By: Duncan S.B. No. 867

A BILL TO BE ENTITLED

AN ACT

relating to procedures regarding criminal defendants who are or may be persons with mental illness or mental retardation.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Article 16.22, Code of Criminal Procedure, is amended to read as follows:

Art. 16.22. EXAMINATION AND TRANSFER OF DEFENDANT SUSPECTED OF HAVING MENTAL ILLNESS OR MENTAL RETARDATION. (a)(1) Not later than 72 hours after receiving evidence or a statement that may establish reasonable cause to believe that a defendant committed to the sheriff's custody has a mental illness or is a person with mental retardation, the sheriff shall notify a magistrate of that fact. A defendant's behavior or the result of a prior evaluation indicating a need for referral for further mental health or mental retardation assessment must be considered in determining whether reasonable cause exists to believe the defendant has a mental illness or is a person with mental retardation. On a determination that there is reasonable cause to believe that the defendant has a mental illness or is a person with mental retardation, the magistrate, except as provided by Subdivision (2), shall order an examination of the defendant by the local mental health or mental retardation authority or another [disinterested expert experienced and] qualified [in] mental health or mental retardation expert to determine whether the defendant has a mental illness as defined by Section 571.003, Health and Safety Code, or is a person with mental retardation as defined by Section 591.003, Health and Safety Code.

(2) The magistrate is not required to order an examination described by Subdivision (1) if the defendant in the year preceding the defendant's applicable date of arrest has been evaluated and determined to have a mental illness or to be a person with mental retardation by the local mental health or mental retardation authority or another mental health or mental retardation expert described by Subdivision (1). A court that elects to use the results of that evaluation may proceed under Subsection (c).

(3) If the defendant fails or refuses to submit to an examination required under Subdivision (1), the magistrate may order the defendant to submit to an examination in a mental health facility determined to be appropriate by the local mental health or mental retardation authority for a reasonable period not to exceed 21 days. The magistrate may order a defendant to a facility operated by the [Texas] Department of State [Mental] Health Services or the Department of Aging and Disability Services [and Mental Retardation] for examination only on request of the local mental health or mental retardation authority and with the consent of the head of the facility. If a defendant who has been ordered to a facility operated by the [Texas] Department of State [Mental] Health Services or the Department of Aging and Disability Services [and Mental Retardation] for examination remains in the facility for a period exceeding 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 [Texas Department of Mental Health and Mental Retardation] facility for the mileage and per diem expenses of the personnel required to transport the defendant calculated in accordance with the state travel regulations in effect at the time.

(b) A written report of the examination shall be submitted to the magistrate not later than the 30th day after the date of any [within 30 days of the] order of examination issued in a felony case and not later than the 10th day after the date of any order of examination issued in a misdemeanor case, and the magistrate shall provide [furnish] copies of the report to the defense counsel and the prosecuting attorney. The report must [shall] include a description of the procedures used in the examination and the examiner's observations and findings pertaining to:

(1) whether the defendant is a person who has a mental illness or is a person with mental retardation;

(2) whether there is clinical evidence to support a belief that the defendant may be incompetent to stand trial and should undergo a complete competency examination under Subchapter B, Chapter 46B; and

(3) recommended treatment.

(c) After the court receives the examining expert's report relating to the defendant under Subsection (b) or elects to use the results of an evaluation described by Subsection (a)(2), the court may, as applicable [resume]:

(1) resume criminal proceedings against the defendant, including any appropriate proceedings related to the defendant's release on personal bond under Article 17.032; or

(2) resume or initiate competency proceedings, if required, as provided by Chapter 46B or other proceedings affecting the defendant's receipt of appropriate court-ordered mental health or mental retardation services, including proceedings related to the defendant's receipt of outpatient mental health services under Section 574.034, Health and Safety Code.

(d) Nothing in this article prevents the court from, pending an evaluation of the defendant as described by this article:

(1) releasing a mentally ill or mentally retarded defendant from custody on personal or surety bond; or

(2) ordering an examination regarding the defendant's competency to stand trial.

