By Coleman H.B. No. 1581
77R2503 PEP-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to determining whether a criminal defendant is insane or
1-3 otherwise incompetent to stand trial.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 3(a), (b), and (d), Article 46.02, Code
1-6 of Criminal Procedure, are amended to read as follows:
1-7 (a) At any time the issue of the defendant's incompetency to
1-8 stand trial is raised, the court shall [may, on its own motion or
1-9 motion by the defendant, his counsel, or the prosecuting attorney,]
1-10 appoint disinterested experts experienced and qualified by
1-11 education and training in mental health or mental retardation and
1-12 experienced in forensic evaluation to gather background information
1-13 and to examine the defendant with regard to his competency to stand
1-14 trial and to testify at any trial or hearing on this issue.
1-15 (b) The court may order any defendant to submit to
1-16 examination for the purposes described in this article, except that
1-17 the court may not issue the order until the defendant has retained
1-18 an attorney or the court has appointed an attorney to represent the
1-19 defendant. If the defendant is free on bail, the court in its
1-20 discretion may order him to submit to examination. If the
1-21 defendant fails or refuses to submit to examination, the court may
1-22 order him to custody for examination for a reasonable period not to
1-23 exceed 21 days. The court may not order a defendant to a facility
1-24 operated by the Texas Department of Mental Health and Mental
2-1 Retardation for examination without the consent of the head of that
2-2 facility or for a period exceeding 21 days. If a defendant who has
2-3 been ordered to a facility operated by Texas Department of Mental
2-4 Health and Mental Retardation for examination remains in such
2-5 facility for a period of time exceeding 21 days, the head of that
2-6 facility shall cause the defendant to be immediately transported to
2-7 the committing court and placed in the custody of the sheriff of
2-8 the county in which the committing court is located. That county
2-9 shall reimburse the Texas Department of Mental Health and Mental
2-10 Retardation facility for the mileage and per diem expenses of the
2-11 personnel required to transport the defendant calculated in
2-12 accordance with the state travel regulations in effect at the time.
2-13 (d) A written report of the examination shall be submitted
2-14 to the court within 30 days of the order of examination, and the
2-15 court shall furnish copies of the report to the defense counsel and
2-16 the prosecuting attorney. The report shall include each of the
2-17 matters required to be included in a written report of an
2-18 examination under Article 16.22 [a description of the procedures
2-19 used in the examination, the examiner's observations and findings
2-20 pertaining to the defendant's competency to stand trial, and the
2-21 recommended treatment]. If the examiner concludes that the
2-22 defendant is incompetent to stand trial, the report shall include
2-23 the examiner's [observations and] findings and opinions about
2-24 whether there is a substantial probability that the defendant will
2-25 attain the competence to stand trial in the foreseeable future.
2-26 The examiner shall also submit a separate report setting forth the
2-27 examiner's [observations and] findings and opinions concerning:
3-1 (1) whether the defendant is a person with mental
3-2 illness and meets the criteria for court-ordered inpatient mental
3-3 health services under Subtitle C, Title 7, Health and Safety Code;
3-4 or
3-5 (2) whether the defendant is a person with mental
3-6 retardation and meets the criteria for commitment to a residential
3-7 care facility under Subtitle D, Title 7, Health and Safety Code.
3-8 SECTION 2. Sections 3(a), (b), and (d), Article 46.03, Code
3-9 of Criminal Procedure, are amended to read as follows:
3-10 (a) If notice of intention to raise the insanity defense is
3-11 filed under Section 2 of this article, the court shall [may, on its
3-12 own motion or motion by the defendant, his counsel, or the
3-13 prosecuting attorney,] appoint disinterested experts experienced
3-14 and qualified by education and training in mental health and mental
3-15 retardation and experienced in forensic evaluation to gather
3-16 background information, to examine the defendant with regard to the
3-17 insanity defense, and to testify thereto at any trial or hearing on
3-18 this issue.
3-19 (b) The court may order any defendant to submit to
3-20 examination for the purposes described in this article, except that
3-21 the court may not issue the order until the defendant has retained
3-22 an attorney or the court has appointed an attorney to represent the
3-23 defendant. If the defendant is free on bail, the court in its
3-24 discretion may order him to submit to examination. If the
3-25 defendant fails or refuses to submit to examination, the court may
3-26 order him to custody for examination for a reasonable period not to
3-27 exceed 21 days. The court may not order a defendant to a facility
4-1 operated by the Texas Department of Mental Health and Mental
4-2 Retardation for examination without the consent of the head of that
4-3 facility or for a period exceeding 21 days. If a defendant who has
4-4 been ordered to a facility operated by the Texas Department of
4-5 Mental Health and Mental Retardation for examination remains in
4-6 such facility for a period of time exceeding 21 days, the head of
4-7 that facility shall cause the defendant to be immediately
4-8 transported to the committing court and placed in the custody of
4-9 the sheriff of the county in which the committing court is located.
4-10 That county shall reimburse the Texas Department of Mental Health
4-11 and Mental Retardation facility for the mileage and per diem
4-12 expenses of the personnel required to transport the defendant
4-13 calculated in accordance with the state travel regulations in
4-14 effect at that time.
