1-1 AN ACT
1-2 relating to certain procedures used to deal with a criminal
1-3 defendant or juvenile suspect who may have a mental illness or
1-4 mental retardation.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Article 16.22, Code of Criminal Procedure, is
1-7 amended to read as follows:
1-8 Art. 16.22. EXAMINATION AND TRANSFER OF DEFENDANT SUSPECTED
1-9 OF HAVING MENTAL ILLNESS OR MENTAL RETARDATION. (a) Not later
1-10 than 72 hours after receiving evidence or a statement that may
1-11 establish reasonable cause to believe that a defendant committed to
1-12 the sheriff's custody has a mental illness or is a person with
1-13 mental retardation, the sheriff shall notify a magistrate of that
1-14 fact. A defendant's behavior or the result of a prior evaluation
1-15 indicating a need for referral for further mental health or mental
1-16 retardation assessment must be considered in determining whether
1-17 reasonable cause exists to believe the defendant has a mental
1-18 illness or is a person with mental retardation. On a determination
1-19 that there is reasonable cause to believe that the defendant has a
1-20 mental illness or is a person with mental retardation, the
1-21 magistrate shall order an examination of the defendant by the local
1-22 mental health or mental retardation authority or another [a]
1-23 disinterested expert experienced and qualified in mental health or
1-24 mental retardation to determine whether the defendant has a mental
2-1 illness as defined by Section 571.003, Health and Safety Code, or
2-2 is a person with mental retardation as defined by Section 591.003,
2-3 Health and Safety Code. If the defendant fails or refuses to submit
2-4 to examination, the magistrate may order the defendant to submit to
2-5 [custody for] examination in a mental health facility determined to
2-6 be appropriate by the local mental health or mental retardation
2-7 authority for a reasonable period not to exceed 21 days. The
2-8 magistrate may [not] order a defendant to a facility operated by
2-9 the Texas Department of Mental Health and Mental Retardation for
2-10 examination only on request of the local mental health or mental
2-11 retardation authority and with [without] the consent of the head of
2-12 the [that] facility. If a defendant who has been ordered to a
2-13 facility operated by the Texas Department of Mental Health and
2-14 Mental Retardation for examination remains in the facility for a
2-15 period exceeding 21 days, the head of that facility shall cause the
2-16 defendant to be immediately transported to the committing court and
2-17 placed in the custody of the sheriff of the county in which the
2-18 committing court is located. That county shall reimburse the Texas
2-19 Department of Mental Health and Mental Retardation facility for the
2-20 mileage and per diem expenses of the personnel required to
2-21 transport the defendant calculated in accordance with the state
2-22 travel regulations in effect at the time.
2-23 (b) A written report of the examination shall be submitted
2-24 to the magistrate within 30 days of the order of examination, and
2-25 the magistrate shall furnish copies of the report to the defense
2-26 counsel and the prosecuting attorney. The report shall include a
2-27 description of the procedures used in the examination, the
3-1 examiner's observations and findings pertaining to whether the
3-2 defendant is a person who has a mental illness or is a person with
3-3 mental retardation and whether the defendant is competent to stand
3-4 trial, and recommended treatment.
3-5 (c) After the court receives the examining expert's report
3-6 relating to the defendant under Subsection (b), the court may
3-7 resume:
3-8 (1) [the] criminal proceedings against the defendant,
3-9 including proceedings related to the defendant's release on
3-10 personal bond under Article 17.032; or
3-11 (2) competency proceedings, if required, as provided
3-12 by Article 46.02 or other proceedings affecting the defendant's
3-13 receipt of appropriate court-ordered mental health or mental
3-14 retardation services, including proceedings related to the
3-15 defendant's receipt of outpatient mental health services under
3-16 Section 574.034, Health and Safety Code [of this code].