SECTION 2. Subchapter A, Chapter 46B, Code of Criminal Procedure, is amended by amending Articles 46B.009 and 46B.010 and by adding Article 46B.0095 to read as follows:

Art. 46B.009. TIME CREDITS. [(a)] A court sentencing a person convicted of a criminal offense shall credit to the term of the person's sentence the time the person is confined in a mental health facility, residential care facility, or jail pending trial under Subchapter C.

[(b) A defendant may not be committed to a mental hospital or other in-patient or residential facility under this chapter for a cumulative period that exceeds the maximum term provided by law for the offense for which the defendant was to be tried. On expiration of that maximum term, the defendant may be confined for an additional period in a mental hospital or other in-patient or residential facility only pursuant to civil commitment proceedings.]

Art. 46B.0095. MAXIMUM PERIOD OF FACILITY COMMITMENT OR OUTPATIENT TREATMENT PROGRAM PARTICIPATION DETERMINED BY MAXIMUM TERM FOR OFFENSE. (a) A defendant may not, under this chapter, be committed to a mental hospital or other inpatient or residential facility, ordered to participate in an outpatient treatment program, or subjected to both inpatient and outpatient treatment for a cumulative period that exceeds the maximum term provided by law for the offense for which the defendant was to be tried, except that if the defendant is charged with a misdemeanor and has been ordered only to participate in an outpatient treatment program under Subchapter D or E, the maximum period of restoration is two years beginning on the date of the initial order for outpatient treatment program participation was entered.

(b) On expiration of the maximum restoration period under Subsection (a), the defendant may be confined for an additional period in a mental hospital or other inpatient or residential facility or ordered to participate for an additional period in an outpatient treatment program, as appropriate, only pursuant to civil commitment proceedings.

Art. 46B.010. MANDATORY DISMISSAL OF MISDEMEANOR CHARGES. If a court orders the commitment of or participation in an outpatient treatment program by [commits] a defendant who is charged with a misdemeanor punishable by confinement and the defendant is not tried before the date of expiration of the maximum period of restoration under this chapter as described by Article 46B.0095 [second anniversary of the date on which the order of commitment was entered], the court on the motion of the attorney representing the state shall dismiss the charge.

SECTION 3. Article 46B.072, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.072. RELEASE ON BAIL. (a) Subject to conditions reasonably related to assuring public safety and the effectiveness of the defendant's treatment, if [If] the court determines that a defendant found incompetent to stand trial is not a danger to others and may be safely treated on an outpatient basis with [for] the specific objective [purpose] of attaining competency to stand trial and if an appropriate outpatient treatment program is available for the defendant, the court:

(1) may release [the defendant] on bail a defendant found incompetent to stand trial with respect to a felony or may continue the defendant's release on bail; and

(2) shall release on bail a defendant found incompetent to stand trial with respect to a misdemeanor or shall continue the defendant's release on bail[, subject to conditions reasonably related to assuring public safety and the effectiveness of the defendant's treatment].

(b) The court shall order a defendant released on bail under Subsection (a) to participate in an outpatient treatment program for a period not to exceed 120 days.

(c) Notwithstanding Subsection (a), the court may order a defendant to participate in an outpatient treatment program under this article only if:

(1) the court receives and approves a comprehensive plan that:

(A) provides for the treatment of the defendant for purposes of competency restoration; and

(B) identifies the person who will be responsible for providing that treatment to the defendant; and

(2) the court finds that the treatment proposed by the plan will be available to and will be provided to the defendant.

(d) An order issued under this article may require the defendant to participate in:

(1) as appropriate, an outpatient treatment program administered by a community center or an outpatient treatment program administered by any other entity that provides outpatient competency restoration services; and

(2) an appropriate prescribed regimen of medical, psychiatric, or psychological care or treatment, including care or treatment involving the administration of psychoactive medication, including those required under 46B.086.

SECTION 4. Subsections (c) and (d), Article 46B.073, Code of Criminal Procedure, are amended to read as follows:

(c) If the defendant is charged with an offense listed in Article 17.032(a), other than an offense listed in Article 17.032(a)(6), or the indictment alleges an affirmative finding under Section 3g(a)(2), Article 42.12, the court shall enter an order committing the defendant to the maximum security unit of any facility designated by the department, to an agency of the United States operating a mental hospital, or to a Department of Veterans Affairs hospital.

