SRC-JLB S.B. 1057 78(R)   BILL ANALYSIS


Senate Research Center   S.B. 1057
78R336 GWK-FBy: Duncan
Jurisprudence
3/17/2003
As Filed


DIGEST AND PURPOSE 

A 16-member task force, created by the 77th Texas Legislature in 2001,
concluded that the criminal competency statute is complex, confusing, and
difficult to use.  As proposed, S.B. 1057 rewrites the criminal competency
statute to streamline the process and ensure consistency in its
application across the state. 

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 the Code of Criminal Procedure by adding Chapter 46B,
as follows: 

CHAPTER 46B.  INCOMPETENCY TO STAND TRIAL

SUBCHAPTER A.  GENERAL PROVISIONS

Art. 46B.001.  DEFINITIONS.  Defines "department," "inpatient mental
health facility," "local mental health authority," "local mental
retardation authority," "mental health facility," "mental illness,"
"mental retardation," and "residential care facility." 

Art. 46B.002.  APPLICABILITY.  Provides that this chapter applies to a
defendant charged with a felony or with a misdemeanor punishable by
confinement. 
 
Art. 46B.003.  INCOMPETENCY; PRESUMPTIONS.  (a)  Provides that a person is
incompetent to stand trial if the person does not have certain abilities. 
 
(b)  Provides that a defendant is presumed competent to stand trial and to
be found competent to stand trial unless proved incompetent by a
preponderance of the evidence. 
 
Art. 46B.004.  RAISING ISSUE OF INCOMPETENCY TO STAND TRIAL.  (a)
Authorizes either party to suggest by motion, or the trial court to
suggest on its own motion, that the defendant may be incompetent to stand
trial.  Authorizes a motion suggesting that the defendant may be
incompetent to stand trial to be supported by affidavits setting out the
facts on which the suggestion is made. 
 
(b)  Requires the court on its own motion, if evidence suggesting the
defendant may be incompetent to stand trial comes to the attention of the
court, to suggest that the defendant may be incompetent to stand trial. 
 
(c)  Requires the court, on suggestion that the defendant may be
incompetent to stand  trial, to determine by informal inquiry whether
there is some evidence from any source that would support a finding that
the defendant may be incompetent to stand trial. 
 
(d)  Requires the court, except as provided by Article 46B.005(d), to stay
all other proceedings in the case, if the court determines there is
evidence to support a finding of incompetency. 
 
Art. 46B.005.  DETERMINING INCOMPETENCY TO STAND TRIAL.  (a)  Requires the
court to order an examination under Subchapter B to determine whether the
defendant is incompetent to stand trial, if after an informal inquiry the
court determines that evidence exists to support a finding of
incompetency. 
 
(b)  Requires the court, except as provided by Subsection (c), to hold a
hearing under Subchapter C before determining whether the defendant is
incompetent to stand trial. 
 
(c)  Provides that the court is not required to hold a hearing if certain
conditions exist. 
  
(d)  Authorizes the court, if the issue of the defendant's incompetency to
stand trial is raised after the trial begins, to determine the issue at
any time before sentencing. Requires the court, if the determination is
delayed until after the return of a verdict, to make the determination as
soon as reasonably possible after the return.  Prohibits the court from
determining the issue of incompetency, if a verdict of not guilty is
returned. 

Art. 46B.006.  APPOINTMENT OF AND REPRESENTATION BY COUNSEL.  (a) Provides
that a defendant is entitled to representation by counsel before any
court-ordered competency evaluation and during any proceeding at which it
is suggested that the defendant may be incompetent to stand trial. 

(b)  Requires the court to appoint counsel as necessary to comply with
Subsection (a), if the defendant is indigent and the court has not
appointed counsel to represent the defendant. 
 
Art. 46B.007.  ADMISSIBILITY OF STATEMENTS AND CERTAIN OTHER EVIDENCE.
Prohibits a statement made by a defendant during an examination or hearing
on the defendant's incompetency, the testimony of an expert based on that
statement, and evidence obtained as a result of that statement from being
admitted in evidence against the defendant in any criminal proceeding,
other than at certain hearings or proceedings. 

