the [such]
3-30     facility is of the opinion that the defendant is a person with
3-31     mental illness and meets the criteria for court-ordered inpatient
3-32     mental health services under Subtitle C, Title 7, Health and Safety
3-33     Code, the head of the facility shall cause to have completed and
3-34     submitted [mentally ill and is likely to cause serious harm to
3-35     himself or others or will, if not treated, continue to suffer
3-36     severe and abnormal mental, emotional, or physical distress and
3-37     will continue to experience deterioration of his ability to
3-38     function independently and is unable to make a rational and
3-39     informed decision as to whether or not to submit to treatment and
3-40     therefore requires in-patient mental health services, he shall
3-41     complete and submit] to the court a Certificate of Medical
3-42     Examination for Mental Illness.  If the head of the [such] facility
3-43     is of the opinion that the defendant is a person with mental
3-44     retardation, as defined by Section 591.003, Health and Safety Code,
3-45     the head of the facility shall cause to be submitted [mentally
3-46     retarded, he shall submit] to the court an affidavit setting forth
3-47     the conclusions reached as a result of the [diagnostic]
3-48     examination.  When the report is filed with the court, the court is
3-49     authorized to make a determination based solely on the report with
3-50     regard to the defendant's competency to stand trial, unless the
3-51     prosecuting attorney or the defense counsel objects in writing or
3-52     in open court to the findings of the report within 15 days from the
3-53     time the report is served on the parties.  In the event of
3-54     objection, the issue shall be set for a hearing before the court
3-55     or, on motion by the defendant, the defense [his] counsel, the
3-56     prosecuting attorney, or the court, the hearing shall be held
3-57     before a jury.  The hearing shall be held within 30 days following
3-58     the date of objection unless continued for good cause.
3-59           SECTION 5.  Section 6, Article 46.02, Code of Criminal
3-60     Procedure, is amended to read as follows:
3-61           Sec. 6.  CIVIL COMMITMENT--CHARGES PENDING.  (a)  If a
3-62     defendant is found incompetent to stand trial and there is found no
3-63     substantial probability that the defendant [he] will become
3-64     competent in the foreseeable future, or if the defendant is found
3-65     incompetent to stand trial and the defendant [he] has been
3-66     previously committed to a facility under Subsection (a) of Section
3-67     5 of this article in connection with the same offense, and, in
3-68     either event, all charges pending against the defendant are not
3-69     then dismissed, the court shall determine whether there is evidence
 4-1     to support findings that the defendant is a person with mental
 4-2     illness or a person with mental retardation [mentally ill or is
 4-3     mentally retarded] and requires commitment to a mental health or
 4-4     residential care [mental retardation] facility.
 4-5           (b)  If it appears to the court that the defendant may be a
 4-6     person with mental illness [mentally ill] and there is on file with
 4-7     the court Certificates of Medical Examination for Mental Illness by
 4-8     two physicians, at least one of whom must not be employed by the
 4-9     Texas Department of Mental Health and Mental Retardation, who have
4-10     examined the defendant within 30 days of the date of the commitment
4-11     hearing, the court shall impanel a jury to determine whether the
4-12     defendant shall be committed to a mental health facility or the
4-13     [such] hearing may be held before the jury impaneled to determine
4-14     the defendant's competency to stand trial.
4-15                 (1)  If there has not been filed with the court the
4-16     required [two such] Certificates of Medical Examination for Mental
4-17     Illness, the judge shall appoint the necessary physicians, at least
4-18     one of whom shall be a psychiatrist, if one is available in the
4-19     county, to examine the defendant and file certificates with the
4-20     court.  The judge may order the defendant to submit to the
4-21     examination.
4-22                 (2)  Proceedings [The Texas Mental Health Code (Article
4-23     5547-1 et seq., Vernon's Texas Civil Statutes) shall govern
4-24     proceedings] for commitment of the defendant to a mental health
4-25     facility are governed by Subtitle C, Title 7, Health and Safety
4-26     Code, to the extent that subtitle applies [insofar as the
4-27     provisions of that code are applicable] and does not [in] conflict
4-28     with this article [herewith], except that the criminal court shall
4-29     conduct the proceedings whether or not the criminal court is also
4-30     the county court.