(d) If the defendant is not charged with an offense described by Subsection (c) [listed in Article 17.032(a)] and the indictment does not allege an affirmative finding under Section 3g (a)(2), Article 42.12, the court shall enter an order committing the defendant to a mental health facility or residential care facility determined to be appropriate by the local mental health authority or local mental retardation authority.

SECTION 5. Articles 46B.075 and 46B.076, Code of Criminal Procedure, are amended to read as follows:

Art. 46B.075. TRANSFER OF DEFENDANT TO FACILITY OR OUTPATIENT TREATMENT PROGRAM. An [A commitment] order issued under Article 46B.072 or 46B.073 [this subchapter] must place the defendant in the custody of the sheriff for transportation to the facility or outpatient treatment program, as applicable, in which the defendant is to receive treatment for purposes of competency restoration [be confined].

Art. 46B.076. COURT'S ORDER. (a) If the defendant is found incompetent to stand trial, not later than the date of the order of commitment or of release on bail, as applicable, the court shall send a copy of the order to the facility of the department to which the defendant is committed or the outpatient treatment program to which the defendant is released [not later than the date the defendant is committed to the facility]. The court shall also provide to the facility or outpatient treatment program copies of the following made available to the court during the incompetency trial:

(1) reports of each expert;

(2) psychiatric, psychological, or social work reports that relate to the mental condition of the defendant;

(3) documents provided by the attorney representing the state or the attorney representing the defendant that relate to the defendant's current or past mental condition;

(4) copies of the indictment or information and any supporting documents used to establish probable cause in the case;

(5) the defendant's criminal history record; and

(6) the addresses of the attorney representing the state and the attorney representing the defendant.

(b) The court shall order that the transcript of all medical testimony received by the jury or court be promptly prepared by the court reporter and forwarded to the proper facility or outpatient treatment program.

SECTION 6. Subsection (a), Article 46B.077, Code of Criminal Procedure, is amended to read as follows:

(a) The facility to which the defendant is committed or the outpatient treatment program to which the defendant is released on bail shall:

(1) develop an individual program of treatment;

(2) assess and evaluate whether the defendant will obtain competency in the foreseeable future; and

(3) report to the court and to the local mental health authority or to the local mental retardation authority on the defendant's progress toward achieving competency.

SECTION 7. Articles 46B.078 through 46B.083, Code of Criminal Procedure, are amended to read as follows:

Art. 46B.078. CHARGES SUBSEQUENTLY DISMISSED. If the charges pending against a defendant are dismissed, the [committing] court that issued the order under Article 46B.072 or 46B.073 shall send a copy of the order of dismissal to the sheriff of the county in which the [committing] court is located and to the head of the facility or the provider of the outpatient treatment program, as appropriate [in which the defendant is held]. On receipt of the copy of the order, the facility or outpatient treatment program shall discharge the defendant into the care of the sheriff for transportation in the manner described by Article 46B.082.

Art. 46B.079. NOTICE AND REPORT TO COURT. (a) The head of the facility or the provider of the outpatient treatment program, as appropriate, not later than the 15th day before the date on which a restoration period is to expire, shall notify the applicable court that the restoration period is about to expire.

(b) The head of the facility or outpatient treatment program provider shall promptly notify the court when the head of the facility or outpatient treatment program provider believes that:

(1) the defendant has attained competency to stand trial; or

(2) the defendant will not attain competency in the foreseeable future.

(c) When the head of the facility or outpatient treatment program provider gives notice to the court under Subsection (a) or (b), the head of the facility or outpatient treatment program provider also shall file a final report with the court stating the reason for the proposed discharge under this chapter and including a list of the types and dosages of medications with which the defendant was treated for mental illness while in the facility or participating in the outpatient treatment program. To enable any objection to the findings of the report to be made in a timely manner under Article 46B.084(a), the court shall provide copies of the report to the attorney representing the defendant and the attorney representing the state.

(d) If the head of the facility or outpatient treatment program provider notifies the court that the initial restoration period is about to expire, the notice may contain a request for an extension of the period for an additional period of 60 days and an explanation for the basis of the request [RETURN TO COMMITTING COURT. (a) A defendant committed under this subchapter shall be returned to the committing court as soon as practicable after the date on which the defendant's term of commitment expires].