Art. 46B.008.  RULES OF EVIDENCE.  Provides that notwithstanding Rule 101,
Texas Rules of Evidence, the Texas Rules of Evidence apply to a hearing
under this chapter whether the hearing is before a jury or before the
court. 

Art. 46B.009.  TIME CREDITS.  Requires a court sentencing a person
convicted of a criminal offense to credit to the term of the person's
sentence the time the person is confined in a mental health facility or
residential care facility pending trial. 

Art. 46B.010.  MANDATORY DISMISSAL OF MISDEMEANOR CHARGES. Requires the
court, on the motion of the attorney representing the state, to dismiss
the charge, if a court commits a defendant who is charged with a
misdemeanor punishable by confinement and the defendant is not tried
before the second anniversary of the date on which the order of commitment
was entered. 

Art. 46B.011.  APPEALS.  Provides that neither the state nor the defendant
is entitled to make an interlocutory appeal relating to a determination of
incompetency under Article 46B.005. 

 Art. 46B.012.  COMPLIANCE WITH CHAPTER.  Provides that the failure of a
person to comply with this chapter does not provide a defendant with a
right to dismissal of charges. 

SUBCHAPTER B.  EXAMINATION

Art. 46B.021.  APPOINTMENT OF EXPERTS.  (a)  Authorizes the court, on a
suggestion that the defendant may be incompetent to stand trial, to
appoint one or more disinterested experts to perform certain acts. 
 
(b)  Requires the court, on a determination that evidence exists to
support a finding of incompetency to stand trial, to appoint one or more
experts to perform the duties described by Subsection (a). 

(c)  Prohibits an expert involved in the treatment of the defendant from
being appointed to examine the defendant under this article. 
 
(d)  Requires the movant or other party as directed by the court to
provide to experts appointed under this article information relevant to a
determination of the defendant's competency, including copies of the
indictment or information, any supporting documents used to establish
probable cause in the case, and previous mental health evaluation and
treatment records. 
 
(e)  Authorizes the court to appoint as experts under this chapter
qualified psychiatrists or psychologists employed by the local mental
health authority or local mental retardation authority.  Provides that the
local mental health authority or local mental retardation authority is
entitled to compensation and reimbursement as provided by Article 46B.027. 

(f)  Requires the court on timely request to provide the expert with
reasonable opportunity to examine the defendant, if a defendant wishes to
be examined by an expert of the defendant's own choice. 

Art. 46B.022.  EXPERTS:  QUALIFICATIONS.  (a)  Requires a psychiatrist or
psychologist, to qualify for appointment under this subchapter as an
expert, to meet certain requirements. 
 
(b)  Requires a psychiatrist or psychologist, in addition to meeting
qualifications required by Subsection (a) to be appointed as an expert, to
have completed six hours of required continuing education in courses in
forensic psychiatry or psychology, as appropriate, in either of the
reporting periods in the 24 months preceding the appointment. 

(c)  Authorizes a court to appoint as an expert a psychiatrist or
psychologist who does not meet the requirements of Subsections (a) and (b)
only if exigent circumstances require the court to base the appointment on
professional training or experience of the expert that directly provides
the expert with a specialized expertise to examine the defendant that
would not ordinarily be possessed by a psychiatrist or psychologist who
meets the requirements of Subsections (a) and (b). 

Art. 46B.023.  CUSTODY STATUS.  Requires the defendant to be maintained
under the same custody or status as the defendant was maintained under
immediately before the examination began during an examination under this
subchapter, except as otherwise ordered by the court. 

Art. 46B.024.  FACTORS CONSIDERED IN EXAMINATION.  Requires an expert,
during an examination under this subchapter and in any report based on
that examination, to consider,  in addition to other issues determined
relevant by the expert, certain conditions. 

Art. 46B.025.  EXPERT'S REPORT.  (a)  Requires an expert's report to the
court to state an opinion on a defendant's competency or incompetency to
stand trial or explain why the expert is unable to state such an opinion
and to also provide certain information. 

(b)  Requires the expert, if in the opinion of such expert appointed under
Article 46B.021 the defendant is incompetent to proceed, to state in the
report certain information. 

  (c)  Prohibits an expert's report from providing certain information.

