S.B. No. 837
AN ACT
relating to the insanity defense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 46.03, Code of Criminal Procedure, is
repealed.
SECTION 2. Title 1, Code of Criminal Procedure, is amended
by adding Chapter 46C to read as follows:
CHAPTER 46C. INSANITY DEFENSE
SUBCHAPTER A. GENERAL PROVISIONS
Art. 46C.001. DEFINITIONS. In this chapter:
(1) "Commissioner" means the commissioner of state
health services.
(2) "Department" means the Department of State Health
Services.
(3) "Mental illness" has the meaning assigned by
Section 571.003, Health and Safety Code.
(4) "Mental retardation" has the meaning assigned by
Section 591.003, Health and Safety Code.
(5) "Residential care facility" has the meaning
assigned by Section 591.003, Health and Safety Code.
Art. 46C.002. MAXIMUM PERIOD OF COMMITMENT DETERMINED BY
MAXIMUM TERM FOR OFFENSE. (a) A person acquitted by reason of
insanity may not be committed to a mental hospital or other
inpatient or residential care facility or ordered to receive
outpatient or community-based treatment and supervision under
Subchapter F for a cumulative period that exceeds the maximum term
provided by law for the offense for which the acquitted person was
tried.
(b) On expiration of that maximum term, the acquitted person
may be further confined in a mental hospital or other inpatient or
residential care facility or ordered to receive outpatient or
community-based treatment and supervision only under civil
commitment proceedings.
[Articles 46C.003-46C.050 reserved for expansion]
SUBCHAPTER B. RAISING THE INSANITY DEFENSE
Art. 46C.051. NOTICE OF INTENT TO RAISE INSANITY DEFENSE.
(a) A defendant planning to offer evidence of the insanity defense
must file with the court a notice of the defendant's intention to
offer that evidence.
(b) The notice must:
(1) contain a certification that a copy of the notice
has been served on the attorney representing the state; and
(2) be filed at least 20 days before the date the case
is set for trial, except as described by Subsection (c).
(c) If before the 20-day period the court sets a pretrial
hearing, the defendant shall give notice at the hearing.
Art. 46C.052. EFFECT OF FAILURE TO GIVE NOTICE. Unless
notice is timely filed under Article 46C.051, evidence on the
insanity defense is not admissible unless the court finds that good
cause exists for failure to give notice.
[Articles 46C.053-46C.100 reserved for expansion]
SUBCHAPTER C. COURT-ORDERED EXAMINATION AND REPORT
Art. 46C.101. APPOINTMENT OF EXPERTS. (a) If notice of
intention to raise the insanity defense is filed under Article
46C.051, the court may, on its own motion or motion by the
defendant, the defendant's counsel, or the attorney representing
the state, appoint one or more disinterested experts to:
(1) examine the defendant with regard to the insanity
defense; and
(2) testify as to the issue of insanity at any trial or
hearing involving that issue.
(b) The court shall advise an expert appointed under this
article of the facts and circumstances of the offense with which the
defendant is charged and the elements of the insanity defense.
Art. 46C.102. EXPERTS: QUALIFICATIONS. (a) The court may
appoint qualified psychiatrists or psychologists as experts under
this chapter. 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) at least five years of experience in
performing criminal forensic evaluations for courts; and
(iii) 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 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. 46C.103. COMPETENCY TO STAND TRIAL: CONCURRENT
APPOINTMENT. (a) An expert appointed under this subchapter to
examine the defendant with regard to the insanity defense also may
be appointed by the court to examine the defendant with regard to
the defendant's competency to stand trial under Chapter 46B, if the
expert files with the court separate written reports concerning the
defendant's competency to stand trial and the insanity defense.
(b) Notwithstanding Subsection (a), an expert may not
examine the defendant for purposes of determining the defendant's
sanity and may not file a report regarding the defendant's sanity if
in the opinion of the expert the defendant is incompetent to
proceed.
Art. 46C.104. ORDER COMPELLING DEFENDANT TO SUBMIT TO
EXAMINATION. (a) For the purposes described by this chapter, the
court may order any defendant to submit to examination, including a
defendant who is free on bail. If the defendant fails or refuses to
submit to examination, the court may order the defendant to custody
for examination for a reasonable period not to exceed 21 days.
Custody ordered by the court under this subsection may include
custody at a facility operated by the department.
(b) If a defendant who has been ordered to a facility
operated by the department for examination remains in the facility
for a period that exceeds 21 days, the head of that facility shall
cause the defendant to be immediately transported to the committing
court and placed in the custody of the sheriff of the county in
which the committing court is located. That county shall reimburse
the facility for the mileage and per diem expenses of the personnel
required to transport the defendant, calculated in accordance with
the state travel rules in effect at that time.
