1-1 By: Farabee, Uher (Senate Sponsor - Armbrister) H.B. No. 1071
1-2 (In the Senate - Received from the House May 1, 2001;
1-3 May 2, 2001, read first time and referred to Committee on Criminal
1-4 Justice; May 11, 2001, reported favorably by the following vote:
1-5 Yeas 4, Nays 0; May 11, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to certain procedures used to deal with a criminal
1-9 defendant or juvenile suspect who may have a mental illness or
1-10 mental retardation.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Article 16.22, Code of Criminal Procedure, is
1-13 amended to read as follows:
1-14 Art. 16.22. EXAMINATION AND TRANSFER OF DEFENDANT SUSPECTED
1-15 OF HAVING MENTAL ILLNESS OR MENTAL RETARDATION. (a) Not later
1-16 than 72 hours after receiving evidence or a statement that may
1-17 establish reasonable cause to believe that a defendant committed to
1-18 the sheriff's custody has a mental illness or is a person with
1-19 mental retardation, the sheriff shall notify a magistrate of that
1-20 fact. A defendant's behavior or the result of a prior evaluation
1-21 indicating a need for referral for further mental health or mental
1-22 retardation assessment must be considered in determining whether
1-23 reasonable cause exists to believe the defendant has a mental
1-24 illness or is a person with mental retardation. On a determination
1-25 that there is reasonable cause to believe that the defendant has a
1-26 mental illness or is a person with mental retardation, the
1-27 magistrate shall order an examination of the defendant by the local
1-28 mental health or mental retardation authority or another [a]
1-29 disinterested expert experienced and qualified in mental health or
1-30 mental retardation to determine whether the defendant has a mental
1-31 illness as defined by Section 571.003, Health and Safety Code, or
1-32 is a person with mental retardation as defined by Section 591.003,
1-33 Health and Safety Code. If the defendant fails or refuses to submit
1-34 to examination, the magistrate may order the defendant to submit to
1-35 [custody for] examination in a mental health facility determined to
1-36 be appropriate by the local mental health or mental retardation
1-37 authority for a reasonable period not to exceed 21 days. The
1-38 magistrate may [not] order a defendant to a facility operated by
1-39 the Texas Department of Mental Health and Mental Retardation for
1-40 examination only on request of the local mental health or mental
1-41 retardation authority and with [without] the consent of the head of
1-42 the [that] facility. If a defendant who has been ordered to a
1-43 facility operated by the Texas Department of Mental Health and
1-44 Mental Retardation for examination remains in the facility for a
1-45 period exceeding 21 days, the head of that facility shall cause the
1-46 defendant to be immediately transported to the committing court and
1-47 placed in the custody of the sheriff of the county in which the
1-48 committing court is located. That county shall reimburse the Texas
1-49 Department of Mental Health and Mental Retardation facility for the
1-50 mileage and per diem expenses of the personnel required to
1-51 transport the defendant calculated in accordance with the state
1-52 travel regulations in effect at the time.
1-53 (b) A written report of the examination shall be submitted
1-54 to the magistrate within 30 days of the order of examination, and
1-55 the magistrate shall furnish copies of the report to the defense
1-56 counsel and the prosecuting attorney. The report shall include a
1-57 description of the procedures used in the examination, the
1-58 examiner's observations and findings pertaining to whether the
1-59 defendant is a person who has a mental illness or is a person with
1-60 mental retardation and whether the defendant is competent to stand
1-61 trial, and recommended treatment.
1-62 (c) After the court receives the examining expert's report
1-63 relating to the defendant under Subsection (b), the court may
1-64 resume:
2-1 (1) [the] criminal proceedings against the defendant,
2-2 including proceedings related to the defendant's release on
2-3 personal bond under Article 17.032; or
2-4 (2) competency proceedings, if required, as provided
2-5 by Article 46.02 or other proceedings affecting the defendant's
2-6 receipt of appropriate court-ordered mental health or mental
2-7 retardation services, including proceedings related to the
2-8 defendant's receipt of outpatient mental health services under
2-9 Section 574.034, Health and Safety Code [of this code].