(d)  Provides that Article 46B.007 governs the admissibility of a
statement described by Subsection (c)(2). 
 
Art. 46B.026.  REPORT DEADLINE.  (a)  Requires an expert examining the
defendant, except as provided by Subsection (b), to provide the report on
the defendant's competency or incompetency to stand trial to the court,
the attorney representing the state, and the attorney representing the
defendant not later than the 30th day after the date on which the expert
was ordered to examine the defendant and prepare the report. 
 
(b)  Authorizes the court, for good cause shown, to permit an expert to
complete the examination and report and provide the report to the court
and attorneys at a date later than the date required by Subsection (a). 

Art. 46B.027.  COMPENSATION OF EXPERTS; REIMBURSEMENT OF FACILITIES. (a)
Requires the county in which the indictment was returned or information
was filed, for any appointment under this chapter, to pay for services
described by Articles 46B.021(a)(1) and (2).  Requires the county to pay
the authority for the services, if those services are provided by an
expert who is an employee of the local mental health authority or local
mental retardation authority. 

(b)  Requires the county in which the indictment was returned or
information was filed to reimburse a facility that accepts a defendant for
examination under this chapter for expenses incurred that are determined
by the Texas Department of Mental Health and Mental Retardation (MHMR) to
be reasonably necessary and incidental to the proper examination of the
defendant. 

SUBCHAPTER C.  INCOMPETENCY HEARING AND TRIAL
 
Art. 46B.051.  HEARING BEFORE JUDGE OR JURY.  (a)  Requires a jury, on the
request of either party or the motion of the court, to make the
determination, if a court holds a hearing to determine whether the
defendant is incompetent to stand trial. 
 
(b)  Requires the court to make the determination of incompetency if a
jury determination is not required by Subsection (a). 
 
(c)  Requires a jury that has not been selected to determine the guilt or
innocence of the defendant to determine the issue of incompetency, if a
jury determination is required by Subsection (a). 

Art. 46B.052.  JURY VERDICT.  (a)  Requires the court, if a jury
determination of the issue of incompetency to stand trial is required by
Article 46B.051(a), to require the jury to state in its verdict whether
the defendant is incompetent to stand trial. 
 
   (b)  Requires the verdict to be concurred in by each juror.

Art. 46B.053.  PROCEDURE AFTER FINDING OF COMPETENCY.  Requires the court,
if at a hearing the court or jury determines that the defendant is
competent to stand trial, to continue the trial on the merits.  Requires
the court to continue the trial with another jury selected for that
purpose, if a jury determines that the defendant is competent and the
trial on the merits is to be held before a jury. 

Art. 46B.054.  UNCONTESTED INCOMPETENCY.  Requires the court to proceed in
the same manner as if a jury had been impaneled and had found the
defendant incompetent to stand trial, if the court finds as required by
Article 46B.005 that there is evidence to support a finding of
incompetency to stand trial and the court and each party agree that the
defendant is incompetent to stand trial. 
 
Art. 46B.055.  PROCEDURE AFTER FINDING OF INCOMPETENCY.  Requires the
court to proceed under Subchapter D, if the defendant is found incompetent
to stand trial. 

SUBCHAPTER D.  PROCEDURES ON DETERMINATION OF INCOMPETENCY

Art. 46B.071.  OPTIONS ON DETERMINATION OF INCOMPETENCY.  Requires the
court, on a determination that a defendant is incompetent to stand trial,
to perform certain tasks. 
 
Art. 46B.072.  RELEASE ON BAIL.  Authorizes the court to release the
defendant on bail or continue the defendant's release on bail, subject to
conditions reasonably related to assuring public safety and the
effectiveness of the defendant's treatment, if the court determines that a
defendant found incompetent to stand trial is not a danger to others and
may be safely treated on an outpatient basis for the purpose of attaining
competency to stand trial. 

Art. 46B.073.  COMMITMENT FOR RESTORATION TO COMPETENCY.  (a) Provides
that this article applies only to a defendant not released on bail. 
 
(b)  Requires the court to commit a defendant described by Subsection (a)
to a mental health facility or residential care facility for a period not
to exceed 120 days for further examination and treatment toward the
specific objective of attaining competency to stand trial. 

