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By: Duncan S.B. No. 1057
A BILL TO BE ENTITLED
AN ACT
relating to the determination of incompetency in criminal and
juvenile justice cases.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 1, Code of Criminal Procedure, is amended
by adding Chapter 46B to read as follows:
CHAPTER 46B. INCOMPETENCY TO STAND TRIAL
SUBCHAPTER A. GENERAL PROVISIONS
Art. 46B.001. DEFINITIONS. In this chapter:
(1) "Department" means the Texas Department of Mental
Health and Mental Retardation.
(2) "Inpatient mental health facility" has the meaning
assigned by Section 571.003, Health and Safety Code.
(3) "Local mental health authority" has the meaning
assigned by Section 571.003, Health and Safety Code.
(4) "Local mental retardation authority" has the
meaning assigned by Section 531.002, Health and Safety Code.
(5) "Mental health facility" has the meaning assigned
by Section 571.003, Health and Safety Code.
(6) "Mental illness" has the meaning assigned by
Section 571.003, Health and Safety Code.
(7) "Mental retardation" has the meaning assigned by
Section 591.003, Health and Safety Code.
(8) "Residential care facility" has the meaning
assigned by Section 591.003, Health and Safety Code.
Art. 46B.002. APPLICABILITY. This chapter applies to a
defendant charged with a felony or with a misdemeanor punishable by
confinement.
Art. 46B.003. INCOMPETENCY; PRESUMPTIONS. (a) A person is
incompetent to stand trial if the person does not have:
(1) sufficient present ability to consult with the
person's lawyer with a reasonable degree of rational understanding;
or
(2) a rational as well as factual understanding of the
proceedings against the person.
(b) A defendant is presumed competent to stand trial and
shall 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) Either party may suggest by motion, or the trial court may
suggest on its own motion, that the defendant may be incompetent to
stand trial. A motion suggesting that the defendant may be
incompetent to stand trial may be supported by affidavits setting
out the facts on which the suggestion is made.
(b) If evidence suggesting the defendant may be incompetent
to stand trial comes to the attention of the court, the court on its
own motion shall suggest that the defendant may be incompetent to
stand trial.
(c) On suggestion that the defendant may be incompetent to
stand trial, the court shall 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) If the court determines there is evidence to support a
finding of incompetency, the court, except as provided by Article
46B.005(d), shall stay all other proceedings in the case.
Art. 46B.005. DETERMINING INCOMPETENCY TO STAND TRIAL.
(a) If after an informal inquiry the court determines that
evidence exists to support a finding of incompetency, the court
shall order an examination under Subchapter B to determine whether
the defendant is incompetent to stand trial.
(b) Except as provided by Subsection (c), the court shall
hold a hearing under Subchapter C before determining whether the
defendant is incompetent to stand trial.
(c) The court is not required to hold a hearing if:
(1) neither party requests a jury trial on the issue of
incompetency;
(2) neither party opposes a finding of incompetency;
and
(3) the court does not, on its own motion, determine
that a hearing is necessary to determine incompetency.
(d) If the issue of the defendant's incompetency to stand
trial is raised after the trial begins, the court may determine the
issue at any time before sentencing. If the determination is
delayed until after the return of a verdict, the court shall make
the determination as soon as reasonably possible after the return.
If a verdict of not guilty is returned, the court may not determine
the issue of incompetency.
Art. 46B.006. APPOINTMENT OF AND REPRESENTATION BY COUNSEL.
(a) 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) If the defendant is indigent and the court has not
appointed counsel to represent the defendant, the court shall
appoint counsel as necessary to comply with Subsection (a).
Art. 46B.007. ADMISSIBILITY OF STATEMENTS AND CERTAIN OTHER
EVIDENCE. 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 may not be admitted in evidence against the defendant in
any criminal proceeding, other than at:
(1) a hearing on the defendant's incompetency; or
(2) any proceeding at which the defendant first
introduces into evidence a statement, testimony, or evidence
described by this section.
Art. 46B.008. RULES OF EVIDENCE. 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. A court sentencing a person
convicted of a criminal offense shall 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.
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, the court on the motion of the attorney representing the
state shall dismiss the charge.
Art. 46B.011. APPEALS. 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. 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) On a suggestion
that the defendant may be incompetent to stand trial, the court may
appoint one or more disinterested experts to:
(1) examine the defendant and report to the court on
the competency or incompetency of the defendant; and
(2) testify as to the issue of competency or
incompetency of the defendant at any trial or hearing involving
that issue.