4-31                 (3)  If the defendant has not been under observation or
4-32     [and/or] treatment in a mental hospital for at least 60 days under
4-33     [the provisions of] Section 5(a) of this article [above] or under
4-34     an Order of Temporary Commitment under Subtitle C, Title 7, Health
4-35     and Safety Code, [pursuant to the provisions of the Texas Mental
4-36     Health Code (Article 5547-1 et seq., Vernon's Texas Civil
4-37     Statutes)] within the 12 months immediately preceding the date of
4-38     the hearing, the instructions submitting the issue shall be framed
4-39     to require the jury to state in its verdict whether the defendant
4-40     is a person with mental illness and whether the defendant meets the
4-41     criteria for court-ordered inpatient mental health services under
4-42     Subtitle C, Title 7, Health and Safety Code [mentally ill, and if
4-43     so:]
4-44                       [(i)  is likely to cause serious harm to himself;]
4-45                       [(ii)  is likely to cause serious harm to others;
4-46     or]
4-47                       [(iii)  will, if not treated, continue to suffer
4-48     severe and abnormal mental, emotional, or physical distress and
4-49     will continue to experience deterioration of his ability to
4-50     function independently and is unable to make a rational and
4-51     informed decision as to whether or not to submit to treatment].
4-52                 (4)  If the jury finds under Subdivision (3) of this
4-53     subsection that the defendant is not a person with mental illness
4-54     [mentally ill] or does not meet the criteria for court-ordered
4-55     inpatient mental health services, the court shall order the
4-56     immediate release of the defendant.
4-57                 If the jury finds under Subdivision (3) of this
4-58     subsection that the defendant is a person with mental illness
4-59     [mentally ill] and meets the criteria for court-ordered inpatient
4-60     mental health services, the court shall order that the defendant be
4-61     committed to a state mental hospital for inpatient [in-patient]
4-62     care for a period not exceeding 90 days.
4-63                 (5)  If the defendant has been under observation or
4-64     [and/or] treatment in a mental hospital for at least 60 days under
4-65     [the provisions of] Section 5(a) of this article [above] or under
4-66     an Order of Temporary Commitment under Subtitle C, Title 7, Health
4-67     and Safety Code, [pursuant to the provisions of the Texas Mental
4-68     Health Code (Article 5547-1 et seq., Vernon's Texas Civil
4-69     Statutes)] within the 12 months immediately preceding the date of
 5-1     the hearing, the instructions submitting the issue shall be framed
 5-2     to require the jury to state in its verdict whether the defendant
 5-3     is a person with mental illness and whether the defendant meets the
 5-4     criteria for court-ordered inpatient mental health services under
 5-5     Subtitle C, Title 7, Health and Safety Code [mentally ill, and if
 5-6     so:]
 5-7                       [(i)  is likely to cause serious harm to himself;]
 5-8                       [(ii)  is likely to cause serious harm to others;
 5-9     or]
5-10                       [(iii)  will, if not treated, continue to suffer
5-11     severe and abnormal mental, emotional, or physical distress and
5-12     will continue to experience deterioration of his ability to
5-13     function independently and is unable to make a rational and
5-14     informed decision as to whether or not to submit to treatment].
5-15                 (6)  If the jury finds under Subdivision (5) of this
5-16     subsection that the defendant is not a person with mental illness
5-17     [mentally ill] or that the defendant [he] does not meet the
5-18     criteria for court-ordered inpatient mental health services, the
5-19     court shall enter an order discharging the defendant.
5-20                 If the jury finds under Subdivision (5) of this
5-21     subsection that the defendant is a person with mental illness
5-22     [mentally ill] and meets the criteria for court-ordered inpatient
5-23     mental health services, the court shall order that the defendant be
5-24     committed as a patient to a state mental hospital for inpatient
5-25     [in-patient] care for a period not to exceed 12 months.
