79R198 KEL-F

By:  Wentworth                                                    S.B. No. 837


A BILL TO BE ENTITLED
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 Article 46.03, Code of Criminal Procedure, is repealed.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. The 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) "Commission" means the Health and Human Services Commission. (2) "Commissioner" means the health and human services commissioner. (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. THE INSANITY DEFENSE. (a) The insanity defense provided by Section 8.01, Penal Code, may be submitted to the jury only if supported by competent evidence. (b) If the insanity defense is submitted, the trier of facts shall determine and include in the verdict or judgment or both whether the defendant is guilty, not guilty, or not guilty by reason of insanity. (c) The trier of facts must return a verdict of not guilty by reason of insanity if: (1) the prosecution has established beyond a reasonable doubt that the alleged conduct 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. (d) 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. (e) The court, the attorney for 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.003. RAISING THE INSANITY DEFENSE. (a) A defendant planning to offer evidence of the insanity defense must file with the court and the prosecuting attorney a notice of the defendant's intention to offer that evidence. (b) The notice must be filed at least 10 days before the date the case is set for trial, except that: (1) if the court sets a pretrial hearing before the 10-day period, the defendant shall give notice at the hearing; and (2) if before the 10-day period the defendant raises the issue of the defendant's incompetency to stand trial, the defendant must at the same time file notice of the defendant's intention to offer evidence of the insanity defense. (c) Unless notice is timely filed under Subsection (b), evidence on the insanity defense is not admissible unless the court finds that good cause exists for failure to give notice.
[Articles 46C.004-46C.050 reserved for expansion]
SUBCHAPTER B. EXAMINATION OF DEFENDANT
Art. 46C.051. APPOINTMENT OF EXPERTS. (a) If notice of intention to raise the insanity defense is filed under Article 46C.003, the court may, on its own motion or motion by the defendant, the defendant's counsel, or the prosecuting attorney, 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. (c) 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. Art. 46C.052. 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) for an appointment made before September 1, 2006, at least five years of experience before September 1, 2005, in performing criminal forensic evaluations for courts; or (iii) for an appointment made on or after September 1, 2006, at least five years of experience before September 1, 2005, 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. 46C.053. 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 commission. (b) If a defendant who has been ordered to a facility operated by the commission 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 commission for examination without the consent of the head of that facility. Art. 46C.054. 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 prosecuting attorney. (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 Chapter 574, Health and Safety Code; or (2) whether the defendant is presently a person with mental retardation. Art. 46C.055. 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 commission 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.056. COMPETENCY TO STAND TRIAL: CONCURRENT APPOINTMENT. 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.
[Articles 46C.057-46C.100 reserved for expansion]
SUBCHAPTER C. DISPOSITION FOLLOWING ACQUITTAL BY REASON OF INSANITY: DETERMINATION REGARDING VIOLENCE OF CONDUCT
Art. 46C.101. DETERMINATION REGARDING VIOLENCE OF CONDUCT. If a defendant is found not guilty by reason of insanity in the trial of an offense, the court shall determine whether the conduct committed by the acquitted person involved an act, attempt, or threat of serious bodily injury to another person. Art. 46C.102. DISPOSITION: NONVIOLENT CONDUCT. (a) If the court determines that the person did not commit an act, attempt, or threat of serious bodily injury to another person, 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 Chapter 574, Health and Safety Code, or be committed to a residential care facility to receive mental retardation services under Chapter 593, 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 for 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. (c) Notwithstanding Subsection (b), a person placed in a commission facility pending civil hearing as described by this article may be detained 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 person under Subsection (b), the court shall release the person. Art. 46C.103. DISPOSITION: VIOLENT CONDUCT. (a) If a defendant is found not guilty by reason of insanity in the trial of an offense and the court determines that the acquitted person committed an act, attempt, or threat of serious bodily injury to another person, the trial court may transfer the acquitted person to the appropriate court for civil commitment proceedings on receipt of that court's written consent to the transfer. A trial court that transfers a person to the appropriate court for civil commitment proceedings shall order the person detained in jail or other suitable place pending the initiation of appropriate civil proceedings. (b) A trial court that does not transfer a person to the appropriate court for civil commitment proceedings as described by Subsection (a) shall retain jurisdiction over the person and shall proceed as provided by Subchapters D and E.