(c) The court may not order a defendant to a facility
operated by the department for examination without the consent of
the head of that facility.
Art. 46C.105. REPORTS SUBMITTED BY EXPERTS. (a) A written
report of the examination shall be submitted to the court not later
than the 30th day after the date of the order of examination. The
court shall provide copies of the report to the defense counsel and
the attorney representing the state.
(b) The report must include a description of the procedures
used in the examination and the examiner's observations and
findings pertaining to the insanity defense.
(c) The examiner shall submit a separate report stating the
examiner's observations and findings concerning:
(1) whether the defendant is presently a person with a
mental illness and requires court-ordered mental health services
under Subtitle C, Title 7, Health and Safety Code; or
(2) whether the defendant is presently a person with
mental retardation.
Art. 46C.106. COMPENSATION OF EXPERTS. (a) The appointed
experts shall be paid by the county in which the indictment was
returned or information was filed.
(b) The county in which the indictment was returned or
information was filed shall reimburse a facility operated by the
department that accepts a defendant for examination under this
subchapter for expenses incurred that are determined by the
department to be reasonably necessary and incidental to the proper
examination of the defendant.
Art. 46C.107. EXAMINATION BY EXPERT OF DEFENDANT'S CHOICE.
If a defendant wishes to be examined by an expert of the defendant's
own choice, the court on timely request shall provide the examiner
with reasonable opportunity to examine the defendant.
[Articles 46C.108-46C.150 reserved for expansion]
SUBCHAPTER D. DETERMINATION OF ISSUE OF DEFENDANT'S SANITY
Art. 46C.151. DETERMINATION OF SANITY ISSUE BY JURY.
(a) In a case tried to a jury, the issue of the defendant's sanity
shall be submitted to the jury only if the issue is supported by
competent evidence. The jury shall determine the issue.
(b) If the issue of the defendant's sanity is submitted to
the jury, the jury shall determine and specify in the verdict
whether the defendant is guilty, not guilty, or not guilty by reason
of insanity.
Art. 46C.152. DETERMINATION OF SANITY ISSUE BY JUDGE.
(a) If a jury trial is waived and if the issue is supported by
competent evidence, the judge as trier of fact shall determine the
issue of the defendant's sanity.
(b) The parties may, with the consent of the judge, agree to
have the judge determine the issue of the defendant's sanity on the
basis of introduced or stipulated competent evidence, or both.
(c) If the judge determines the issue of the defendant's
sanity, the judge shall enter a finding of guilty, not guilty, or
not guilty by reason of insanity.
Art. 46C.153. GENERAL PROVISIONS RELATING TO DETERMINATION
OF SANITY ISSUE BY JUDGE OR JURY. (a) The judge or jury shall
determine that a defendant is not guilty by reason of insanity if:
(1) the prosecution has established beyond a
reasonable doubt that the alleged conduct constituting the offense
was committed; and
(2) the defense has established by a preponderance of
the evidence that the defendant was insane at the time of the
alleged conduct.
(b) The parties may, with the consent of the judge, agree to
both:
(1) dismissal of the indictment or information on the
ground that the defendant was insane; and
(2) entry of a judgment of dismissal due to the
defendant's insanity.
(c) An entry of judgment under Subsection (b)(2) has the
same effect as a judgment stating that the defendant has been found
not guilty by reason of insanity.
Art. 46C.154. INFORMING JURY REGARDING CONSEQUENCES OF
ACQUITTAL. The court, the attorney representing the state, or the
attorney for the defendant may not inform a juror or a prospective
juror of the consequences to the defendant if a verdict of not
guilty by reason of insanity is returned.
Art. 46C.155. FINDING OF NOT GUILTY BY REASON OF INSANITY
CONSIDERED ACQUITTAL. (a) Except as provided by Subsection (b), a
defendant who is found not guilty by reason of insanity stands
acquitted of the offense charged and may not be considered a person
charged with an offense.
(b) A defendant who is found not guilty by reason of
insanity is not considered to be acquitted for purposes of Chapter
55.
Art. 46C.156. JUDGMENT. (a) In each case in which the
insanity defense is raised, the judgment must reflect whether the
defendant was found guilty, not guilty, or not guilty by reason of
insanity.
(b) If the defendant was found not guilty by reason of
insanity, the judgment must specify the offense of which the
defendant was found not guilty.
(c) If the defendant was found not guilty by reason of
insanity, the judgment must reflect the finding made under Article
46C.157.
Art. 46C.157. DETERMINATION REGARDING DANGEROUS CONDUCT OF
ACQUITTED PERSON. If a defendant is found not guilty by reason of
insanity, the court immediately shall determine whether the offense
of which the person was acquitted involved conduct that:
(1) caused serious bodily injury to another person;
(2) placed another person in imminent danger of
serious bodily injury; or
(3) consisted of a threat of serious bodily injury to
another person through the use of a deadly weapon.