(c)  Requires the court, if the defendant is charged with an offense
listed in Article 17.032(a) or the indictment requests an affirmative
finding under Section 3g(a)(2), Article 42.12, 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 Department of Veterans Affairs hospital. 

(d)  Requires the court, if the defendant is not charged with an offense
listed in Article 17.032(a) and the indictment does not request an
affirmative finding under Section 3g(a)(2), Article 42.12, to enter an
order committing the defendant to a mental health facility or residential
care facility determined to be appropriate by the local mental health
authority or local mental retardation authority. 
 
Art. 46B.074.  COMPETENT TESTIMONY REQUIRED.  Authorizes a defendant to be
committed to a mental health facility or residential care facility under
this subchapter only on competent medical or psychiatric testimony. 

Art. 46B.075.  TRANSFER OF DEFENDANT TO FACILITY.  Requires a commitment
order issued under this subchapter to place the defendant in the custody
of the sheriff for transportation to the facility in which the defendant
is to be confined. 
  
Art. 46B.076.  COURT'S ORDER.  (a)  Requires the court, if the defendant
is found incompetent to stand trial, to send a copy of the order to the
facility to which the defendant is committed not later than the date the
defendant is committed to the facility.  Requires the court to also
provide to the facility certain copies made available to the court during
the incompetency hearing. 

(b)  Requires the court to order that the transcript of all medical
testimony received by the jury or court be promptly prepared by the court
reporter and forwarded to the proper facility. 
 
Art. 46B.077.  INDIVIDUAL TREATMENT PROGRAM.  (a)  Requires the facility
to which the defendant is committed to perform certain acts. 

(b)  Requires the facility, if the defendant is committed to an inpatient
mental health facility or to a residential care facility, to report to the
court at least once during the commitment period.  Requires the treatment
program, if the defendant is released to a treatment program not provided
by an inpatient mental health facility or a residential care facility, to
report to the court according to certain guidelines. 

Art. 46B.078.  CHARGES SUBSEQUENTLY DISMISSED.  Requires the committing
court, if the charges pending against a defendant are dismissed, to send a
copy of the order of dismissal to the sheriff of the county in which the
committing court is located and to the head of the facility in which the
defendant is held.  Requires the facility, on receipt of the copy of the
order, to discharge the defendant into the care of the sheriff for
transportation in the manner described by Article 46B.082. 
 
Art. 46B.079.  RETURN TO COMMITTING COURT.  Requires a defendant committed
under this subchapter to be returned to the committing court as soon as
practicable after the earliest of certain dates. 
 
Art. 46B.080.  NOTICE TO COMMITTING COURT.  (a)  Requires the head of a
facility to which a defendant has been committed under this subchapter,
not later than the 14th day before the date on which a commitment order is
to expire, to notify the committing court that the term of the commitment
is about to expire. 

(b)  Requires the head of the facility to which a defendant has been
committed under this subchapter to promptly notify the committing court
when the head of the facility is of a certain opinion. 
 
(c)  Authorizes the notice, if the head of the facility to which the
defendant has been committed notifies the court that the commitment order
is about to expire, to contain a request for an extension of the
commitment order for a period of 60 days and an explanation for the basis
of the request. 

Art. 46B.081.  EXTENSION OF COMMITMENT ORDER.  (a) Authorizes the court,
on the request of the head of a facility made under Article 46B.080(c), to
enter an order extending the term of the commitment order for a period of
60 days. 

(b)  Authorizes the court to enter an order under Subsection (a) only if
the court determines that, on the basis of information provided by the
head of the facility, certain conditions exist. 

(c)  Authorizes the court to grant only one extension under this article
for the term of a defendant's commitment order. 
  
Art. 46B.082.  TRANSPORTATION OF DEFENDANT.  (a)  Requires the sheriff of
the county in which the committing court is located or the sheriff's
designee, on notification from the committing court under Article 46B.078,
to transport the defendant to the committing court. 
 