2-10 SECTION 2. Articles 17.032(b) and (c), Code of Criminal
2-11 Procedure, are amended to read as follows:
2-12 (b) A magistrate shall release a defendant on personal bond
2-13 unless good cause is shown otherwise [or] if the:
2-14 (1) defendant is not charged with and has not been
2-15 previously convicted of a violent offense;
2-16 (2) defendant is examined by the local mental health
2-17 or mental retardation authority or another [a] mental health expert
2-18 under Article 16.22 of this code;
2-19 (3) examining expert, in a report submitted to the
2-20 magistrate under Article 16.22 [of this code]:
2-21 (A) concludes that the defendant has a mental
2-22 illness or is a person with mental retardation and is nonetheless
2-23 competent to stand trial; and
2-24 (B) recommends mental health treatment for the
2-25 defendant; and
2-26 (4) magistrate determines, in consultation with the
2-27 [a] local mental health or mental retardation authority [services
2-28 provider], that appropriate community-based mental health or mental
2-29 retardation services for the defendant are available through the
2-30 Texas Department of Mental Health and Mental Retardation under
2-31 Section 534.053, Health and Safety Code, or through another mental
2-32 health or mental retardation services provider.
2-33 (c) The magistrate, unless good cause is shown for not
2-34 requiring treatment, shall require as a condition of release on
2-35 personal bond under this article that the defendant submit to
2-36 outpatient or inpatient mental health or mental retardation
2-37 treatment as recommended by the local mental health or mental
2-38 retardation authority if the defendant's:
2-39 (1) mental illness or mental retardation is chronic in
2-40 nature; or
2-41 (2) ability to function independently will continue to
2-42 deteriorate if the defendant is not treated.
2-43 SECTION 3. Sections 3(a), (b), and (f), Article 46.02, Code
2-44 of Criminal Procedure, are amended to read as follows:
2-45 (a) At any time the issue of the defendant's incompetency to
2-46 stand trial is raised, the court may, on its own motion or motion
2-47 by the defendant, his counsel, or the prosecuting attorney, appoint
2-48 the local mental health or mental retardation authority or other
2-49 disinterested experts experienced and qualified in mental health or
2-50 mental retardation to examine the defendant with regard to his
2-51 competency to stand trial and to testify at any trial or hearing on
2-52 this issue.
2-53 (b) The court may order any defendant to submit to
2-54 examination for the purposes described in this article. If the
2-55 defendant is free on bail, the court in its discretion may order
2-56 him to submit to examination. If the defendant fails or refuses to
2-57 submit to examination, the court may order him to submit to
2-58 [custody for] examination in a mental health facility determined to
2-59 be appropriate by the local mental health or mental retardation
2-60 authority for a reasonable period not to exceed 21 days. The court
2-61 may [not] order a defendant to a facility operated by the Texas
2-62 Department of Mental Health and Mental Retardation for examination
2-63 only on request of the local mental health or mental retardation
2-64 authority and with [without] the consent of the head of the [that]
2-65 facility [or for a period exceeding 21 days]. If a defendant who
2-66 has been ordered to a facility operated by Texas Department of
2-67 Mental Health and Mental Retardation for examination remains in
2-68 such facility for a period of time exceeding 21 days, the head of
2-69 that facility shall cause the defendant to be immediately
3-1 transported to the committing court and placed in the custody of
3-2 the sheriff of the county in which the committing court is located.
3-3 That county shall reimburse the Texas Department of Mental Health
3-4 and Mental Retardation facility for the mileage and per diem
3-5 expenses of the personnel required to transport the defendant
3-6 calculated in accordance with the state travel regulations in
3-7 effect at the time.
3-8 (f) The local mental health or mental retardation authority
3-9 or other appointed experts shall be paid by the county in which the
3-10 indictment was returned or information was filed. A facility
3-11 [operated by the Texas Department of Mental Health and Mental
3-12 Retardation] which accepts a defendant for examination under
3-13 [Subsection (a) of] this section shall be reimbursed by the county
3-14 in which the indictment was returned or information was filed for
3-15 such expenses incurred as are determined by the department to be
3-16 reasonably necessary and incidental to the proper examination of
3-17 the defendant.