Art. 46C.158. CONTINUING JURISDICTION OF DANGEROUS
ACQUITTED PERSON. If the court finds that the offense of which the
person was acquitted involved conduct that caused serious bodily
injury to another person, placed another person in imminent danger
of serious bodily injury, or consisted of a threat of serious bodily
injury to another person through the use of a deadly weapon, the
court retains jurisdiction over the acquitted person until either:
(1) the court discharges the person and terminates its
jurisdiction under Article 46C.268; or
(2) the cumulative total period of
institutionalization and outpatient or community-based treatment
and supervision under the court's jurisdiction equals the maximum
term provided by law for the offense of which the person was
acquitted by reason of insanity and the court's jurisdiction is
automatically terminated under Article 46C.269.
Art. 46C.159. PROCEEDINGS REGARDING NONDANGEROUS ACQUITTED
PERSON. If the court finds that the offense of which the person was
acquitted did not involve conduct that caused serious bodily injury
to another person, placed another person in imminent danger of
serious bodily injury, or consisted of a threat of serious bodily
injury to another person through the use of a deadly weapon, the
court shall proceed under Subchapter E.
Art. 46C.160. DETENTION PENDING FURTHER PROCEEDINGS.
(a) On a determination by the judge or jury that the defendant is
not guilty by reason of insanity, pending further proceedings under
this chapter, the court may order the defendant detained in jail or
any other suitable place for a period not to exceed 14 days.
(b) The court may order a defendant detained in a facility
of the department or a facility of the Department of Aging and
Disability Services under this article only with the consent of the
head of the facility.
[Articles 46C.161-46C.200 reserved for expansion]
SUBCHAPTER E. DISPOSITION FOLLOWING ACQUITTAL BY REASON OF
INSANITY: NO FINDING OF DANGEROUS CONDUCT
Art. 46C.201. DISPOSITION: NONDANGEROUS CONDUCT. (a) If
the court determines that the offense of which the person was
acquitted did not involve conduct that caused serious bodily injury
to another person, placed another person in imminent danger of
serious bodily injury, or consisted of a threat of serious bodily
injury to another person through the use of a deadly weapon, the
court shall determine whether there is evidence to support a
finding that the person is a person with a mental illness or with
mental retardation.
(b) If the court determines that there is evidence to
support a finding of mental illness or mental retardation, the
court shall enter an order transferring the person to the
appropriate court for civil commitment proceedings to determine
whether the person should receive court-ordered mental health
services under Subtitle C, Title 7, Health and Safety Code, or be
committed to a residential care facility to receive mental
retardation services under Subtitle D, Title 7, Health and Safety
Code. The court may also order the person:
(1) detained in jail or any other suitable place
pending the prompt initiation and prosecution of appropriate civil
proceedings by the attorney representing the state or other person
designated by the court; or
(2) placed in the care of a responsible person on
satisfactory security being given for the acquitted person's proper
care and protection.
Art. 46C.202. DETENTION OR RELEASE. (a) Notwithstanding
Article 46C.201(b), a person placed in a department facility or a
facility of the Department of Aging and Disability Services pending
civil hearing as described by that subsection may be detained only
with the consent of the head of the facility and under an Order of
Protective Custody issued under Subtitle C or D, Title 7, Health and
Safety Code.
(b) If the court does not detain or place the person under
Article 46C.201(b), the court shall release the person.
[Articles 46C.203-46C.250 reserved for expansion]
SUBCHAPTER F. DISPOSITION FOLLOWING ACQUITTAL BY
REASON OF INSANITY: FINDING OF DANGEROUS CONDUCT
Art. 46C.251. COMMITMENT FOR EVALUATION AND TREATMENT;
REPORT. (a) The court shall order the acquitted person to be
committed for evaluation of the person's present mental condition
and for treatment to the maximum security unit of any facility
designated by the department. The period of commitment under this
article may not exceed 30 days.
(b) The court shall order that:
(1) a transcript of all medical testimony received in
the criminal proceeding be prepared as soon as possible by the court
reporter and the transcript be forwarded to the facility to which
the acquitted person is committed; and
(2) the following information be forwarded to the
facility and, as applicable, to the department or the Department of
Aging and Disability Services:
(A) the complete name, race, and gender of the
person;
(B) any known identifying number of the person,
including social security number, driver's license number, or state
identification number;
(C) the person's date of birth; and
(D) the offense of which the person was found not
guilty by reason of insanity and a statement of the facts and
circumstances surrounding the alleged offense.