(b)  Requires the head of that facility, if a defendant committed to a
maximum security unit of a facility of the department has not been
transported from the unit before the 15th day after the date on which the
court received notification under Article 46B.080(a), to cause the
defendant to be promptly transported to the committing court and placed in
the custody of the sheriff of the county in which the committing court is
located.  Requires the county in which the committing court is located to
reimburse the department for the mileage and per diem expenses of the
personnel required to transport the defendant, calculated in accordance
with rates provided in the General Appropriations Act for state employees. 
 
Art. 46B.083.  REPORT BY FACILITY HEAD.  (a)  Requires the head of the
facility, when the head of a facility to which the defendant is committed
discharges the defendant and the defendant is returned to the committing
court, to file a final report with the court stating the reason for the
discharge under Article 46B.080.  Requires the court to furnish copies of
the report to the defense counsel and the prosecuting attorney. 
 
(b)  Requires the head of the facility, if the head of the facility
believes that the defendant is a person with mental illness and meets the
criteria for court-ordered inpatient mental health services under Subtitle
C, Title 7, Health and Safety Code, to have submitted to the court a
certificate of medical examination for mental illness. Requires the head
of the facility to include in the final report a list of the types and
dosages of medications with which the defendant was treated for mental
illness while in the facility. 
 
(c)  Requires the head of the facility, if the head of the facility is of
the opinion that the defendant is a person with mental retardation, to
have submitted to the court an affidavit stating the conclusions reached
as a result of the examination. 
 
Art. 46B.084.  PROCEEDINGS ON RETURN OF DEFENDANT TO COURT.  (a) Requires
the court, on the return of a defendant to the committing court, to make a
determination with regard to the defendant's competency to stand trial.
Authorizes the court to make the determination based solely on the report
filed under Article 46B.080(b), unless any party objects in writing or in
open court to the findings of the report not later than the 15th day after
the date on which the report is served on the parties. 
 
(b)  Requires the issue, if a party objects under Subsection (a), to be
set for a hearing. Provides that the hearing is before the court, except
that on motion by the defendant, the defense counsel, the prosecuting
attorney, or the court, the hearing shall be held before a jury. 

(c)  Requires the hearing to be held within 30 days following the date of
objection unless continued for good cause. 
 
(d)  Authorizes criminal proceedings against the defendant to be resumed,
if the defendant is found competent to stand trial. 

(e)  Requires the court to proceed under Subchapter E, if the defendant is
found incompetent to stand trial and if all charges pending against the
defendant are not dismissed. 

 (f)  Requires the court to proceed under Subchapter F, if the defendant
is found incompetent to stand trial and if all charges pending against the
defendant are dismissed. 

Art. 46B.085.  RECOMMITMENT PROHIBITED.  Prohibits a defendant committed
under this subchapter from being recommitted under this subchapter in
connection with the same offense. 
 
Art. 46B.086.  COURT-ORDERED MEDICATIONS.  (a)  Provides that this article
applies only to a certain defendant. 

(b)  Requires the director of the correctional facility, if a defendant
described by Subsection (a) refuses to take psychoactive medications as
required by the defendant's continuity of care plan, to notify the court
in which the criminal proceedings are pending of that fact not later than
the end of the next business day following the refusal. Requires the court
to promptly notify the attorney representing the state and the attorney
representing the defendant of the defendant's refusal.  Authorizes the
attorney representing the state to file a written motion to compel
medication.  Authorizes the court, after notice and after a hearing that
is held as soon as practicable, to authorize the director of a
correctional facility to have the medication administered to the
defendant, by reasonable force if necessary. 
 
(c)  Authorizes the court to issue an order under this article only if the
order is supported by the testimony of two physicians, one of whom is the
physician at the correctional facility who is prescribing the medication
as a component of the defendant's continuity of care plan and another who
is not otherwise involved in proceedings against the defendant.
Authorizes the court to require either or both physicians to examine the
defendant and report on the examination to the court. 
 
(d)  Authorizes the court to issue an order under this article if the
court finds by clear and convincing evidence that certain conditions
exist. 

(e)  Prohibits a statement made by a defendant to a physician during an
examination under Subsection (c) from being admitted against the defendant
in any criminal proceeding, other than at certain hearings or proceedings. 