3-18 SECTION 4. Section 5(a), Article 46.02, Code of Criminal
3-19 Procedure, is amended to read as follows:
3-20 (a) When a defendant has been determined incompetent to
3-21 stand trial for a [any] felony or [for a] misdemeanor because of
3-22 mental illness or mental retardation, and absent a determination
3-23 that there is no substantial probability that the defendant will
3-24 attain competency to stand trial in the foreseeable future, the
3-25 court shall determine whether the conduct committed by the
3-26 defendant involved an act, attempt, or threat of serious bodily
3-27 injury to another person. If the court determines that the
3-28 defendant's conduct involved an act, attempt, or threat of serious
3-29 bodily injury to another person, the court shall enter an order
3-30 committing the defendant to the maximum security unit of any
3-31 facility designated by the Texas Department of Mental Health and
3-32 Mental Retardation, to an agency of the United States operating a
3-33 mental hospital, or to a Veterans Administration hospital for a
3-34 period not to exceed 18 months. If the court determines that the
3-35 defendant's conduct did not involve an act, attempt, or threat of
3-36 serious bodily injury to another person [When a defendant has been
3-37 determined incompetent to stand trial for a misdemeanor because of
3-38 mental illness, and absent a determination that there is no
3-39 substantial probability that the defendant will attain competency
3-40 to stand trial in the foreseeable future], the court shall enter an
3-41 order committing the defendant to a [the] mental health facility
3-42 determined to be appropriate by the local mental health or mental
3-43 retardation authority [designated by the Commissioner of Mental
3-44 Health and Mental Retardation to serve the catchment area in which
3-45 the committing court is located] for a period not to exceed 18
3-46 months. On request of the local mental health or mental
3-47 retardation authority, the court may enter an order committing the
3-48 defendant to a facility operated by the Texas Department of Mental
3-49 Health and Mental Retardation. An order issued under this
3-50 subsection shall also place the defendant in the custody of the
3-51 sheriff for transportation to the facility to be confined in the
3-52 facility for further examination and treatment toward the specific
3-53 objective of attaining competency to stand trial. The court shall
3-54 order that a transcript of all medical testimony received by the
3-55 jury be forthwith prepared by the court reporter and that the
3-56 transcript, together with a statement of the facts and
3-57 circumstances surrounding the alleged offense, shall accompany the
3-58 patient to the facility.
3-59 SECTION 5. (a) Section 51.20(a), Family Code, is amended to
3-60 read as follows:
3-61 (a) At any stage of the proceedings under this title, the
3-62 juvenile court may order a child who is referred to the juvenile
3-63 court or who is alleged by a petition or found to have engaged in
3-64 delinquent conduct or conduct indicating a need for supervision to
3-65 be examined by the local mental health or mental retardation
3-66 authority or another [an] appropriate expert, including a
3-67 physician, psychiatrist, or psychologist.
3-68 (b) This section applies to an examination of a child under
3-69 the jurisdiction of the juvenile court as provided by Section
4-1 51.20, Family Code, as amended by this section, that takes place on
4-2 or after the effective date of this Act, without regard to whether
4-3 the child was first placed under the jurisdiction of the juvenile
4-4 court before, on, or after that date.
4-5 SECTION 6. Except as provided by Section 5 of this Act,
4-6 amending Section 51.20(a), Family Code, the change in law made by
4-7 this Act applies only to a defendant charged with an offense
4-8 committed on or after the effective date of this Act. A defendant
4-9 charged with an offense committed before the effective date of this
4-10 Act is covered by the law in effect when the offense was committed,
4-11 and the former law is continued in effect for that purpose. For
4-12 purposes of this section, an offense was committed before the
4-13 effective date of this Act if any element of the offense occurred
4-14 before that date.
4-15 SECTION 7. This Act takes effect September 1, 2001.
4-16 * * * * *