(c) The court shall order that a report be filed with the
court under Article 46C.252.
(d) To determine the proper disposition of the acquitted
person, the court shall hold a hearing on disposition not later than
the 30th day after the date of acquittal.
Art. 46C.252. REPORT AFTER EVALUATION. (a) The report
ordered under Article 46C.251 must be filed with the court as soon
as practicable before the hearing on disposition but not later than
the fourth day before that hearing.
(b) The report in general terms must describe and explain
the procedure, techniques, and tests used in the examination of the
person.
(c) The report must address:
(1) whether the acquitted person has a mental illness
or mental retardation and, if so, whether the mental illness or
mental retardation is severe;
(2) whether as a result of any severe mental illness or
mental retardation the acquitted person is likely to cause serious
harm to another;
(3) whether as a result of any impairment the
acquitted person is subject to commitment under Subtitle C or D,
Title 7, Health and Safety Code;
(4) prospective treatment and supervision options, if
any, appropriate for the acquitted person; and
(5) whether any required treatment and supervision can
be safely and effectively provided as outpatient or community-based
treatment and supervision.
Art. 46C.253. HEARING ON DISPOSITION. (a) The hearing on
disposition shall be conducted in the same manner as a hearing on an
application for involuntary commitment under Subtitle C or D, Title
7, Health and Safety Code, except that the use of a jury is governed
by Article 46C.255.
(b) At the hearing, the court shall address:
(1) whether the person acquitted by reason of insanity
has a severe mental illness or mental retardation;
(2) whether as a result of any mental illness or mental
retardation the person is likely to cause serious harm to another;
and
(3) whether appropriate treatment and supervision for
any mental illness or mental retardation rendering the person
dangerous to another can be safely and effectively provided as
outpatient or community-based treatment and supervision.
(c) The court shall order the acquitted person committed for
inpatient treatment or residential care under Article 46C.256 if
the grounds required for that order are established.
(d) The court shall order the acquitted person to receive
outpatient or community-based treatment and supervision under
Article 46C.257 if the grounds required for that order are
established.
(e) The court shall order the acquitted person transferred
to an appropriate court for proceedings under Subtitle C or D, Title
7, Health and Safety Code, if the state fails to establish the
grounds required for an order under Article 46C.256 or 46C.257 but
the evidence provides a reasonable basis for believing the
acquitted person is a proper subject for those proceedings.
(f) The court shall order the acquitted person discharged
and immediately released if the evidence fails to establish that
disposition under Subsection (c), (d), or (e) is appropriate.
Art. 46C.254. EFFECT OF STABILIZATION ON TREATMENT REGIMEN.
If an acquitted person is stabilized on a treatment regimen,
including medication and other treatment modalities, rendering the
person no longer likely to cause serious harm to another, inpatient
treatment or residential care may be found necessary to protect the
safety of others only if:
(1) the person would become likely to cause serious
harm to another if the person fails to follow the treatment regimen
on an Order to Receive Outpatient or Community-Based Treatment and
Supervision; and
(2) under an Order to Receive Outpatient or
Community-Based Treatment and Supervision either:
(A) the person is likely to fail to comply with an
available regimen of outpatient or community-based treatment, as
determined by the person's insight into the need for medication,
the number, severity, and controllability of side effects, the
availability of support and treatment programs for the person from
community members, and other appropriate considerations; or
(B) a regimen of outpatient or community-based
treatment will not be available to the person.
Art. 46C.255. TRIAL BY JURY. (a) The following
proceedings under this chapter must be before the court, and the
underlying matter determined by the court, unless the acquitted
person or the state requests a jury trial or the court on its own
motion sets the matter for jury trial:
(1) a hearing under Article 46C.253;
(2) a proceeding for renewal of an order under Article
46C.261;
(3) a proceeding on a request for modification or
revocation of an order under Article 46C.266; and
(4) a proceeding seeking discharge of an acquitted
person under Article 46C.268.
(b) The following proceedings may not be held before a jury:
(1) a proceeding to determine outpatient or
community-based treatment and supervision under Article 46C.262;
or
(2) a proceeding to determine modification or
revocation of outpatient or community-based treatment and
supervision under Article 46C.267.
(c) If a hearing is held before a jury and the jury
determines that the person has a mental illness or mental
retardation and is likely to cause serious harm to another, the
court shall determine whether inpatient treatment or residential
care is necessary to protect the safety of others.
Art. 46C.256. ORDER OF COMMITMENT TO INPATIENT TREATMENT OR
RESIDENTIAL CARE. (a) The court shall order the acquitted person
committed to a mental hospital or other appropriate facility for
inpatient treatment or residential care if the state establishes by
clear and convincing evidence that:
(1) the person has a severe mental illness or mental
retardation;
(2) the person, as a result of that mental illness or
mental retardation, is likely to cause serious bodily injury to
another if the person is not provided with treatment and
supervision; and
(3) inpatient treatment or residential care is
necessary to protect the safety of others.