(b) On a determination that evidence exists to support a
finding of incompetency to stand trial, the court shall appoint one
or more experts to perform the duties described by Subsection (a).
(c) An expert involved in the treatment of the defendant may
not be appointed to examine the defendant under this article.
(d) The movant or other party as directed by the court shall
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) The court may appoint as experts under this chapter
qualified psychiatrists or psychologists employed by the local
mental health authority or local mental retardation authority. The
local mental health authority or local mental retardation authority
is entitled to compensation and reimbursement as provided by
Article 46B.027.
(f) If a defendant wishes to be examined by an expert of the
defendant's own choice, the court on timely request shall provide
the expert with reasonable opportunity to examine the defendant.
Art. 46B.022. EXPERTS: QUALIFICATIONS. (a) To qualify
for appointment under this subchapter as an expert, a psychiatrist
or psychologist must:
(1) as appropriate, be a physician licensed in this
state or be a psychologist licensed in this state who has a doctoral
degree in psychology; and
(2) have the following certification or experience or
training:
(A) as appropriate, certification by:
(i) the American Board of Psychiatry and
Neurology with added or special qualifications in forensic
psychiatry; or
(ii) the American Board of Professional
Psychology in forensic psychology; or
(B) experience or training consisting of:
(i) at least 24 hours of specialized
forensic training relating to incompetency or insanity
evaluations;
(ii) for an appointment made before January
1, 2005, at least five years of experience before January 1, 2004,
in performing criminal forensic evaluations for courts; or
(iii) for an appointment made on or after
January 1, 2005, at least five years of experience before January 1,
2004, in performing criminal forensic evaluations for courts and
eight or more hours of continuing education relating to forensic
evaluations, completed in the 12 months preceding the appointment
and documented with the court.
(b) In addition to meeting qualifications required by
Subsection (a), to be appointed as an expert a psychiatrist or
psychologist must 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) A court may 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. During an examination under
this subchapter, except as otherwise ordered by the court, the
defendant shall be maintained under the same custody or status as
the defendant was maintained under immediately before the
examination began.
Art. 46B.024. FACTORS CONSIDERED IN EXAMINATION. During an
examination under this subchapter and in any report based on that
examination, an expert shall consider, in addition to other issues
determined relevant by the expert, the following:
(1) the capacity of the defendant during criminal
proceedings to:
(A) rationally understand the charges against
the defendant and the potential consequences of the pending
criminal proceedings;
(B) disclose to counsel pertinent facts, events,
and states of mind;
(C) engage in a reasoned choice of legal
strategies and options;
(D) understand the adversarial nature of
criminal proceedings;
(E) exhibit appropriate courtroom behavior; and
(F) testify;
(2) whether the defendant has a diagnosable mental
illness or is a person with mental retardation;
(3) the impact of the mental illness or mental
retardation, if existent, on the defendant's capacity to engage
with counsel in a reasonable and rational manner; and
(4) if the defendant is taking psychoactive or other
medication:
(A) whether the medication is necessary to
maintain the defendant's competency; and
(B) the effect, if any, of the medication on the
defendant's appearance, demeanor, or ability to participate in the
proceedings.
Art. 46B.025. EXPERT'S REPORT. (a) An expert's report to
the court must 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 must also:
(1) identify and address specific issues referred to
the expert for evaluation;
(2) document that the expert explained to the
defendant the purpose of the evaluation, the persons to whom a
report on the evaluation is provided, and the limits on rules of
confidentiality applying to the relationship between the expert and
the defendant;
(3) in general terms, describe procedures,
techniques, and tests used in the examination and the purpose of
each procedure, technique, or test; and
(4) state the expert's clinical observations,
findings, and opinions on each specific issue referred to the
expert by the court, and state specifically any issues on which the
expert could not provide an opinion.
(b) If in the opinion of an expert appointed under Article
46B.021 the defendant is incompetent to proceed, the expert shall
state in the report:
(1) the exact nature of the deficits resulting from
the defendant's mental illness or mental retardation, if any, that
impact the factors listed in Article 46B.024, contributing to the
defendant's incompetency; and
(2) prospective treatment options, if any,
appropriate for the defendant.
(c) An expert's report may not state the expert's opinion on
the defendant's sanity at the time of the alleged offense, if in the
opinion of the expert the defendant is incompetent to proceed.
Art. 46B.026. REPORT DEADLINE. (a) Except as provided by
Subsection (b), an expert examining the defendant shall 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) For good cause shown, the court may 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) For any appointment under this chapter, the
county in which the indictment was returned or information was
filed shall pay for services described by Articles 46B.021(a)(1)
and (2). If those services are provided by an expert who is an
employee of the local mental health authority or local mental
retardation authority, the county shall pay the authority for the
services.