3-17 SECTION 2. Articles 17.032(b) and (c), Code of Criminal
3-18 Procedure, are amended to read as follows:
3-19 (b) A magistrate shall release a defendant on personal bond
3-20 unless good cause is shown otherwise [or] if the:
3-21 (1) defendant is not charged with and has not been
3-22 previously convicted of a violent offense;
3-23 (2) defendant is examined by the local mental health
3-24 or mental retardation authority or another [a] mental health expert
3-25 under Article 16.22 of this code;
3-26 (3) examining expert, in a report submitted to the
3-27 magistrate under Article 16.22 [of this code]:
4-1 (A) concludes that the defendant has a mental
4-2 illness or is a person with mental retardation and is nonetheless
4-3 competent to stand trial; and
4-4 (B) recommends mental health treatment for the
4-5 defendant; and
4-6 (4) magistrate determines, in consultation with the
4-7 [a] local mental health or mental retardation authority [services
4-8 provider], that appropriate community-based mental health or mental
4-9 retardation services for the defendant are available through the
4-10 Texas Department of Mental Health and Mental Retardation under
4-11 Section 534.053, Health and Safety Code, or through another mental
4-12 health or mental retardation services provider.
4-13 (c) The magistrate, unless good cause is shown for not
4-14 requiring treatment, shall require as a condition of release on
4-15 personal bond under this article that the defendant submit to
4-16 outpatient or inpatient mental health or mental retardation
4-17 treatment as recommended by the local mental health or mental
4-18 retardation authority if the defendant's:
4-19 (1) mental illness or mental retardation is chronic in
4-20 nature; or
4-21 (2) ability to function independently will continue to
4-22 deteriorate if the defendant is not treated.
4-23 SECTION 3. Sections 3(a), (b), and (f), Article 46.02, Code
4-24 of Criminal Procedure, are amended to read as follows:
4-25 (a) At any time the issue of the defendant's incompetency to
4-26 stand trial is raised, the court may, on its own motion or motion
4-27 by the defendant, his counsel, or the prosecuting attorney, appoint
5-1 the local mental health or mental retardation authority or other
5-2 disinterested experts experienced and qualified in mental health or
5-3 mental retardation to examine the defendant with regard to his
5-4 competency to stand trial and to testify at any trial or hearing on
5-5 this issue.
5-6 (b) The court may order any defendant to submit to
5-7 examination for the purposes described in this article. If the
5-8 defendant is free on bail, the court in its discretion may order
5-9 him to submit to examination. If the defendant fails or refuses to
5-10 submit to examination, the court may order him to submit to
5-11 [custody for] examination in a mental health facility determined to
5-12 be appropriate by the local mental health or mental retardation
5-13 authority for a reasonable period not to exceed 21 days. The court
5-14 may [not] order a defendant to a facility operated by the Texas
5-15 Department of Mental Health and Mental Retardation for examination
5-16 only on request of the local mental health or mental retardation
5-17 authority and with [without] the consent of the head of the [that]
5-18 facility [or for a period exceeding 21 days]. If a defendant who
5-19 has been ordered to a facility operated by Texas Department of
5-20 Mental Health and Mental Retardation for examination remains in
5-21 such facility for a period of time exceeding 21 days, the head of
5-22 that facility shall cause the defendant to be immediately
5-23 transported to the committing court and placed in the custody of
5-24 the sheriff of the county in which the committing court is located.
5-25 That county shall reimburse the Texas Department of Mental Health
5-26 and Mental Retardation facility for the mileage and per diem
5-27 expenses of the personnel required to transport the defendant
6-1 calculated in accordance with the state travel regulations in
6-2 effect at the time.
6-3 (f) The local mental health or mental retardation authority
6-4 or other appointed experts shall be paid by the county in which the
6-5 indictment was returned or information was filed. A facility
6-6 [operated by the Texas Department of Mental Health and Mental
6-7 Retardation] which accepts a defendant for examination under
6-8 [Subsection (a) of] this section shall be reimbursed by the county
6-9 in which the indictment was returned or information was filed for
6-10 such expenses incurred as are determined by the department to be
6-11 reasonably necessary and incidental to the proper examination of
6-12 the defendant.