5-26                 (7)  If the court enters an order committing the
5-27     defendant to a state mental hospital, the defendant shall be
5-28     treated and released in conformity with Subtitle C, Title 7, Health
5-29     and Safety Code, [to the Texas Mental Health Code] except as may be
5-30     provided in this article.
5-31           (c)  If it appears to the court that the defendant may be a
5-32     person with mental retardation [mentally retarded] and there is on
5-33     file with the court a determination of mental retardation made in
5-34     accordance with the standards established by Section 593.005,
5-35     Health and Safety Code [an Affidavit of Examination of Alleged
5-36     Mentally Retarded Person based upon an examination conducted at a
5-37     facility of the Texas Department of Mental Health and Mental
5-38     Retardation or at a diagnostic center approved by that department],
5-39     the court shall impanel a jury to determine whether the defendant
5-40     is a [mentally retarded] person with mental retardation or the
5-41     [such] hearing may be held before the jury impaneled to determine
5-42     the defendant's competency to stand trial.
5-43                 (1)  If that determination [such affidavit] is not on
5-44     file with the court, the judge shall arrange for the [such
5-45     diagnostic] examination of the defendant by a facility of the Texas
5-46     Department of Mental Health and Mental Retardation or by a local
5-47     mental health and mental retardation authority [diagnostic center]
5-48     approved by that department.  The judge may order the defendant to
5-49     submit to the examination.  The county shall reimburse the facility
5-50     or authority that [center which] conducts the examination for the
5-51     reasonable and necessary expenses incurred in conducting the [such]
5-52     examination.
5-53                 (2)  Proceedings [The Mentally Retarded Persons Act of
5-54     1977 (Article 5547-300, Vernon's Texas Civil Statutes) shall govern
5-55     proceedings] for commitment of the defendant to a residential care
5-56     [mental retardation] facility are governed by Subtitle D, Title 7,
5-57     Health and Safety Code, to the extent that subtitle applies
5-58     [insofar as the provisions of that Act are applicable] and does not
5-59     [in] conflict with this article [herewith], except that the
5-60     criminal court shall conduct the proceedings whether or not the
5-61     criminal court is also a county court.
5-62                 (3)  The instructions submitting the issue of mental
5-63     retardation to the jury shall be framed to require the jury to
5-64     state in its verdict whether the defendant is a [mentally retarded]
5-65     person with mental retardation as defined by Section 591.003,
5-66     Health and Safety Code [in the Mentally Retarded Persons Act of
5-67     1977 (Article 5547-300, Vernon's Texas Civil Statutes)], and if so,
5-68     whether the defendant meets the criteria for commitment to a
5-69     residential care facility[:]
 6-1                       [(i)  because of retardation, represents a
 6-2     substantial risk of physical impairment or injury to himself or
 6-3     others or is unable to provide for and is not providing for his
 6-4     most basic physical needs;]
 6-5                       [(ii)  cannot be adequately and appropriately
 6-6     habilitated in an available, less restrictive setting; and]
 6-7                       [(iii)  the mental retardation facility provides
 6-8     habilitative services, care, training, and treatment appropriate
 6-9     for his needs].
6-10                 (4)  If the jury finds that the defendant is not a
6-11     [mentally retarded] person with mental retardation as defined by
6-12     Section 591.003, Health and Safety Code [in the Mentally Retarded
6-13     Persons Act of 1977 (Article 5547-300, Vernon's Texas Civil
6-14     Statutes)], or that the defendant [he] does not meet the criteria
6-15     for commitment to a residential care [mental retardation] facility,
6-16     the court shall enter an order discharging the defendant.
6-17                 (5)  If the jury finds that the defendant is a
6-18     [mentally retarded] person with mental retardation as defined by
6-19     Section 591.003, Health and Safety Code [in the Mentally Retarded
6-20     Persons Act of 1977 (Article 5547-300, Vernon's Texas Civil
6-21     Statutes)], and meets the criteria for commitment to a residential
6-22     care [mental retardation] facility, the court shall enter an order
6-23     declaring that fact and that the person is committed to a
6-24     residential care [mental retardation] facility of the Texas
6-25     Department of Mental Health and Mental Retardation.