[Articles 46C.104-46C.150 reserved for expansion]
SUBCHAPTER D. DISPOSITION FOLLOWING ACQUITTAL BY REASON OF INSANITY: COMMITMENT BY TRIAL COURT
Art. 46C.151. COMMITMENT TO MAXIMUM SECURITY UNIT. A trial court that retains jurisdiction over a person as permitted by Article 46C.103 shall order the person to be committed to the maximum security unit of any facility designated by the commission until the person is eligible for: (1) release under Subchapter E; or (2) transfer to a nonsecurity unit of a facility under Article 46C.152. Art. 46C.152. TRANSFER TO NONSECURITY UNIT. (a) Unless the person is determined to be manifestly dangerous by a review board within the commission, not later than the 60th day after the date the person arrives at the maximum security unit, the person shall be transferred to a nonsecurity unit of a facility designated by the commission. (b) 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. (c) 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. The commissioner shall decide whether the person is manifestly dangerous. Art. 46C.153. EXAMINATION; REPORT. The court shall order that an examination of the person's present mental condition be conducted and that a report be filed with the court. Art. 46C.154. HEARING. (a) Not later than the 30th day after the date of the acquittal order, a hearing shall take place to determine if the person acquitted by reason of insanity: (1) is presently a person with a mental illness or with mental retardation; and (2) meets the criteria for involuntary commitment as provided by Subtitle C or D, Title 7, Health and Safety Code, as applicable. (b) The trial court shall conduct the hearing in the same manner as a hearing on an application for involuntary commitment under Subtitle C or D, Title 7, Health and Safety Code, as applicable. (c) If the court finds that the acquitted person meets the criteria for involuntary commitment, the court shall order that person to be committed to a mental hospital or other appropriate facility, as designated by the commission, for a period not to exceed 90 days. The court may order the acquitted person to participate in a prescribed regimen of medical, psychiatric, or psychological care or treatment on an out-patient basis as permitted by Article 46C.156. (d) If the court finds that the person acquitted by reason of insanity does not meet the criteria for involuntary commitment, the court shall order that person's immediate release. Art. 46C.155. TRANSCRIPT; DOCUMENTATION. The court shall issue an order that: (1) a transcript of all medical testimony received in the criminal proceedings and the commitment proceedings be prepared as soon as possible by the court reporters; and (2) the transcript, together with a statement of the facts and circumstances surrounding the alleged offense, accompany the person to the mental hospital or other appropriate facility. Art. 46C.156. OUT-PATIENT SUPERVISION. The court may order the acquitted person to participate in a prescribed regimen of medical, psychiatric, or psychological care or treatment on an out-patient basis if: (1) at the time of the evaluation under Article 46C.153 before the hearing on involuntary commitment under Article 46C.154, the report of the person's present mental condition includes a statement that, while the person acquitted by reason of insanity meets the criteria for involuntary commitment, the person's prescribed regimen of medical, psychiatric, or psychological treatment or care can be provided on an out-patient basis; and (2) the court finds that the requirements of Subdivision (1) are met.