(b) The county in which the indictment was returned or
information was filed shall reimburse a facility that accepts a
defendant for examination under this chapter for expenses incurred
that are determined by the department 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) If a court
holds a hearing to determine whether the defendant is incompetent
to stand trial, on the request of either party or the motion of the
court, a jury shall make the determination.
(b) The court shall make the determination of incompetency
if a jury determination is not required by Subsection (a).
(c) If a jury determination is required by Subsection (a), a
jury that has not been selected to determine the guilt or innocence
of the defendant must determine the issue of incompetency.
Art. 46B.052. JURY VERDICT. (a) If a jury determination
of the issue of incompetency to stand trial is required by Article
46B.051(a), the court shall require the jury to state in its verdict
whether the defendant is incompetent to stand trial.
(b) The verdict must be concurred in by each juror.
Art. 46B.053. PROCEDURE AFTER FINDING OF COMPETENCY. If at
a hearing the court or jury determines that the defendant is
competent to stand trial, the court shall continue the trial on the
merits. If a jury determines that the defendant is competent and
the trial on the merits is to be held before a jury, the court shall
continue the trial with another jury selected for that purpose.
Art. 46B.054. UNCONTESTED INCOMPETENCY. 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, the court
shall proceed in the same manner as if a jury had been impaneled and
had found the defendant incompetent to stand trial.
Art. 46B.055. PROCEDURE AFTER FINDING OF INCOMPETENCY. If
the defendant is found incompetent to stand trial, the court shall
proceed under Subchapter D.
SUBCHAPTER D. PROCEDURES ON DETERMINATION OF INCOMPETENCY
Art. 46B.071. OPTIONS ON DETERMINATION OF INCOMPETENCY. On
a determination that a defendant is incompetent to stand trial, the
court shall:
(1) commit the defendant to a facility under Article
46B.073; or
(2) release the defendant on bail under Article
46B.072.
Art. 46B.072. RELEASE ON BAIL. 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, the court may
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.
Art. 46B.073. COMMITMENT FOR RESTORATION TO COMPETENCY.
(a) This article applies only to a defendant not released on bail.
(b) The court shall 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) 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, the court shall 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) 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, the
court shall 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. A defendant
may 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. A
commitment order issued under this subchapter must 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) If the defendant is
found incompetent to stand trial, the court shall 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. The court
shall also provide to the facility copies of the following made
available to the court during the incompetency hearing:
(1) reports of each expert;
(2) psychiatric, psychological, or social work
reports that relate to the mental condition of the defendant;
(3) documents provided by the attorney representing
the state or the attorney representing the defendant that relate to
the defendant's current or past mental condition;
(4) copies of the indictment or information and any
supporting documents used to establish probable cause in the case;
(5) the defendant's criminal history record; and
(6) the addresses of the attorney representing the
state and the attorney representing the defendant.
(b) The court shall 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) The
facility to which the defendant is committed shall:
(1) develop an individual program of treatment;
(2) assess and evaluate whether the defendant will
obtain competency in the foreseeable future; and
(3) report to the court and to the local mental health
authority or to the local mental retardation authority on the
defendant's progress toward achieving competency.
(b) If the defendant is committed to an inpatient mental
health facility or to a residential care facility, the facility
shall report to the court at least once during the commitment
period. If the defendant is released to a treatment program not
provided by an inpatient mental health facility or a residential
care facility, the treatment program shall report to the court:
(1) not later than the 14th day after the date on which
the defendant's treatment begins; and
(2) until the defendant is no longer released to the
treatment program, at least once during each 30-day period
following the date of the report required by Subdivision (1).
Art. 46B.078. CHARGES SUBSEQUENTLY DISMISSED. If the
charges pending against a defendant are dismissed, the committing
court shall 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. On receipt of the
copy of the order, the facility shall 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. A defendant
committed under this subchapter shall be returned to the committing
court as soon as practicable after the earliest of the following
dates:
(1) the date on which the facility determines that the
defendant has attained competency;
(2) the date on which the facility determines that the
defendant will not attain competency in the foreseeable future; or
(3) the date on which the term of commitment expires.
Art. 46B.080. NOTICE TO COMMITTING COURT. (a) 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, shall notify the committing court
that the term of the commitment is about to expire.
(b) The head of the facility to which a defendant has been
committed under this subchapter shall promptly notify the
committing court when the head of the facility is of the opinion
that:
(1) the defendant has attained competency to stand
trial; or
(2) the defendant will not attain competency in the
foreseeable future.