(b) In determining whether inpatient treatment or
residential care has been proved necessary, the court shall
consider whether the evidence shows both that:
(1) an adequate regimen of outpatient or
community-based treatment will be available to the person; and
(2) the person will follow that regimen.
(c) The order of commitment to inpatient treatment or
residential care expires on the 181st day following the date the
order is issued but is subject to renewal as provided by Article
46C.261.
Art. 46C.257. ORDER TO RECEIVE OUTPATIENT OR
COMMUNITY-BASED TREATMENT AND SUPERVISION. (a) The court shall
order the acquitted person to receive outpatient or community-based
treatment and supervision if:
(1) the state establishes by clear and convincing
evidence that the person:
(A) has a severe mental illness or mental
retardation; and
(B) as a result of that mental illness or mental
retardation is likely to cause serious bodily injury to another if
the person is not provided with treatment and supervision; and
(2) the state fails to establish by clear and
convincing evidence that inpatient treatment or residential care is
necessary to protect the safety of others.
(b) The order of commitment to outpatient or
community-based treatment and supervision expires on the first
anniversary of the date the order is issued but is subject to
renewal as provided by Article 46C.261.
Art. 46C.258. RESPONSIBILITY OF INPATIENT OR RESIDENTIAL
CARE FACILITY. (a) The head of the facility to which an acquitted
person is committed has, during the commitment period, a continuing
responsibility to determine:
(1) whether the acquitted person continues to have a
severe mental illness or mental retardation and is likely to cause
serious harm to another because of any severe mental illness or
mental retardation; and
(2) if so, whether treatment and supervision cannot be
safely and effectively provided as outpatient or community-based
treatment and supervision.
(b) The head of the facility must notify the committing
court and seek modification of the order of commitment if the head
of the facility determines that an acquitted person no longer has a
severe mental illness or mental retardation, is no longer likely to
cause serious harm to another, or that treatment and supervision
can be safely and effectively provided as outpatient or
community-based treatment and supervision.
(c) Not later than the 60th day before the date of
expiration of the order, the head of the facility shall transmit to
the committing court a psychological evaluation of the acquitted
person, a certificate of medical examination of the person, and any
recommendation for further treatment of the person. The committing
court shall make the documents available to the attorneys
representing the state and the acquitted person.
Art. 46C.259. STATUS OF COMMITTED PERSON. If an acquitted
person is committed under this subchapter, the person's status as a
patient or resident is governed by Subtitle C or D, Title 7, Health
and Safety Code, except that:
(1) transfer to a nonsecure unit is governed by
Article 46C.260;
(2) modification of the order to direct outpatient or
community-based treatment and supervision is governed by Article
46C.262; and
(3) discharge is governed by Article 46C.268.
Art. 46C.260. TRANSFER OF COMMITTED PERSON TO NONSECURE
FACILITY. (a) A person committed to a facility under this
subchapter shall be committed to the maximum security unit of any
facility designated by the department.
(b) A person committed under this subchapter shall be
transferred to the maximum security unit immediately on the entry
of the order of commitment.
(c) Unless the person is determined to be manifestly
dangerous by a review board within the department, not later than
the 60th day following the date of the person's arrival at the
maximum security unit the person shall be transferred to a
nonsecure unit of a facility designated by the department or the
Department of Aging and Disability Services, as appropriate.
(d) The commissioner 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 illnesses or with mental retardation, to determine whether
the person is manifestly dangerous and, as a result of the danger
the person presents, requires continued placement in a maximum
security unit.
(e) If the head of the facility at which the maximum
security unit is located disagrees with the determination, then the
matter shall be referred to the commissioner. The commissioner
shall decide whether the person is manifestly dangerous.
Art. 46C.261. RENEWAL OF ORDERS FOR INPATIENT COMMITMENT OR
OUTPATIENT OR COMMUNITY-BASED TREATMENT AND SUPERVISION. (a) A
court that orders an acquitted person committed to inpatient
treatment or orders outpatient or community-based treatment and
supervision annually shall determine whether to renew the order.
(b) Not later than the 30th day before the date an order is
scheduled to expire, the institution to which a person is
committed, the person responsible for providing outpatient or
community-based treatment and supervision, or the attorney
representing the state may file a request that the order be renewed.
The request must explain in detail the reasons why the person
requests renewal under this article. A request to renew an order
committing the person to inpatient treatment must also explain in
detail why outpatient or community-based treatment and supervision
is not appropriate.
