SRC-JBJ H.B. 1071 77(R)   BILL ANALYSIS


Senate Research Center   H.B. 1071
By: Farabee (Armbrister)
Criminal Justice
5/9/2001
Engrossed


DIGEST AND PURPOSE 

Although there are a number of mechanisms in place to divert certain
offenders with mental illness or mental retardation from jails to
appropriate facilities, current law does not expressly define the
procedures for diverting persons to these mental health facilities.  As a
result, many judges and attorneys are uncertain of how to determine which
individuals are appropriate for diversion and may be hesitant to divert
individuals to mental health facilities.  H.B. 1071 incorporates specific
references to the role of local mental health and mental retardation
authorities in performing evaluations of defendants and making
recommendations to the court in regard to diverting certain offenders from
jail to mental health facilities; modifies the contents of the defendant's
evaluation report; and modifies provisions relating to mental health
examinations and the release of a defendant on personal bond. 

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a
state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Article 16.22, Code of Criminal Procedure, as follows:

(a)  Requires the magistrate, on a determination that there is reasonable
cause to believe that the defendant has a mental illness or is a person
with mental retardation, to order an examination of the defendant by the
local mental health or mental retardation authority or another
disinterested expert experienced and qualified in mental health or mental
retardation to determine whether the defendant has a mental illness as
defined by Section 571.003, Health and Safety Code, or is a person with
mental retardation as defined by Section 591.003, Health and Safety Code.
Authorizes the magistrate, if the defendant fails or refuses to submit to
examination, to order the defendant to submit to, rather than custody for,
examination in a mental health facility determined to be appropriate by the
local mental health or mental retardation authority for a reasonable period
not to exceed 21 days.  Authorizes the magistrate to order a defendant to a
facility operated by the Texas Department of Mental Health and Mental
Retardation (department) for examination only on request of the local
mental health or mental retardation authority and with the consent of the
head of the facility, rather than prohibiting the action without the
consent of the head of the facility.   

(b)  Requires the report to include a description of the procedures used in
the examination, the examiner's observations and findings pertaining to
whether the defendant is a person who has a mental illness or is a person
with mental retardation and whether the defendant is competent to stand
trial, and recommended treatment.   

(c)  Authorizes the court, after the court receives the examining expert's
report relating to the defendant under Subsection (b), to resume criminal
proceedings against the defendant, including proceedings related to the
defendant's release on personal bond under Article 17.032 or competency
proceedings, if required, as provided by Article 46.02 or other proceedings
affecting the defendant's receipt of appropriate court-ordered mental
health or mental retardation services, including proceedings related to the
defendant's receipt of outpatient mental health services under Section
574.034, Health and Safety Code. 
 
SECTION 2.  Amends Articles 17.032(b) and (c), Code of Criminal Procedure,
to require a magistrate to release a defendant on personal bond unless good
cause is shown otherwise under certain conditions.  Requires the
magistrate, unless good cause is shown for not requiring treatment, to
require as a condition of release on personal bond under this article that
the defendant submit to outpatient or inpatient mental health or mental
retardation treatment as recommended by the local mental health or mental
retardation authority under certain conditions. 

SECTION 3.  Amends Sections 3(a), (b), and (f), Article 46.02, Code of
Criminal Procedure, to delete existing text regarding facilities operated
by the department and a reference to Subsection (a). Makes conforming and
nonsubstantive changes. 

SECTION 4.  Amends Section 5(a), Article 46.02, Code of Criminal Procedure,
to require the court, when a defendant has been determined incompetent to
stand trial for a felony or misdemeanor because of mental illness or mental
retardation, and absent a determination that there is no substantial
probability that the defendant will attain competency to stand trial in the
foreseeable future, to determine whether the conduct committed by the
defendant involved an act, attempt, or threat of serious bodily injury to
another person.  Requires the court, if the court determines that the
defendant's conduct involved an act, attempt, or threat of serious bodily
injury to another person, to enter an order committing the defendant to the
maximum security unit of any facility designated by the department, to an
agency of the United States operating a mental hospital, or to a Veterans
Administration hospital for a period not to exceed 18 months.  Requires the
court, if the court determines that the defendant's conduct did not involve
an act, attempt, or threat of serious bodily injury to another person, to
enter an order committing the defendant to a mental health facility
determined to be appropriate by the local mental health or mental
retardation authority for a period not to exceed 18 months.  Deletes
existing text regarding the determination of a defendant's competence to
stand trial.  Deletes existing text regarding a designation by the
Commissioner of Mental Health and Mental Retardation.  Authorizes the
court, on request of the local mental health or mental retardation
authority, to enter an order committing the defendant to a facility
operated by the department.  
 
SECTION 5.  (a)  Amends Section 51.20(a), Family Code, to make a conforming
change. 

(b)  Provides that this section applies to an examination of a child under
the jurisdiction of the juvenile court as provided by Section 51.20, Family
Code, as amended by this section, that takes place on or after the
effective date of this Act, without regard to whether the child was first
placed under the jurisdiction of the juvenile court before, on, or after
that date. 
 
SECTION 6.  Makes application of this Act, except as provided by Section 5
of this Act, prospective. 
 
SECTION 7.  Effective date: September 1, 2001.