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repealed.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.