(c) If the head of the facility to which the defendant has
been committed notifies the court that the commitment order is
about to expire, the notice may 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) On the
request of the head of a facility made under Article 46B.080(c), the
court may enter an order extending the term of the commitment order
for a period of 60 days.
(b) The court may enter an order under Subsection (a) only
if the court determines that, on the basis of information provided
by the head of the facility:
(1) the defendant has not attained competency; and
(2) an extension of the term of the commitment order
will likely enable the facility to restore the defendant to
competency.
(c) The court may grant only one extension under this
article for the term of a defendant's commitment order.
Art. 46B.082. TRANSPORTATION OF DEFENDANT. (a) On
notification from the committing court under Article 46B.078, the
sheriff of the county in which the committing court is located or
the sheriff's designee shall transport the defendant to the
committing court.
(b) 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), the head of that facility
shall 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. The county in
which the committing court is located shall 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) When the head
of a facility to which the defendant is committed discharges the
defendant and the defendant is returned to the committing court,
the head of the facility shall file a final report with the court
stating the reason for the discharge under Article 46B.080. The
court shall furnish copies of the report to the defense counsel and
the prosecuting attorney.
(b) 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, the head of the facility shall have
submitted to the court a certificate of medical examination for
mental illness. The head of the facility shall 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) If the head of the facility is of the opinion that the
defendant is a person with mental retardation, the head of the
facility shall 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) On the return of a defendant to the committing court, the court
shall make a determination with regard to the defendant's
competency to stand trial. The court may 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) If a party objects under Subsection (a), the issue shall
be set for a hearing. 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) The hearing shall be held within 30 days following the
date of objection unless continued for good cause.
(d) If the defendant is found competent to stand trial,
criminal proceedings against the defendant may be resumed.
(e) If the defendant is found incompetent to stand trial and
if all charges pending against the defendant are not dismissed, the
court shall proceed under Subchapter E.
(f) If the defendant is found incompetent to stand trial and
if all charges pending against the defendant are dismissed, the
court shall proceed under Subchapter F.
Art. 46B.085. RECOMMITMENT PROHIBITED. A defendant
committed under this subchapter may not be recommitted under this
subchapter in connection with the same offense.
Art. 46B.086. COURT-ORDERED MEDICATIONS. (a) This
article applies only to a defendant:
(1) who after having been determined under this
chapter to be incompetent to stand trial is subsequently determined
to be competent to stand trial; and
(2) for whom a continuity of care plan has been
prepared by a facility that requires the defendant to take
psychoactive medications.
(b) If a defendant described by Subsection (a) refuses to
take psychoactive medications as required by the defendant's
continuity of care plan, the director of the correctional facility
shall 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. The court shall promptly notify the
attorney representing the state and the attorney representing the
defendant of the defendant's refusal. The attorney representing
the state may file a written motion to compel medication. The
court, after notice and after a hearing that is held as soon as
practicable, may authorize the director of a correctional facility
to have the medication administered to the defendant, by reasonable
force if necessary.
(c) The court may 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. The court may require either or
both physicians to examine the defendant and report on the
examination to the court.
(d) The court may issue an order under this article if the
court finds by clear and convincing evidence that:
(1) the prescribed medication is medically
appropriate, is in the best medical interest of the defendant, and
does not present side effects that cause harm to the defendant that
is greater than the medical benefit to the defendant;
(2) the state has a clear and compelling interest in
the defendant maintaining competency to stand trial;
(3) no other less invasive means of maintaining the
defendant's competency exists; and
(4) the prescribed medication will not unduly
prejudice the defendant's rights or use of defensive theories at
trial.
(e) A statement made by a defendant to a physician during an
examination under Subsection (c) may not be admitted against the
defendant in any criminal proceeding, other than at:
(1) a hearing on the defendant's incompetency; or
(2) any proceeding at which the defendant first
introduces into evidence the contents of the statement.
SUBCHAPTER E. EXTENDED COMMITMENT: CHARGES PENDING
Art. 46B.101. APPLICABILITY. 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) If
it appears to the court that the defendant may be a person with
mental illness, the court shall hold a hearing to determine whether
the defendant should be committed to a mental health facility.
(b) Proceedings for commitment of the defendant to a mental
health facility are governed by Subtitle C, Title 7, 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) If the court enters an order committing the defendant to
a mental health facility, the defendant shall be:
(1) treated in conformity with Subtitle C, Title 7,
Health and Safety Code, except as otherwise provided by this
chapter; and
(2) released in conformity with Article 46B.107.
