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79R3747 KEL-D
By: Duncan S.B. No. 679
A BILL TO BE ENTITLED
AN ACT
relating to the procedure for determining the incompetency of a
defendant to stand trial.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 46B.001, Code of Criminal Procedure, is
amended by adding Subdivision (9) to read as follows:
(9) "Electronic broadcast system" means a two-way
electronic communication of image and sound between the defendant
and the court and includes secure Internet videoconferencing.
SECTION 2. Article 46B.004, Code of Criminal Procedure, is
amended by amending Subsection (d) and adding Subsection (e) to
read as follows:
(d) If the court determines there is evidence to support a
finding of incompetency, the court, except as provided by
Subsection (e) and Article 46B.005(d), shall stay all other
proceedings in the case.
(e) At any time during the proceedings under this chapter
after the issue of the defendant's incompetency to stand trial is
first raised, the court on the motion of the attorney representing
the state may dismiss all charges pending against the defendant,
regardless of whether there is any evidence to support a finding of
the defendant's incompetency under Subsection (d) or whether the
court has made a finding of incompetency under this chapter. If the
court dismisses the charges against the defendant, the court may
not continue the proceedings under this chapter, except that, if
there is evidence to support a finding of the defendant's
incompetency under Subsection (d), the court may proceed under
Subchapter F. If the court does not elect to proceed under
Subchapter F, the court shall discharge the defendant.
SECTION 3. Article 46B.079, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.079. RETURN TO COMMITTING COURT. (a) A defendant
committed under this subchapter shall be returned to the committing
court as soon as practicable after the date on which the defendant's
term of commitment expires.
(b) A defendant committed under this subchapter whose term
of commitment has not yet expired shall be returned to the
committing court as soon as practicable after the 15th day
following the date on which the parties receive service on any
report filed under Article 46B.080(b) regarding the defendant's
ability to attain competency, except that, if a party objects to the
findings of the report and the issue is set for a hearing under
Article 46B.084, the defendant may not be returned to the
committing court earlier than 72 hours before the date the hearing
is scheduled [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].
SECTION 4. Article 46B.107(d), Code of Criminal Procedure,
is amended to read as follows:
(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. The court may conduct the
hearing at the facility or by means of an electronic broadcast
system.
SECTION 5. Article 46B.113(c), Code of Criminal Procedure,
is amended to read as follows:
(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 competency determination. If the competency determination
will be made by the court rather than a jury, the court may conduct
the hearing at the facility or by means of an electronic broadcast
system.
SECTION 6. Article 46B.114, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.114. TRANSPORTATION OF DEFENDANT TO COURT. If the
hearing is not conducted at the facility to which the defendant has
been committed under this chapter or conducted by means of an
electronic broadcast system as permitted by this subchapter, an
[An] order setting a hearing to determine whether the defendant has
been restored to competency shall direct that, as soon as possible
but not earlier than 72 hours before the date the hearing is
scheduled, 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. The sheriff or the
sheriff's designee may not take custody of the defendant under this
article until 72 hours before the date the hearing is scheduled.
SECTION 7. Article 46B.115, Code of Criminal Procedure, is
amended by adding Subsection (c) to read as follows:
(c) If the competency determination will be made by the
court, the court may conduct the hearing at the facility to which
the defendant has been committed under this chapter or may conduct
the hearing by means of an electronic broadcast system.
SECTION 8. Article 46B.117(a), Code of Criminal Procedure,
is amended to read as follows:
(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, if applicable, order the defendant placed in the
custody of the sheriff or the sheriff's designee for transportation
back to the facility.
SECTION 9. Article 46B.151(a), Code of Criminal Procedure,
is amended to read as follows:
(a) If a court is required by Article 46B.084(f) or
permitted by Article 46B.004(e) 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.
SECTION 10. Article 46B.085, Code of Criminal Procedure, is
repealed.
SECTION 11. (a) The change in law made by this Act in
amending Articles 46B.001, 46B.107, 46B.113, 46B.114, 46B.115, and
46B.117, Code of Criminal Procedure, applies only to a competency
hearing requested by the motion of a party or held on the motion of
the court on or after the effective date of this Act. A competency
hearing requested by the motion of a party or held on the motion of
the court before the effective date of this Act is covered by the
law in effect when the motion for a hearing was made by a party or by
the court, as applicable, and the former law is continued in effect
for that purpose.
(b) The change in law made by this Act in amending Articles
46B.004 and 46B.151, Code of Criminal Procedure, applies only to a
defendant charged with an offense committed on or after the
effective date of this Act. A defendant charged with an offense
committed before the effective date of this Act is covered by the
law in effect when the offense was committed, and the former law is
continued in effect for that purpose. For purposes of this
subsection, an offense was committed before the effective date of
this Act if any element of the offense was committed before that
date.
(c) The change in law made by this Act in repealing Article
46B.085, Code of Criminal Procedure, applies to a defendant charged
with an offense committed before, on, or after the effective date of
this Act.
SECTION 12. Notwithstanding Section 16, Chapter 35, Acts of
the 78th Legislature, Regular Session, 2003, a determination of
incompetency is covered by Chapter 46B, Code of Criminal Procedure,
for a defendant:
(1) against whom proceedings were initiated before
January 1, 2004, under former Article 46.02, Code of Criminal
Procedure; and
(2) for whom proceedings have not become final before
the effective date of this Act.
SECTION 13. This Act takes effect September 1, 2005.