SUBCHAPTER E.  EXTENDED COMMITMENT: CHARGES PENDING

Art. 46B.101.  APPLICABILITY.  Provides that this subchapter applies to a
defendant against whom a court is required to proceed under Article
46B.084(e). 
 
Art. 46B.102.  COMMITMENT HEARING: MENTAL ILLNESS.  (a)  Requires the
court, if it appears to the court that the defendant may be a person with
mental illness, to hold a hearing to determine whether the defendant
should be committed to a mental health facility. 

(b)  Provides that proceedings for commitment of the defendant to a mental
health facility are governed by Title 7C, Health and Safety Code, to the
extent that Subtitle C applies and does not conflict with this chapter,
except that the criminal court shall conduct the proceedings whether or
not the criminal court is also the county court. 
 
(c)  Requires the defendant, if the court enters an order committing the
defendant to a mental health facility, to be treated in conformity with
Title 7C, Health and Safety Code, except as otherwise provided by this
chapter and released in conformity with Article 46B.107. 
 
Art. 46B.103.  COMMITMENT HEARING:  MENTAL RETARDATION.  (a)  Requires
the court, if it appears to the court that the defendant may be a person
with mental retardation, to hold a hearing to determine whether the
defendant is a person with mental retardation. 

(b)  Provides that proceedings for commitment of the defendant to a
residential care facility are governed by Title 7D, Health and Safety
Code, to the extent that Subtitle D applies and does not conflict with
this chapter, except that the criminal court shall conduct the proceedings
whether or not the criminal court is also a county court. 

(c)  Requires the defendant, if the court enters an order committing the
defendant to a residential care facility, to be treated and released
according to certain guidelines. 

  (d)  Provides that certain proceedings are conducted under this
subchapter. 

Art. 46B.104.  EXTENDED COMMITMENT PLACEMENT:  FINDING OF VIOLENCE.
Requires a defendant committed to a facility as a result of proceedings
initiated under this chapter to be committed to the maximum security unit
of any facility designated by the department if a certain condition
exists. 

Art. 46B.105.  TRANSFER FOLLOWING EXTENDED COMMITMENT PLACEMENT. (a)
Requires the defendant, not later than the 60th day after the date the
defendant arrives at the maximum security unit, to be transferred to a
certain unit, facility, or program, unless a defendant is determined to be
manifestly dangerous by an MHMR review board. 

(b)  Requires the commissioner of MHMR to appoint a review board of five
members, including one psychiatrist licensed to practice medicine in this
state and two persons who work directly with persons with mental illness
or mental retardation, to determine whether the defendant is manifestly
dangerous and, as a result of the danger the defendant presents, requires
continued placement in a maximum security unit. 

(c)  Prohibits the review board from making a determination as to the
defendant's need for treatment. 

(d)  Provides that a finding that the defendant is not manifestly
dangerous is not a medical determination that the defendant no longer
meets the criteria for involuntary civil commitment under Title 7C or 7D,
Health and Safety Code. 

(e)  Requires the matter, if the superintendent of the facility at which
the maximum security unit is located disagrees with the determination, to
be referred to the MHMR commissioner.  Requires the commissioner to decide
whether the defendant is manifestly dangerous. 

Art. 46B.106.  EXTENDED COMMITMENT PLACEMENT:  NO FINDING OF VIOLENCE.
(a)  Requires a defendant committed to a facility as a result of the
proceedings initiated under this chapter, other than a defendant described
by Article 46B.104, to be committed to a facility designated by the local
mental health authority or local mental retardation authority to serve the
catchment area in which the committing court is located. 
 
(b)  Prohibits a  facility from refusing to accept a placement ordered
under this article on the grounds that criminal charges against the
defendant are pending. 
 
Art. 46B.107.  RELEASE OF DEFENDANT AFTER COMMITMENT.  (a)  Provides that
the release from MHMR or a facility of a defendant committed under this
chapter is subject to disapproval by the committing court if the court or
the attorney representing the state has notified the head of the facility
to which the defendant has been committed that a criminal charge remains
pending against the defendant. 
 