Art. 46B.103. COMMITMENT HEARING: MENTAL RETARDATION.
(a) If it appears to the court that the defendant may be a person
with mental retardation, the court shall hold a hearing to
determine whether the defendant is a person with mental
retardation.
(b) Proceedings for commitment of the defendant to a
residential care facility are governed by Subtitle D, Title 7,
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) If the court enters an order committing the defendant to
a residential care facility, the defendant shall be:
(1) treated and released in accordance with Subtitle
D, Title 7, Health and Safety Code, except as otherwise provided by
this chapter; and
(2) released in conformity with Article 46B.107.
(d) In the proceedings conducted under this subchapter:
(1) an application for court-ordered temporary or
extended mental health services or to have the defendant declared a
person with mental retardation may not be required;
(2) the provisions of Subtitles C and D, Title 7,
Health and Safety Code, relating to notice of hearing do not apply;
and
(3) appeals from the criminal court proceedings are to
the court of appeals as in the proceedings for court-ordered
inpatient mental health services under Subtitle C, Title 7, Health
and Safety Code, or for commitment to a residential care facility
under Subtitle D, Title 7, Health and Safety Code.
Art. 46B.104. EXTENDED COMMITMENT PLACEMENT: FINDING OF
VIOLENCE. A defendant committed to a facility as a result of
proceedings initiated under this chapter shall be committed to the
maximum security unit of any facility designated by the department
if:
(1) the defendant is charged with an offense listed in
Article 17.032(a); or
(2) the indictment charging the offense requests an
affirmative finding under Section 3g(a)(2), Article 42.12.
Art. 46B.105. TRANSFER FOLLOWING EXTENDED COMMITMENT
PLACEMENT. (a) Unless a defendant is determined to be manifestly
dangerous by a department review board, not later than the 60th day
after the date the defendant arrives at the maximum security unit,
the defendant shall be transferred to:
(1) a unit of an inpatient mental health facility
other than a maximum security unit;
(2) a residential care facility; or
(3) a program designated by a local mental health
authority or a local mental retardation authority.
(b) The commissioner of mental health and mental
retardation shall 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) The review board may not make a determination as to the
defendant's need for treatment.
(d) 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 Subtitle C or
D, Title 7, Health and Safety Code.
(e) If the superintendent of the facility at which the
maximum security unit is located disagrees with the determination,
the matter shall be referred to the commissioner of mental health
and mental retardation. The commissioner shall decide whether the
defendant is manifestly dangerous.
Art. 46B.106. EXTENDED COMMITMENT PLACEMENT: NO FINDING OF
VIOLENCE. (a) 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, shall 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) A facility may not refuse 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) The release from the department 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) 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, the head of the facility shall 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) The head of the facility shall 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) The court may, on motion of the attorney representing
the state or on its own motion, hold a hearing to determine whether
release is appropriate under the applicable criteria in Subtitle C
or D, Title 7, Health and Safety Code.
(e) If the court determines that release is not appropriate,
the court shall enter an order directing the head of the facility to
not release the defendant.
(f) 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) If
criminal charges against a defendant found incompetent to stand
trial have not been dismissed, the trial court at any time may
determine whether the defendant has been restored to competency.
(b) An inquiry into restoration of competency under this
subchapter may 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 may be made on the court's own motion.
Art. 46B.109. REQUEST BY HEAD OF FACILITY. (a) The head of
a facility to which a defendant has been committed as a result of a
finding of incompetency to stand trial may request the court to
determine that the defendant has been restored to competency.
(b) The head of the facility shall 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) The defendant or the attorney representing the state
may move that the court determine that the defendant has been
restored to competency.
(b) A motion for a determination of competency may be
accompanied by affidavits supporting the moving party's assertion
that the defendant is competent.
Art. 46B.111. APPOINTMENT OF EXAMINERS. 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, the court may appoint
disinterested experts to examine the defendant in accordance with
Subchapter B.
Art. 46B.112. DETERMINATION OF RESTORATION WITH AGREEMENT.
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, the court
shall 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:
(1) both parties agree that the defendant is competent
to stand trial; and
(2) the court concurs.
Art. 46B.113. DETERMINATION OF RESTORATION WITHOUT
AGREEMENT. (a) The court shall 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) The court may 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 shall hold a hearing if a motion and any supporting
material establish good reason to believe the defendant may have
been restored to competency.
(c) If a court holds a hearing under this article, on the
request of either party or the motion of the court a jury shall make
the determination.