(c) The request for renewal must be accompanied by a
certificate of medical examination for mental illness signed by a
physician who examined the person during the 30-day period
preceding the date on which the request is filed.
(d) On the filing of a request for renewal under this
article, the court shall:
(1) set the matter for a hearing; and
(2) appoint an attorney to represent the person.
(e) The court shall act on the request for renewal before
the order expires.
(f) If a hearing is held, the person may be transferred from
the facility to which the acquitted person was committed to a jail
for purposes of participating in the hearing only if necessary but
not earlier than 72 hours before the hearing begins. If the order
is renewed, the person shall be transferred back to the facility
immediately on renewal of the order.
(g) If no objection is made, the court may admit into
evidence the certificate of medical examination for mental illness.
Admitted certificates constitute competent medical or psychiatric
testimony, and the court may make its findings solely from the
certificate and the detailed request for renewal.
(h) A court shall renew the order only if the court finds
that the party who requested the renewal has established by clear
and convincing evidence that continued mandatory supervision and
treatment are appropriate. A renewed order authorizes continued
inpatient commitment or outpatient or community-based treatment
and supervision for not more than one year.
(i) The court, on application for renewal of an order for
inpatient or residential care services, may modify the order to
provide for outpatient or community-based treatment and
supervision if the court finds the acquitted person has established
by a preponderance of the evidence that treatment and supervision
can be safely and effectively provided as outpatient or
community-based treatment and supervision.
Art. 46C.262. COURT-ORDERED OUTPATIENT OR COMMUNITY-BASED
TREATMENT AND SUPERVISION AFTER INPATIENT COMMITMENT. (a) An
acquitted person, the head of the facility to which the acquitted
person is committed, or the attorney representing the state may
request that the court modify an order for inpatient treatment or
residential care to order outpatient or community-based treatment
and supervision.
(b) The court shall hold a hearing on a request made by the
head of the facility to which the acquitted person is committed. A
hearing under this subsection must be held not later than the 14th
day after the date of the request.
(c) If a request is made by an acquitted person or the
attorney representing the state, the court must act on the request
not later than the 14th day after the date of the request. A hearing
under this subsection is at the discretion of the court, except that
the court shall hold a hearing if the request and any accompanying
material provide a basis for believing modification of the order
may be appropriate.
(d) If a request is made by an acquitted person not later
than the 90th day after the date of a hearing on a previous request,
the court is not required to act on the request except on the
expiration of the order or on the expiration of the 90-day period
following the date of the hearing on the previous request.
(e) The court shall rule on the request during or as soon as
practicable after any hearing on the request but not later than the
14th day after the date of the request.
(f) The court shall modify the commitment order to direct
outpatient or community-based treatment and supervision if at the
hearing the acquitted person establishes by a preponderance of the
evidence that treatment and supervision can be safely and
effectively provided as outpatient or community-based treatment
and supervision.
Art. 46C.263. COURT-ORDERED OUTPATIENT OR COMMUNITY-BASED
TREATMENT AND SUPERVISION. (a) The court may order an acquitted
person to participate in an outpatient or community-based regimen
of treatment and supervision:
(1) as an initial matter under Article 46C.253;
(2) on renewal of an order of commitment under Article
46C.261; or
(3) after a period of inpatient treatment or
residential care under Article 46C.262.
(b) An acquitted person may be ordered to participate in an
outpatient or community-based regimen of treatment and supervision
only if:
(1) the court receives and approves an outpatient or
community-based treatment plan that comprehensively provides for
the outpatient or community-based treatment and supervision; and
(2) the court finds that the outpatient or
community-based treatment and supervision provided for by the plan
will be available to and provided to the acquitted person.
(c) The order may require the person to participate in a
prescribed regimen of medical, psychiatric, or psychological care
or treatment, and the regimen may include treatment with
psychoactive medication.
(d) The court may order that supervision of the acquitted
person be provided by the appropriate community supervision and
corrections department or the facility administrator of a community
center that provides mental health or mental retardation services.
(e) The court may order the acquitted person to participate
in a supervision program funded by the Texas Correctional Office on
Offenders with Medical or Mental Impairments.
(f) An order under this article must identify the person
responsible for administering an ordered regimen of outpatient or
community-based treatment and supervision.
(g) In determining whether an acquitted person should be
ordered to receive outpatient or community-based treatment and
supervision rather than inpatient care or residential treatment,
the court shall have as its primary concern the protection of
society.
Art. 46C.264. LOCATION OF COURT-ORDERED OUTPATIENT OR
COMMUNITY-BASED TREATMENT AND SUPERVISION. (a) The court may
order the outpatient or community-based treatment and supervision
to be provided in any appropriate county where the necessary
resources are available.