(b)  Requires the head of the facility, if the head of the facility to
which a defendant has been committed under this chapter determines that
the defendant should be released from the facility, to notify the
committing court and the sheriff of the county from which the defendant
was committed in writing of the release not later than the 14th day before
the date on which the facility intends to release the defendant. 

(c)  Requires the head of the facility to provide with the notice a
written statement that states an opinion as to whether the defendant to be
released has attained competency to stand trial. 
 
(d)  Authorizes the court, on motion of the attorney representing the
state or on its own motion, to hold a hearing to determine whether release
is appropriate under the applicable criteria in Title 7C or 7D, Health and
Safety Code. 
 
(e)  Requires the court, if the court determines that release is not
appropriate, to enter an order directing the head of the facility to not
release the defendant. 
 
(f)  Provides that if an order is entered under Subsection (e), any
subsequent proceeding to release the defendant is subject to this article. 
 
Art. 46B.108.  REDETERMINATION OF COMPETENCY.  (a)  Authorizes the trial
court at any time to determine whether the defendant has been restored to
competency, if criminal charges against a defendant found incompetent to
stand trial have not been dismissed. 
 
(b)  Authorizes an inquiry into restoration of competency under this
subchapter to be made at the request of the head of the mental health
facility or residential care facility to which the defendant has been
committed, the defendant, or the attorney representing the state, or to be
made on the court's own motion. 
 
Art. 46B.109.  REQUEST BY HEAD OF FACILITY.  (a)  Authorizes the head of a
facility to which a defendant has been committed as a result of a finding
of incompetency to stand trial to request the court to determine that the
defendant has been restored to competency. 

(b)  Requires the head of the facility to provide with the request a
written statement that in the opinion of the head of the facility the
defendant is competent to stand trial. 

Art. 46B.110.  MOTION BY DEFENDANT OR ATTORNEY REPRESENTING STATE. (a)
Authorizes the defendant or the attorney representing the state to move
that the court determine that the defendant has been restored to
competency. 
 
(b)  Authorizes a motion for a determination of competency to be
accompanied by affidavits supporting the moving party's assertion that the
defendant is competent. 

Art. 46B.111.  APPOINTMENT OF EXAMINERS.  Authorizes the court, on the
filing of a request or motion to determine that the defendant has been
restored to competency or on the court's decision on its own motion to
inquire into restoration of competency, to appoint disinterested experts
to examine the defendant in accordance with Subchapter B. 

Art. 46B.112.  DETERMINATION OF RESTORATION WITH AGREEMENT.  Requires the
court, on the filing of a request or motion to determine that the
defendant has been restored to competency or on the court's decision on
its own motion to inquire into restoration of competency, to find the
defendant competent to stand trial and proceed in the same manner as if
the defendant had been found restored to competency at a hearing if
certain conditions exist. 

Art. 46B.113.  DETERMINATION OF RESTORATION WITHOUT AGREEMENT.  (a)
Requires the court to hold a hearing on a request by the head of a
facility to which a defendant has been committed as a result of a finding
of incompetency to stand trial to determine whether the defendant has been
restored to competency. 

(b)  Authorizes the court to hold a hearing on a motion to determine
whether the defendant has been restored to competency or on the court's
decision on its own motion to inquire into restoration of competency and
to hold a hearing if a motion and any supporting material establish good
reason to believe the defendant may have been restored to competency. 
 
(c)  Requires a jury, on the request of either party or the motion of the
court, to make the determination, if a court holds a hearing under this
article. 

(d)  Provides that if the head of a facility to which the defendant was
committed as a result of a finding of incompetency to stand trial has
provided an opinion that the defendant has regained competency, competency
is presumed at a hearing under this subchapter and continuing incompetency
must be proved by a preponderance of the evidence. 

(e)  Provides that if the head of a facility has not provided an opinion
described by Subsection (d), incompetency is presumed at a hearing under
this subchapter and the defendant's competency must be proved by a
preponderance of the evidence. 

Art. 46B.114.  TRANSPORTATION OF DEFENDANT TO COURT.  Requires an order
setting a hearing to determine whether the defendant has been restored to
competency to direct that the defendant be placed in the custody of the
sheriff of the county in which the committing court is located or the
sheriff's designee for transportation to the court. 