[Articles 46C.157-46C.200 reserved for expansion]
SUBCHAPTER E. REVIEW OF COMMITMENT OR TERMS OF COMMITMENT
Art. 46C.201. JUDICIAL RELEASE. A person acquitted by reason of insanity and committed to a mental hospital or other appropriate facility under Article 46C.154 may be released only by order of the committing court in accordance with the procedures provided by this subchapter. Art. 46C.202. FACILITY RECOMMENDATION FOR RELEASE, CONTINUED IN-PATIENT SUPERVISION, OR OUT-PATIENT SUPERVISION. (a) If at any time before the expiration of a commitment order the superintendent of the facility to which the acquitted person is committed determines that the person has recovered from the person's mental condition to the extent that the person no longer meets the criteria for involuntary commitment, or that the person continues to meet those criteria but the treatment or care of the person can be provided on an out-patient basis as described by Article 46C.156, the superintendent shall promptly file a certificate to that effect with the clerk of the court that ordered the commitment. (b) If the superintendent of the facility intends to recommend release, out-patient care, or continued in-patient care on the expiration of a commitment order, at least 14 days before the date of expiration of the order the superintendent must file a certificate to that effect with the clerk of the court that ordered the commitment. (c) The clerk shall notify the district or county attorney on receipt of a certificate described by Subsection (a) or (b). Art. 46C.203. JUDICIAL EVALUATION OF COMMITMENT AND POTENTIAL OUT-PATIENT SUPERVISION. (a) On receipt of a certificate under Article 46C.202 or on the expiration of a commitment order, the court: (1) shall order the release of the acquitted person; or (2) on its own motion or on the motion of the district or county attorney, shall hold a hearing to determine whether: (A) the acquitted person continues to meet the criteria for involuntary commitment; and (B) an order should be issued requiring the person to participate in a prescribed regimen of medical, psychiatric, or psychological care or treatment on an out-patient basis as provided by Article 46C.156. (b) A hearing under Subsection (a) must be conducted according to the requirements of Subtitle C or D, Title 7, Health and Safety Code, as applicable, before the expiration of the commitment order. (c) If the court finds that the acquitted person continues to meet the criteria for involuntary commitment and that out-patient supervision is not appropriate, the court shall order that the person be returned to a mental hospital or other appropriate in-patient or residential facility. (d) If the court finds that continued in-patient or residential care is required, the commitment continues until the expiration of the original order, if one is still in effect, or the court shall issue a new commitment order of an appropriate duration as required by Subsection (e). (e) Commitment orders issued subsequent to an initial commitment order under this chapter shall be of an appropriate duration as provided by Subtitle C or D, Title 7, Health and Safety Code, as applicable. Art. 46C.204. MULTIPLE REQUESTS FOR RELEASE OR OUT-PATIENT SUPERVISION. If a hearing on a request for release or out-patient supervision has been held before the expiration of a commitment order, the court is not required to act on a subsequent request until the expiration of: (1) a commitment order; or (2) the 90th day following a hearing on a previous request. Art. 46C.205. JUDICIAL REVIEW OF EXISTING OUT-PATIENT SUPERVISION; MODIFICATION OR REVOCATION. (a) The court may at any time modify or revoke an existing out-patient regimen of medical, psychiatric, or psychological care or treatment according to the requirements of Subtitle C or D, Title 7, Health and Safety Code, as applicable. (b) According to the requirements of Subtitle C or D, Title 7, Health and Safety Code, as applicable, the court shall review the continuing need for an out-patient order as follows: (1) for an initial out-patient order, on the expiration of the 90th day following the date of issuance of the order; and (2) for a subsequent out-patient order, not less than once during each 12-month period following the date of issuance of that subsequent order. Art. 46C.206. FACILITY RECOMMENDATION REGARDING EXISTING OUT-PATIENT SUPERVISION. (a) The superintendent of the facility or other individual responsible for administering an existing regimen of out-patient care or treatment imposed on an acquitted person under this chapter shall notify the court ordering the out-patient care if: (1) the person fails to comply with that regimen; or (2) the person's condition has deteriorated to an extent that out-patient care is no longer appropriate. (b) On notice under Subsection (a) or on other probable cause to believe that the person has failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, the person may be taken into custody and brought without unnecessary delay before the court having jurisdiction over the person. (c) The court shall determine, after a hearing, whether the person should be remanded to a suitable facility for protective custody, according to the requirements of Subtitle C or D, Title 7, Health and Safety Code, as applicable, pending a hearing on whether the person continues to meet the criteria for involuntary commitment and whether the out-patient order should be modified or revoked. Art. 46C.207. 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 in-patient or residential facility under Subchapter D or this subchapter 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 in-patient or residential facility only pursuant to civil commitment proceedings. SECTION 3. Section 576.025(a), 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 4. 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 5. This Act takes effect September 1, 2005.