6-13 SECTION 4. Section 5(a), Article 46.02, Code of Criminal
6-14 Procedure, is amended to read as follows:
6-15 (a) When a defendant has been determined incompetent to
6-16 stand trial for a [any] felony or [for a] misdemeanor because of
6-17 mental illness or mental retardation, and absent a determination
6-18 that there is no substantial probability that the defendant will
6-19 attain competency to stand trial in the foreseeable future, the
6-20 court shall determine whether the conduct committed by the
6-21 defendant involved an act, attempt, or threat of serious bodily
6-22 injury to another person. If the court determines that the
6-23 defendant's conduct involved an act, attempt, or threat of serious
6-24 bodily injury to another person, the court shall enter an order
6-25 committing the defendant to the maximum security unit of any
6-26 facility designated by the Texas Department of Mental Health and
6-27 Mental Retardation, to an agency of the United States operating a
7-1 mental hospital, or to a Veterans Administration hospital for a
7-2 period not to exceed 18 months. If the court determines that the
7-3 defendant's conduct did not involve an act, attempt, or threat of
7-4 serious bodily injury to another person [When a defendant has been
7-5 determined incompetent to stand trial for a misdemeanor because of
7-6 mental illness, and absent a determination that there is no
7-7 substantial probability that the defendant will attain competency
7-8 to stand trial in the foreseeable future], the court shall enter an
7-9 order committing the defendant to a [the] mental health facility
7-10 determined to be appropriate by the local mental health or mental
7-11 retardation authority [designated by the Commissioner of Mental
7-12 Health and Mental Retardation to serve the catchment area in which
7-13 the committing court is located] for a period not to exceed 18
7-14 months. On request of the local mental health or mental
7-15 retardation authority, the court may enter an order committing the
7-16 defendant to a facility operated by the Texas Department of Mental
7-17 Health and Mental Retardation. An order issued under this
7-18 subsection shall also place the defendant in the custody of the
7-19 sheriff for transportation to the facility to be confined in the
7-20 facility for further examination and treatment toward the specific
7-21 objective of attaining competency to stand trial. The court shall
7-22 order that a transcript of all medical testimony received by the
7-23 jury be forthwith prepared by the court reporter and that the
7-24 transcript, together with a statement of the facts and
7-25 circumstances surrounding the alleged offense, shall accompany the
7-26 patient to the facility.
7-27 SECTION 5. (a) Section 51.20(a), Family Code, is amended to
8-1 read as follows:
8-2 (a) At any stage of the proceedings under this title, the
8-3 juvenile court may order a child who is referred to the juvenile
8-4 court or who is alleged by a petition or found to have engaged in
8-5 delinquent conduct or conduct indicating a need for supervision to
8-6 be examined by the local mental health or mental retardation
8-7 authority or another [an] appropriate expert, including a
8-8 physician, psychiatrist, or psychologist.
8-9 (b) This section applies to an examination of a child under
8-10 the jurisdiction of the juvenile court as provided by Section
8-11 51.20, Family Code, as amended by this section, that takes place on
8-12 or after the effective date of this Act, without regard to whether
8-13 the child was first placed under the jurisdiction of the juvenile
8-14 court before, on, or after that date.
8-15 SECTION 6. Except as provided by Section 5 of this Act,
8-16 amending Section 51.20(a), Family Code, the change in law made by
8-17 this Act applies only to a defendant charged with an offense
8-18 committed on or after the effective date of this Act. A defendant
8-19 charged with an offense committed before the effective date of this
8-20 Act is covered by the law in effect when the offense was committed,
8-21 and the former law is continued in effect for that purpose. For
8-22 purposes of this section, an offense was committed before the
8-23 effective date of this Act if any element of the offense occurred
8-24 before that date.
8-25 SECTION 7. This Act takes effect September 1, 2001.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 1071 was passed by the House on April
30, 2001, by a non-record vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 1071 was passed by the Senate on May
23, 2001, by the following vote: Yeas 30, Nays 0, 1 present, not
voting.
_______________________________
Secretary of the Senate
APPROVED: __________________________
Date
__________________________
Governor