6-26                 (6)  If the court enters an order committing the
6-27     defendant to a residential care [mental retardation] facility of
6-28     the Texas Department of Mental Health and Mental Retardation, the
6-29     defendant shall be treated and released in accordance with Subtitle
6-30     D, Title 7, Health and Safety Code [the Mentally Retarded Persons
6-31     Act of 1977 (Article 5547-300, Vernon's Texas Civil Statutes)],
6-32     except as otherwise provided by this article.
6-33           (d)  In the proceedings conducted under this section:
6-34                 (1)  an application [no Application] for court-ordered
6-35     temporary or extended mental health services or [Application] to
6-36     have the defendant declared a [mentally retarded] person with
6-37     mental retardation may not [shall] be required;
6-38                 (2)  the provisions of Subtitles C and D, Title 7,
6-39     Health and Safety Code, [the Texas Mental Health Code and the
6-40     Mentally Retarded Persons Act of 1977] relating to notice of
6-41     hearing do not apply [shall not be applicable]; and
6-42                 (3)  appeals from the criminal court proceedings under
6-43     this section shall be to the court of appeals as in the proceedings
6-44     for court-ordered inpatient mental health services under Subtitle
6-45     C, Title 7, Health and Safety Code, [the Texas Mental Health Code]
6-46     or for commitment to a residential care [mental retardation]
6-47     facility under Subtitle D, Title 7, Health and Safety Code [the
6-48     Mentally Retarded Persons Act of 1977].
6-49           SECTION 6.  Section 7, Article 46.02, Code of Criminal
6-50     Procedure, is amended to read as follows:
6-51           Sec. 7.  CIVIL COMMITMENT--CHARGES DISMISSED.  If a defendant
6-52     is found incompetent to stand trial and there is found no
6-53     substantial probability that the defendant [he] will become
6-54     competent in the foreseeable future, or if the defendant is found
6-55     incompetent to stand trial and the defendant [he] has been
6-56     previously committed to a facility under Section 5 of this article
6-57     and all charges pending against the defendant are then dismissed,
6-58     the court shall determine whether there is evidence to support a
6-59     finding [findings] that the defendant is either a person with
6-60     mental illness [mentally ill] or [is] a [mentally retarded] person
6-61     with mental retardation.  If it appears to the court that there is
6-62     evidence to support either finding [of such findings], the court
6-63     shall enter an order transferring the defendant to the appropriate
6-64     court for civil commitment proceedings, stating that all charges
6-65     pending against the defendant in that court have been dismissed,
6-66     and may order the defendant detained in jail or other suitable
6-67     place pending the prompt initiation and prosecution by the attorney
6-68     for the state or other person designated by the court of
6-69     appropriate civil proceedings to determine whether the defendant
 7-1     will be committed to a mental health or residential care [mental
 7-2     retardation] facility; provided, however, that a patient placed in
 7-3     a facility of the Texas Department of Mental Health and Mental
 7-4     Retardation pending civil hearing under this section may be
 7-5     detained in that [such] facility only pursuant to an Order of
 7-6     Protective Custody issued under Subtitle C, Title 7, Health and
 7-7     Safety Code, [pursuant to the provisions of the Texas Mental Health
 7-8     Code] and with the consent of the head of the facility, or the
 7-9     court may give the defendant into the care of a responsible person
7-10     on satisfactory security being given for the defendant's [his]
7-11     proper care and protection; otherwise, the defendant shall be
7-12     discharged.
7-13           SECTION 7.  Section 8, Article 46.02, Code of Criminal
7-14     Procedure, is amended to read as follows:
7-15           Sec. 8.  GENERAL.  (a)  A person committed to a mental health
7-16     or residential care [mental retardation] facility as a result of
7-17     the proceedings initiated pursuant to Section 6 or Section 7 of
7-18     this article and who presently has felony charges pending against
7-19     the person [him] or has had felony charges against the person [him]
7-20     dismissed pursuant to Section 7 of this article shall be committed
7-21     to the maximum security unit of any facility designated by the
7-22     Texas Department of Mental Health and Mental Retardation.  Within
7-23     60 days following arrival at the maximum security unit, the person
7-24     shall be transferred to a nonsecurity unit or to a community
7-25     program of a mental health or residential care [mental retardation]
7-26     facility or a community mental health and mental retardation center
7-27     designated by the Texas Department of Mental Health and Mental
7-28     Retardation unless the person is determined to be manifestly
7-29     dangerous by a review board with the Texas Department of Mental
7-30     Health and Mental Retardation.  The Commissioner of Mental Health
7-31     and Mental Retardation shall appoint a review board of five
7-32     members, including one psychiatrist licensed to practice medicine
7-33     in the State of Texas and two persons who work directly with
7-34     persons with mental illness or mental retardation [mental health
7-35     patients or mentally retarded clients], to determine whether the
7-36     person is manifestly dangerous and, as a result of the danger the
7-37     person [which he] presents, requires continued placement in a
7-38     maximum security unit.  The review board shall make no
7-39     determination as to the person's need for treatment.  A finding
7-40     that the person is not manifestly dangerous is not a medical
7-41     determination that the person no longer meets the criteria for
7-42     involuntary civil commitment under Subtitle C or D, Title 7, Health
7-43     and Safety Code [the Texas Mental Health Code (Article 5547-1 et
7-44     seq., Vernon's Texas Civil Statutes) or the Mentally Retarded
7-45     Persons Act of 1977 (Article 5547-300, Vernon's Texas Civil
7-46     Statutes)].  If the superintendent of the facility at which the
7-47     maximum security unit is located disagrees with the determination,
7-48     then the matter will be referred to the Commissioner of Mental
7-49     Health and Mental Retardation who will resolve the disagreement by
7-50     deciding whether the person is manifestly dangerous.  A person
7-51     committed to a mental health facility as a result of the
7-52     proceedings initiated pursuant to Section 6 or Section 7 of this
7-53     article who presently has misdemeanor charges pending against the
7-54     person [him] or has had misdemeanor charges against the person
7-55     [him] dismissed pursuant to Section 7 of this article shall be
7-56     committed to the mental health facility which is designated by the
7-57     Commissioner of Mental Health and Mental Retardation to serve the
7-58     catchment area in which the committing court is located.  A person
7-59     committed to a residential care [mental retardation] facility as a
7-60     result of the proceedings initiated pursuant to Section 6 or 7 of
7-61     this article and who presently has misdemeanor charges pending
7-62     against or has had misdemeanor charges against the person [him]
7-63     dismissed pursuant to Section 7 of this article shall be committed
7-64     to the maximum security unit of any facility designated by the
7-65     Texas Department of Mental Health and Mental Retardation for a
7-66     maximum of 60 days pending placement in a nonsecurity facility.
7-67           (b)  The court shall order that a transcript of all medical
7-68     testimony received in both the criminal proceedings and the civil
7-69     commitment proceedings be prepared forthwith by the court reporters
 8-1     and that the [such] transcripts, together with a statement of the
 8-2     facts and circumstances surrounding the alleged offense, shall
 8-3     accompany the patient to the mental health or residential care
 8-4     [mental retardation] facility.
 8-5           (c)  If the head of a mental health facility determines that
 8-6     a patient committed to a state mental hospital for a period not
 8-7     exceeding 90 days as a result of proceedings initiated pursuant to
 8-8     Section 6 or Section 7 of this article requires extended
 8-9     court-ordered inpatient mental health services, the head of the
8-10     facility [he] shall notify the court from which the patient was
8-11     committed in writing at least 30 days prior to the expiration of
8-12     the temporary commitment.  The court from which the patient was
8-13     committed shall order the sheriff of the county in which the court
8-14     is located to return the patient for a hearing on court-ordered
8-15     inpatient mental health services or shall make arrangements for the
8-16     hearing to be held in an appropriate court of the county in which
8-17     the patient is hospitalized.  Provided, however, that if the
8-18     patient has not received a hearing on court-ordered inpatient
8-19     mental health services by the date on which the temporary
8-20     commitment expires, the head of the facility in which the patient
8-21     is hospitalized shall cause the patient to be immediately
8-22     transported to the committing court and placed in the custody of
8-23     the sheriff of the county in which the court is located.  That
8-24     county shall reimburse the facility of the Texas Department of
8-25     Mental Health and Mental Retardation for the mileage and per diem
8-26     expenses of the personnel required to transport the defendant
8-27     calculated in accordance with the state travel regulations in
8-28     effect at the time.
8-29           (d)  The head of a mental health or residential care [mental
8-30     retardation] facility to which a person has been committed or
8-31     transferred as a result of the proceedings initiated pursuant to
8-32     Section 6 of this article and who has received written notice from
8-33     a court or prosecuting attorney that criminal charges are pending
8-34     against the person shall notify the court in writing at least 14
8-35     days prior to the discharge of the person unless the notice
8-36     provided for in Subsection (c) of this section [above] has been
8-37     given.  A written report as to the competency of the person to
8-38     stand trial shall accompany the notice of discharge.
8-39           (e)  On written notice by the head of a mental health or
8-40     residential care [mental retardation] facility that in the [his]
8-41     opinion of the head of the facility, a person who has been civilly
8-42     committed to that facility and against whom criminal charges are
8-43     pending is competent to stand trial, or on good cause shown by the
8-44     defendant, the defense [his] counsel, or the prosecuting attorney,
8-45     the court in which the criminal charges are pending may hold a
8-46     hearing to determine the competency of the defendant to stand
8-47     trial.  The hearing shall be before a jury unless waived by
8-48     agreement of the parties.  The order setting the hearing shall
8-49     order the defendant placed in the custody of the sheriff for
8-50     transportation to the court.  The court may appoint disinterested
8-51     experts to examine the defendant in accordance with the provisions
8-52     of Section 3 of this article.  If the defendant is found to be
8-53     competent to stand trial, the proceedings on the criminal charges
8-54     may be continued.  If the defendant is found incompetent to stand
8-55     trial and is under an order of commitment to a mental health or
8-56     residential care [mental retardation] facility, the court shall
8-57     order the defendant [him] placed in the custody of the sheriff for
8-58     transportation to that facility.  If the defendant is found
8-59     incompetent to stand trial and has been discharged from a mental
8-60     health or residential care [mental retardation] facility, the court
8-61     may civilly recommit the person under Subtitle C or D, Title 7,
8-62     Health and Safety Code [pursuant to the provisions of the Texas
8-63     Mental Health Code, as amended (Article 5547-1 et seq., Vernon's
8-64     Texas Civil Statutes), or pursuant to the provisions of the
8-65     Mentally Retarded Persons Act of 1977, as amended (Article
8-66     5547-300, Vernon's Texas Civil Statutes)].  The [Such a]
8-67     recommitment shall be made to the facility from which the defendant
8-68     was discharged if accomplished under Subtitle C, Title 7, Health
8-69     and Safety Code, [the Texas Mental Health Code] and to the Texas
 9-1     Department of Mental Health and Mental Retardation if accomplished
 9-2     under Subtitle D, Title 7, Health and Safety Code [the Mentally
 9-3     Retarded Persons Act of 1977].  Subsection (d) of this section [The
 9-4     provisions of (d) above] shall again be followed prior to discharge
 9-5     of the committed person.
 9-6           SECTION 8.  Article 46.01, Code of Criminal Procedure, is
 9-7     repealed.
 9-8           SECTION 9.  The change in law made by Sections 1 through 7 of
 9-9     this Act applies only to a competency hearing initiated on or after
9-10     the effective date of this Act.  A competency hearing initiated
9-11     before the effective date of this Act is covered by the law in
9-12     effect when the hearing was initiated, and the former law is
9-13     continued in effect for that purpose.
9-14           SECTION 10.  This Act takes effect September 1, 1999.
9-15           SECTION 11.  The importance of this legislation and the
9-16     crowded condition of the calendars in both houses create an
9-17     emergency and an imperative public necessity that the
9-18     constitutional rule requiring bills to be read on three several
9-19     days in each house be suspended, and this rule is hereby suspended.
9-20                                  * * * * *