(b) This article does not supersede any requirement under
the other provisions of this subchapter to obtain the consent of a
treatment and supervision provider to administer the court-ordered
outpatient or community-based treatment and supervision.
Art. 46C.265. SUPERVISORY RESPONSIBILITY FOR OUTPATIENT OR
COMMUNITY-BASED TREATMENT AND SUPERVISION. (a) The person
responsible for administering a regimen of outpatient or
community-based treatment and supervision shall:
(1) monitor the condition of the acquitted person; and
(2) determine whether the acquitted person is
complying with the regimen of treatment and supervision.
(b) The person responsible for administering a regimen of
outpatient or community-based treatment and supervision shall
notify the court ordering that treatment and supervision and the
attorney representing the state if the person:
(1) fails to comply with the regimen; and
(2) becomes likely to cause serious harm to another.
Art. 46C.266. MODIFICATION OR REVOCATION OF ORDER FOR
OUTPATIENT OR COMMUNITY-BASED TREATMENT AND SUPERVISION. (a) The
court, on its own motion or the motion of any interested person and
after notice to the acquitted person and a hearing, may modify or
revoke court-ordered outpatient or community-based treatment and
supervision.
(b) At the hearing, the court without a jury shall determine
whether the state has established clear and convincing evidence
that:
(1) the acquitted person failed to comply with the
regimen in a manner or under circumstances indicating the person
will become likely to cause serious harm to another if the person is
provided continued outpatient or community-based treatment and
supervision; or
(2) the acquitted person has become likely to cause
serious harm to another if provided continued outpatient or
community-based treatment and supervision.
(c) On a determination under Subsection (b), the court may
take any appropriate action, including:
(1) revoking court-ordered outpatient or
community-based treatment and supervision and ordering the person
committed for inpatient or residential care; or
(2) imposing additional or more stringent terms on
continued outpatient or community-based treatment.
(d) An acquitted person who is the subject of a proceeding
under this article is entitled to representation by counsel in the
proceeding.
(e) The court shall set a date for a hearing under this
article that is not later than the seventh day after the applicable
motion was filed. The court may grant one or more continuances of
the hearing on the motion of a party or of the court and for good
cause shown.
Art. 46C.267. DETENTION PENDING PROCEEDINGS TO MODIFY OR
REVOKE ORDER FOR OUTPATIENT OR COMMUNITY-BASED TREATMENT AND
SUPERVISION. (a) The state or the head of the facility or other
person responsible for administering a regimen of outpatient or
community-based treatment and supervision may file a sworn
application with the court for the detention of an acquitted person
receiving court-ordered outpatient or community-based treatment
and supervision. The application must state that the person meets
the criteria of Article 46C.266 and provide a detailed explanation
of that statement.
(b) If the court determines that the application
establishes probable cause to believe the order for outpatient or
community-based treatment and supervision should be revoked, the
court shall issue an order to an on-duty peace officer authorizing
the acquitted person to be taken into custody and brought before the
court.
(c) An acquitted person taken into custody under an order of
detention shall be brought before the court without unnecessary
delay.
(d) When an acquitted person is brought before the court,
the court shall determine whether there is probable cause to
believe that the order for outpatient or community-based treatment
and supervision should be revoked. On a finding that probable cause
for revocation exists, the court shall order the person held in
protective custody pending a determination of whether the order
should be revoked.
(e) An acquitted person may be detained under an order for
protective custody for a period not to exceed 72 hours, excluding
Saturdays, Sundays, legal holidays, and the period prescribed by
Section 574.025(b), Health and Safety Code, for an extreme
emergency.
(f) This subchapter does not affect the power of a peace
officer to take an acquitted person into custody under Section
573.001, Health and Safety Code.
Art. 46C.268. ADVANCE DISCHARGE OF ACQUITTED PERSON AND
TERMINATION OF JURISDICTION. (a) An acquitted person, the head of
the facility to which the acquitted person is committed, the person
responsible for providing the outpatient or community-based
treatment and supervision, or the state may request that the court
discharge an acquitted person from inpatient commitment or
outpatient or community-based treatment and supervision.
(b) Not later than the 14th day after the date of the
request, the court shall hold a hearing on a request made by the
head of the facility to which the acquitted person is committed or
the person responsible for providing the outpatient or
community-based treatment and supervision.
(c) If a request is made by an acquitted person, the court
must act on the request not later than the 14th day after the date of
the request. A hearing under this subsection is at the discretion
of the court, except that the court shall hold a hearing if the
request and any accompanying material indicate that modification of
the order may be appropriate.
(d) If a request is made by an acquitted person not later
than the 90th day after the date of a hearing on a previous request,
the court is not required to act on the request except on the
expiration of the order or on the expiration of the 90-day period
following the date of the hearing on the previous request.