Art. 46B.115.  SUBSEQUENT REDETERMINATIONS OF COMPETENCY.  (a) Requires a
subsequent request or motion for a redetermination of competency filed
before the 91st day after the date of that determination, if the court has
made a determination that a defendant has not been restored to competency
under this subchapter, to perform certain acts. 

(b)  Authorizes the court to hold a hearing on a request or motion under
this article only if the court first finds reason to believe the
defendant's condition has materially changed since the prior determination
that the defendant was not restored to competency. 

Art. 46B.116.  DISPOSITION ON DETERMINATION OF COMPETENCY.  Authorizes the
proceedings on the criminal charge to proceed, if the defendant is found
competent to stand trial 

Art. 46B.117.  DISPOSITION ON DETERMINATION OF INCOMPETENCY.  (a) Requires
the court, if a defendant under order of commitment to a facility is found
to not have been restored to competency to stand trial, to remand the
defendant pursuant to that order of commitment, and order the defendant
placed in the custody of the sheriff or the sheriff's designee for
transportation back to the facility. 

(b)  Requires the court, if a defendant not under order of commitment is
found to not have been restored to competency to stand trial, to order the
defendant's custody status to remain unchanged. 

SUBCHAPTER F.  EXTENDED COMMITMENT: CHARGES DISMISSED

Art. 46B.151.  COURT DETERMINATION RELATED TO COMMITMENT.  (a) Requires
the court, if a court is required by Article 46B.084(f) to proceed under
this  subchapter, to determine whether there is evidence to support a
finding that the defendant is either a person with mental illness or a
person with mental retardation. 

(b)  Requires the court, if it appears to the court that there is evidence
to support a finding of mental illness or mental retardation, to enter an
order transferring the defendant to the appropriate court for civil
commitment proceedings and stating that all charges pending against the
defendant in that court have been dismissed.  Authorizes the court to
order the defendant in certain detainment or placement. 

(c)  Authorizes a defendant placed in an MHMR facility pending civil
hearing under this article, notwithstanding Subsection (b), to be detained
in that facility only with the consent of the head of the facility and
pursuant to an order of protective custody issued under Title 7C, Health
and Safety Code. 

(d)  Requires the court to release the defendant, if the court does not
place the defendant under Subsection (b). 

SUBCHAPTER G.  PROVISIONS APPLICABLE TO SUBCHAPTERS E AND F

Art. 46B.171.  TRANSCRIPTS; DOCUMENTATION.  Requires the court to order
the availability of certain information. 

SECTION 2.  Amends Article 16.22(c), Code of Criminal Procedure, to
authorize the court, after the court receives the examining expert's
report relating to the defendant under Subsection (b), to resume
competency proceedings, if required, as provided by Chapter 46B, rather
than Article 46.02, in addition to criminal proceedings. 

SECTION 3.  Amends Article 42.07, Code of Criminal Procedure, to make a
conforming change. 

SECTION 4.  Amends Section 11(d), Article 42.12, Code of Criminal
Procedure, to make a conforming change. 

SECTION 5.  Amends Section 3(g), Article 46.03, Code of Criminal
Procedure, to make a conforming change. 

SECTION 6.  Amends Section 55.19(b), Family Code, to make a conforming
change. 

SECTION 7.  Amends Section 55.44(b), Family Code, to make a conforming
change. 

SECTION 8.  Amends Section 571.011(b), Health and Safety Code, to make a
conforming change. 

SECTION 9.  Amends Section 574.001(e), Health and Safety Code, to make a
conforming change. 

SECTION 10.  Amends Section 574.002(b), Health and Safety Code, to make a
conforming change. 

SECTION 11.  Amends Sections 574.035(a) and (b), Health and Safety Code,
to make a conforming change. 

SECTION 12.  Amends Section 575.003, Health and Safety Code, to make a
conforming change. 

SECTION 13.  Amends Section 576.025(a), Health and Safety Code, to make a
conforming change. 

SECTION 14.  Repealer:  Article 46.02 (Incompetency to Stand Trial), Code
of Criminal Procedure. 

SECTION 15.  Makes application of this Act prospective.
 
SECTION 16.  Effective date:  January 1, 2004.