(d) 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) 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. An
order setting a hearing to determine whether the defendant has been
restored to competency shall 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) If the court has made a determination that a defendant has not
been restored to competency under this subchapter, a subsequent
request or motion for a redetermination of competency filed before
the 91st day after the date of that determination must:
(1) explain why the person making the request or
motion believes another inquiry into restoration is appropriate;
and
(2) provide support for the belief.
(b) The court may 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.
If the defendant is found competent to stand trial, the proceedings
on the criminal charge may proceed.
Art. 46B.117. DISPOSITION ON DETERMINATION OF
INCOMPETENCY. (a) If a defendant under order of commitment to a
facility is found to not have been restored to competency to stand
trial, the court shall 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) If a defendant not under order of commitment is found to
not have been restored to competency to stand trial, the court shall
order the defendant's custody status to remain unchanged.
SUBCHAPTER F. EXTENDED COMMITMENT: CHARGES DISMISSED
Art. 46B.151. COURT DETERMINATION RELATED TO COMMITMENT.
(a) If a court is required by Article 46B.084(f) to proceed under
this subchapter, the court shall 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) If it appears to the court that there is evidence to
support a finding of mental illness or mental retardation, the
court shall 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. The court may order the defendant:
(1) detained in jail or any other suitable place
pending the prompt initiation and prosecution by the attorney for
the state or other person designated by the court of appropriate
civil proceedings to determine whether the defendant will be
committed to a mental health facility or residential care facility;
or
(2) placed in the care of a responsible person on
satisfactory security being given for the defendant's proper care
and protection.
(c) Notwithstanding Subsection (b), a defendant placed in a
facility of the department pending civil hearing under this article
may 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 Subtitle C, Title 7, Health and Safety Code.
(d) If the court does not detain or place the defendant
under Subsection (b), the court shall release the defendant.
SUBCHAPTER G. PROVISIONS APPLICABLE TO SUBCHAPTERS E AND F
Art. 46B.171. TRANSCRIPTS; DOCUMENTATION. The court shall
order that:
(1) a transcript of all medical testimony received in
both the criminal proceedings and the civil commitment proceedings
under Subchapter E or F be prepared as soon as possible by the court
reporters; and
(2) copies of documents listed in Article 46B.076
accompany the defendant to the mental health facility or
residential care facility.
SECTION 2. Subsections (b) and (c), Article 16.22, Code of
Criminal Procedure, is amended to read as follows:
(b) A written report of the examination shall be submitted
to the magistrate within 30 days of the order of examination, and
the magistrate shall furnish copies of the report to the defense
counsel and the prosecuting attorney. The report shall include a
description of the procedures used in the examination and[,] the
examiner's observations and findings pertaining to:
(1) whether the defendant is a person who has a mental
illness or is a person with mental retardation;
(2) [and] whether there is clinical evidence to
support a belief that the defendant may be incompetent [is
competent] to stand trial and should undergo a complete competency
examination under Subchapter B, Chapter 46B;[,] and
(3) recommended treatment.
(c) After the court receives the examining expert's report
relating to the defendant under Subsection (b), the court may
resume:
(1) criminal proceedings against the defendant,
including proceedings related to the defendant's release on
personal bond under Article 17.032; or
(2) competency proceedings, if required, as provided
by Chapter 46B [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 3. Article 42.07, Code of Criminal Procedure, is
amended to read as follows:
Art. 42.07. REASONS TO PREVENT SENTENCE. Before
pronouncing sentence, the defendant shall be asked whether he has
anything to say why the sentence should not be pronounced against
him. The only reasons which can be shown, on account of which
sentence cannot be pronounced, are:
1. That the defendant has received a pardon from the
proper authority, on the presentation of which, legally
authenticated, he shall be discharged.
2. That the defendant is incompetent to stand trial;
and if evidence be shown to support a finding of incompetency to
stand trial, no sentence shall be pronounced, and the court shall
proceed under Chapter 46B [Article 46.02 of this code]; and
3. When a person who has been convicted escapes after
conviction and before sentence and an individual supposed to be the
same has been arrested he may before sentence is pronounced, deny
that he is the person convicted, and an issue be accordingly tried
before a jury, or before the court if a jury is waived, as to his
identity.
SECTION 4. Subsection (d), Section 11, Article 42.12, Code
of Criminal Procedure, is amended to read as follows:
(d) If the judge places a defendant on community supervision
and the defendant is determined to have a mental illness or be a
person with mental retardation by an examining expert under Article
16.22 or Chapter 46B [Section 3, Article 46.02, of this code] or in
a psychological evaluation conducted under Section 9(i) of this
article, the judge may require the defendant as a condition of
community supervision to submit to outpatient or inpatient mental
health or mental retardation treatment if the:
(1) defendant's:
(A) mental impairment is chronic in nature; or
(B) ability to function independently will
continue to deteriorate if the defendant does not receive mental
health or mental retardation services; and
(2) judge determines, in consultation with a local
mental health or mental retardation services provider, that
appropriate mental health or mental retardation services for the
defendant are available through the Texas Department of Mental
Health and Mental Retardation under Section 534.053, Health and
Safety Code, or through another mental health or mental retardation
services provider.
SECTION 5. Subsection (g), Section 3, Article 46.03, Code
of Criminal Procedure, is amended to read as follows:
(g) The experts appointed under this section to examine the
defendant with regard to the insanity defense also may be appointed
by the court to examine the defendant with regard to his competency
to stand trial pursuant to Chapter 46B [Section 3 of Article 46.02
of this code], provided that separate written reports concerning
the defendant's competency to stand trial and the insanity defense
shall be filed with the court.
SECTION 6. Subsection (a), Section 51.20, Family Code, is
amended to read as follows:
(a) At any stage of the proceedings under this title, the
juvenile court may order a child who is referred to the juvenile
court or who is alleged by a petition or found to have engaged in
delinquent conduct or conduct indicating a need for supervision to
be examined by a disinterested [the local mental health or mental
retardation authority or another appropriate] expert, including a
physician, psychiatrist, or psychologist, qualified by education
and clinical training in mental health or mental retardation and
experienced in forensic evaluation, to determine whether the child
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. If the examination is to
include a determination of the child's fitness to proceed, an
expert may be appointed to conduct the examination only if the
expert is qualified under Subchapter B, Chapter 46B, Code of
Criminal Procedure, to examine a defendant in a criminal case, and
the examination and the report resulting from an examination under
this subsection must comply with the requirements under Subchapter
B, Chapter 46B, Code of Criminal Procedure, for the examination and
resulting report of a defendant in a criminal case.
SECTION 7. Subsection (b), Section 55.19, Family Code, is
amended to read as follows:
(b) The juvenile court shall send notification of the
transfer of a child under Subsection (a) to the inpatient mental
health facility. The criminal court shall, within 90 days of the
transfer, institute proceedings under Chapter 46B [Article 46.02],
Code of Criminal Procedure. If those or any subsequent proceedings
result in a determination that the defendant is competent to stand
trial, the defendant may not receive a punishment for the
delinquent conduct described by Subsection (a)(2) that results in
confinement for a period longer than the maximum period of
confinement the defendant could have received if the defendant had
been adjudicated for the delinquent conduct while still a child and
within the jurisdiction of the juvenile court.
SECTION 8. Subsection (b), Section 55.44, Family Code, is
amended to read as follows:
(b) The juvenile court shall send notification of the
transfer of a child under Subsection (a) to the facility. The
criminal court shall, before the 91st day after the date of the
transfer, institute proceedings under Chapter 46B [Article 46.02],
Code of Criminal Procedure. If those or any subsequent proceedings
result in a determination that the defendant is competent to stand
trial, the defendant may not receive a punishment for the
delinquent conduct described by Subsection (a)(2) that results in
confinement for a period longer than the maximum period of
confinement the defendant could have received if the defendant had
been adjudicated for the delinquent conduct while still a child and
within the jurisdiction of the juvenile court.
SECTION 9. Subsection (b), Section 571.011, Health and
Safety Code, is amended to read as follows:
(b) The provisions in this subtitle relating to the
discharge, furlough, or transfer of a patient do not apply to a
person charged with a criminal offense who is admitted to a mental
health facility under Subchapter D or E, Chapter 46B [Section 5,
Article 46.02], Code of Criminal Procedure.
SECTION 10. Subsection (e), Section 574.001, Health and
Safety Code, is amended to read as follows:
(e) An order transferring a criminal defendant against whom
all charges have been dismissed to the appropriate court for a
hearing on court-ordered mental health services in accordance with
Subchapter F, Chapter 46B [Section 7, Article 46.02], Code of
Criminal Procedure, serves as an application under this section.
The order must state that all charges have been dismissed.
SECTION 11. Subsection (b), Section 574.002, Health and
Safety Code, is amended to read as follows:
(b) The application must state whether the application is
for temporary or extended mental health services. An application
for extended mental health services must state that the person has
received court-ordered inpatient mental health services under this
subtitle or under Subchapter D or E, Chapter 46B [Section 5, Article
46.02], Code of Criminal Procedure, for at least 60 consecutive
days during the preceding 12 months.
SECTION 12. Subsections (a) and (b), Section 574.035,
Health and Safety Code, are amended to read as follows:
(a) The judge may order a proposed patient to receive
court-ordered extended inpatient mental health services only if the
jury, or the judge if the right to a jury is waived, finds, from
clear and convincing evidence, that:
(1) the proposed patient is mentally ill;
(2) as a result of that mental illness the proposed
patient:
(A) is likely to cause serious harm to himself;
(B) is likely to cause serious harm to others; or
(C) is:
(i) suffering severe and abnormal mental,
emotional, or physical distress;
(ii) experiencing substantial mental or
physical deterioration of the proposed patient's ability to
function independently, which is exhibited by the proposed
patient's inability, except for reasons of indigence, to provide
for the proposed patient's basic needs, including food, clothing,
health, or safety; and
(iii) unable to make a rational and informed
decision as to whether or not to submit to treatment;
(3) the proposed patient's condition is expected to
continue for more than 90 days; and
(4) the proposed patient has received court-ordered
inpatient mental health services under this subtitle or under
Chapter 46B [Article 46.02], Code of Criminal Procedure, for at
least 60 consecutive days during the preceding 12 months.
(b) The judge may order a proposed patient to receive
court-ordered extended outpatient mental health services only if:
(1) the judge finds that appropriate mental health
services are available to the patient; and
(2) the jury, or the judge if the right to a jury is
waived, finds from clear and convincing evidence that:
(A) the proposed patient is mentally ill;
(B) the nature of the mental illness is severe
and persistent;
(C) as a result of the mental illness, the
proposed patient will, if not treated, continue to:
(i) suffer severe and abnormal mental,
emotional, or physical distress; and
(ii) experience deterioration of the
ability to function independently to the extent that the proposed
patient will be unable to live safely in the community without
court-ordered outpatient mental health services;
(D) the proposed patient has an inability to
participate in outpatient treatment services effectively and
voluntarily, demonstrated by:
(i) any of the proposed patient's actions
occurring within the two-year period which immediately precedes the
hearing; or
(ii) specific characteristics of the
proposed patient's clinical condition that make impossible a
rational and informed decision whether to submit to voluntary
outpatient treatment;
(E) the proposed patient's condition is expected
to continue for more than 90 days; and
(F) the proposed patient has received
court-ordered inpatient mental health services under this subtitle
or under Subchapter D or E, Chapter 46B [Section 5, Article 46.02],
Code of Criminal Procedure, for at least 60 consecutive days during
the preceding 12 months.
SECTION 13. Section 575.003, Health and Safety Code, is
amended to read as follows:
Sec. 575.003. ADMISSION OF ALCOHOLICS AND PERSONS CHARGED
WITH CRIMINAL OFFENSE. This subtitle does not affect the admission
to a state mental health facility of:
(1) an alcoholic admitted under Chapter 462; or
(2) a person charged with a criminal offense admitted
under Subchapter D or E, Chapter 46B [Section 5, Article 46.02],
Code of Criminal Procedure.
SECTION 14. Subsection (a), Section 576.025, Health and
Safety Code, is amended to read as follows:
(a) A person may not administer a psychoactive medication to
a patient receiving voluntary or involuntary mental health services
who refuses the administration unless:
(1) the patient is having a medication-related
emergency;
(2) the patient is younger than 16 years of age and the
patient's parent, managing conservator, or guardian consents to the
administration on behalf of the patient;
(3) the refusing patient's representative authorized
by law to consent on behalf of the patient has consented to the
administration;
(4) the administration of the medication regardless of
the patient's refusal is authorized by an order issued under
Section 574.106; or
(5) the patient is receiving court-ordered mental
health services authorized by an order issued under:
(A) Chapter 46B [Article 46.02] or Article 46.03,
Code of Criminal Procedure; or
(B) Chapter 55, Family Code.
SECTION 15. Article 46.02, Code of Criminal Procedure, is
repealed.
SECTION 16. The change in law made by this Act applies only
to a defendant against whom proceedings have not been initiated
under Article 46.02, Code of Criminal Procedure, before the
effective date of this Act. The determination of incompetency for a
defendant against whom proceedings have been initiated under
Article 46.02, Code of Criminal Procedure, before the effective
date of this Act is covered by the law in effect when the
proceedings were initiated, and the former law is continued in
effect for this purpose.
SECTION 17. This Act takes effect January 1, 2004.