(e) The court shall rule on the request during or shortly
after any hearing that is held and in any case not later than the
14th day after the date of the request.
(f) The court shall discharge the acquitted person from all
court-ordered commitment and treatment and supervision and
terminate the court's jurisdiction over the person if the court
finds that the acquitted person has established by a preponderance
of the evidence that:
(1) the acquitted person does not have a severe mental
illness or mental retardation; or
(2) the acquitted person is not likely to cause
serious harm to another because of any severe mental illness or
mental retardation.
Art. 46C.269. TERMINATION OF COURT'S JURISDICTION.
(a) The jurisdiction of the court over a person covered by this
subchapter automatically terminates on the date when the cumulative
total period of institutionalization and outpatient or
community-based treatment and supervision imposed under this
subchapter equals the maximum term of imprisonment provided by law
for the offense of which the person was acquitted by reason of
insanity.
(b) On the termination of the court's jurisdiction under
this article, the person must be discharged from any inpatient
treatment or residential care or outpatient or community-based
treatment and supervision ordered under this subchapter.
(c) An inpatient or residential care facility to which a
person has been committed under this subchapter or a person
responsible for administering a regimen of outpatient or
community-based treatment and supervision under this subchapter
must notify the court not later than the 30th day before the court's
jurisdiction over the person ends under this article.
(d) This subchapter does not affect whether a person may be
ordered to receive care or treatment under Subtitle C or D, Title 7,
Health and Safety Code.
Art. 46C.270. APPEALS. (a) An acquitted person may appeal
a judgment reflecting an acquittal by reason of insanity on the
basis of the following:
(1) a finding that the acquitted person committed the
offense; or
(2) a finding that the offense on which the
prosecution was based involved conduct that:
(A) caused serious bodily injury to another
person;
(B) placed another person in imminent danger of
serious bodily injury; or
(C) consisted of a threat of serious bodily
injury to another person through the use of a deadly weapon.
(b) Either the acquitted person or the state may appeal
from:
(1) an Order of Commitment to Inpatient Treatment or
Residential Care entered under Article 46C.256;
(2) an Order to Receive Outpatient or Community-Based
Treatment and Supervision entered under Article 46C.257 or 46C.262;
(3) an order renewing or refusing to renew an Order for
Inpatient Commitment or Outpatient or Community-Based Treatment
and Supervision entered under Article 46C.261;
(4) an order modifying or revoking an Order for
Outpatient or Community-Based Treatment and Supervision entered
under Article 46C.266 or refusing a request to modify or revoke that
order; or
(5) an order discharging an acquitted person under
Article 46C.268 or denying a request for discharge of an acquitted
person.
(c) An appeal under this subchapter may not be considered
moot solely due to the expiration of an order on which the appeal is
based.
SECTION 3. Subchapter A, Chapter 533, Health and Safety
Code, is amended by adding Section 533.0095 to read as follows:
Sec. 533.0095. COLLECTION AND MAINTENANCE OF INFORMATION
REGARDING PERSONS FOUND NOT GUILTY BY REASON OF INSANITY. (a) The
executive commissioner of the Health and Human Services Commission
by rule shall require the department to collect information and
maintain current records regarding a person found not guilty of an
offense by reason of insanity under Chapter 46C, Code of Criminal
Procedure, who is:
(1) ordered by a court to receive inpatient mental
health services under Chapter 574 or under Chapter 46C, Code of
Criminal Procedure;
(2) committed by a court for long-term placement in a
residential care facility under Chapter 593 or under Chapter 46C,
Code of Criminal Procedure; or
(3) ordered by a court to receive outpatient or
community-based treatment and supervision.
(b) Information maintained by the department under this
section must include the name and address of any facility to which
the person is committed, the length of the person's commitment to
the facility, and any post-release outcome.
(c) The department shall file annually with the presiding
officer of each house of the legislature a written report
containing the name of each person described by Subsection (a), the
name and address of any facility to which the person is committed,
the length of the person's commitment to the facility, and any
post-release outcome.
SECTION 4. 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 or 46C [Article 46.03], Code of
Criminal Procedure; or
(B) Chapter 55, Family Code.
SECTION 5. The change in law made by this Act applies only
to an offense committed on or after the effective date of this Act.
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 section, an offense was committed before the effective date of
this Act if any element of the offense was committed before that
date.
SECTION 6. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 837 passed the Senate on
May 5, 2005, by the following vote: Yeas 29, Nays 0; and that the
Senate concurred in House amendments on May 27, 2005, by the
following vote: Yeas 29, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 837 passed the House, with
amendments, on May 25, 2005, by a non-record vote.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor