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 * * * * *