4-15 (d) A written report of the examination shall be submitted
4-16 to the court within 30 days of the order of examination, and the
4-17 court shall furnish copies of the report to the defense counsel and
4-18 the prosecuting attorney. The report shall include each of the
4-19 matters required to be included in a written report of an
4-20 examination under Article 16.22 [a description of the procedures
4-21 used in the examination and the examiner's observations and
4-22 findings pertaining to the insanity defense]. The examiner shall
4-23 also submit a separate report setting forth the examiner's [his
4-24 observations and] findings and opinions concerning:
4-25 (1) whether the defendant is a person with mental
4-26 illness and meets the criteria for [presently mentally ill and
4-27 requires] court-ordered inpatient mental health services under
5-1 Subtitle C, Title 7, Health and Safety Code; or
5-2 (2) whether the defendant is a [mentally retarded]
5-3 person with mental retardation and meets the criteria for
5-4 commitment to a residential care facility under Subtitle D, Title
5-5 7, Health and Safety Code [as defined in the Mentally Retarded
5-6 Persons Act of 1977 (Article 5547-300, Vernon's Texas Civil
5-7 Statutes)].
5-8 SECTION 3. Article 16.22, Code of Criminal Procedure, is
5-9 amended to read as follows:
5-10 Art. 16.22. EXAMINATION AND TRANSFER OF DEFENDANT SUSPECTED
5-11 OF HAVING MENTAL ILLNESS OR MENTAL RETARDATION OR BEING INCOMPETENT
5-12 TO STAND TRIAL. (a) Not later than 72 hours after receiving
5-13 evidence or a statement that may establish reasonable cause to
5-14 believe that a defendant committed to the sheriff's custody has a
5-15 mental illness, [or] is a person with mental retardation, or is
5-16 incompetent to stand trial, the sheriff shall notify a magistrate
5-17 of that fact. A defendant's behavior or the result of a prior
5-18 evaluation indicating a need for referral for further mental health
5-19 or mental retardation assessment must be considered in determining
5-20 whether reasonable cause exists to believe the defendant has a
5-21 mental illness, [or] is a person with mental retardation, or is
5-22 incompetent to stand trial. On a determination that there is
5-23 reasonable cause to believe that the defendant has a mental
5-24 illness, [or] is a person with mental retardation, or is
5-25 incompetent to stand trial, the magistrate shall order an
5-26 examination of the defendant by a disinterested expert experienced
5-27 and qualified by education and training in mental health or mental
6-1 retardation and experienced in forensic evaluation to gather
6-2 background information and to determine whether the defendant has a
6-3 mental illness as defined by Section 571.003, Health and Safety
6-4 Code, [or] is a person with mental retardation as defined by
6-5 Section 591.003, Health and Safety Code, or is incompetent to stand
6-6 trial as determined under Article 46.02. If the defendant fails or
6-7 refuses to submit to examination, the magistrate may order the
6-8 defendant to custody for examination for a reasonable period not to
6-9 exceed 21 days. The magistrate may not order a defendant to a
6-10 facility operated by the Texas Department of Mental Health and
6-11 Mental Retardation for examination without the consent of the head
6-12 of that facility. If a defendant who has been ordered to a
6-13 facility operated by the Texas Department of Mental Health and
6-14 Mental Retardation for examination remains in the facility for a
6-15 period exceeding 21 days, the head of that facility shall cause the
6-16 defendant to be immediately transported to the committing court and
6-17 placed in the custody of the sheriff of the county in which the
6-18 committing court is located. That county shall reimburse the Texas
6-19 Department of Mental Health and Mental Retardation facility for the
6-20 mileage and per diem expenses of the personnel required to
6-21 transport the defendant calculated in accordance with the state
6-22 travel regulations in effect at the time.
6-23 (b) A written report of the examination shall be submitted
6-24 to the magistrate within 30 days of the order of examination, and
6-25 the magistrate shall furnish copies of the report to the defense
6-26 counsel and the prosecuting attorney. The report shall include:
6-27 (1) a list of the specific matters referred for
7-1 evaluation;
7-2 (2) a description of the procedures, tests, and
7-3 techniques used in the examination, including a description of the
7-4 steps taken to administer the procedures, tests, and techniques if
7-5 the defendant does not speak or read the English language;
7-6 (3) the examiner's clinical [observations and]
7-7 findings and opinions on each matter referred for evaluation,
7-8 including a specific indication of any question that could not be
7-9 answered;
7-10 (4) the sources of information and the factual bases
7-11 for the examiner's clinical findings and opinions;
7-12 (5) the reasoning used by the examiner in arriving at
7-13 the clinical findings and opinions; and
7-14 (6) a detailed description of any [pertaining to
7-15 whether the defendant is a person who has a mental illness or is a
7-16 person with mental retardation, and] recommended treatment.
7-17 (c) After the court receives the examining expert's report
7-18 relating to the defendant under Subsection (b), the court may
7-19 resume the criminal proceedings against the defendant or competency
7-20 proceedings, if required, as provided by Article 46.02 of this
7-21 code.
7-22 SECTION 4. The change in law made by this Act applies only to
7-23 a defendant charged with an offense committed on or after the
7-24 effective date of this Act. A defendant charged with an offense
7-25 committed before the effective date of this Act is covered by the
7-26 law in effect when the offense was committed, and the former law is
7-27 continued in effect for that purpose. For purposes of this
8-1 section, an offense was committed before the effective date of this
8-2 Act if any element of the offense occurred before the effective
8-3 date.
8-4 SECTION 5. This Act takes effect September 1, 2001.