[(b) A defendant committed under this subchapter whose term of commitment has not yet expired shall be returned to the committing court as soon as practicable after the 15th day following the date on which the parties received service on any report filed under Article 46B.080(b) regarding the defendant's ability to attain competency, except that, if a party objects to the findings of the report and the issue is set for a hearing under Article 46B.084, the defendant may not be returned to the committing court earlier than 72 hours before the date the hearing is scheduled.]

Art. 46B.080. EXTENSION OF ORDER. (a) On a request of the head of a facility or a treatment program provider that is made under Article 46B.079(d) and notwithstanding any other provision of this subchapter, the court may enter an order extending the initial restoration period for an additional period of 60 days.

(b) The court may enter an order under Subsection (a) only if the court determines that, on the basis of information provided by the head of the facility or the treatment program provider:

(1) the defendant has not attained competency; and

(2) an extension of the restoration period will likely enable the facility or program to restore the defendant to competency.

(c) The court may grant only one extension under this article for a period of restoration ordered under this subchapter [NOTICE TO COMMITTING COURT. (a) The head of a facility to which a defendant has been committed under this subchapter, not later than the 14th day before the date on which a commitment order is to expire, shall notify the committing court that the term of the commitment is about to expire.

[(b) The head of the facility to which a defendant has been committed under this subchapter shall promptly notify the committing court when the head of the facility is of the opinion that:

[(1) the defendant has attained competency to stand trial; or

[(2) the defendant will not attain competency in the foreseeable future.

[(c) When the head of the facility gives notice to the court under Subsection (a) or (b), the head of the facility also shall file a final report with the court stating the reason for the proposed discharge under this chapter and including a list of the types and dosages of medications with which the defendant was treated for mental illness while in the facility. The court shall provide copies of the report to the attorney representing the defendant and the attorney representing the state.

[(d) If the head of the facility to which the defendant has been committed notifies the court that the commitment order is about to expire, the notice may contain a request for an extension of the commitment order for a period of 60 days and an explanation for the basis of the request].

Art. 46B.081. RETURN TO COURT. Subject to Article 46B.082(b), a defendant committed or released on bail under this subchapter shall be returned to the applicable court as soon as practicable after notice to the court is provided under Article 46B.079, but not later than the date of expiration of the period for restoration specified by the court under Article 46B.072 or 46B.073 [EXTENSION OF COMMITMENT ORDER. (a) On the request of the head of a facility made under Article 46B.080(d), the court may enter an order extending the term of the commitment order for a period of 60 days.

[(b) The court may enter an order under Subsection (a) only if the court determines that, on the basis of information provided by the head of the facility:

[(1)the defendant has not attained competency; and

[(2) an extension of the term of the commitment order will likely enable the facility to restore the defendant to competency.

[(c) the court may grant only one extension under this article for the term of a defendant's commitment order].

Art. 46B.082. TRANSPORTATION OF DEFENDANT. (a) On notification from the [committing] court under Article 46B.078, the sheriff of the county in which the [committing] court is located or the sheriff's designee shall transport the defendant to the [committing] court.

(b) If before the 15th day after the date on which the court received notification under Article 46B.079 a defendant committed to a [maximum security unit of a] facility of the department or ordered to participate in an outpatient treatment program has not been transported to the court that issued the order under Article 46B.072 or 46B.073, as applicable [from the unit before the 15th day after the date on which the court received notification under Article 46B.080(a)], the head of the [that] facility to which the defendant is committed or the provider of the outpatient treatment program in which the defendant is participating shall cause the defendant to be promptly transported to the [committing] court and placed in the custody of the sheriff of the county in which the [committing] court is located. The county in which the [committing] court is located shall reimburse the department for the mileage and per diem expenses of the personnel required to transport the defendant, calculated in accordance with rates provided in the General Appropriations Act for state employees.

Art. 46B.083. SUPPORTING COMMITMENT INFORMATION PROVIDED BY FACILITY HEAD OR OUTPATIENT TREATMENT PROGRAM PROVIDER. (a) If the head of the facility or outpatient treatment program provider believes that the defendant is a person with mental illness and meets the criteria for court-ordered [inpatient] mental health services under Subtitle C, Title 7, Health and Safety Code, the head of the facility or the outpatient treatment program provider shall have submitted to the court a certificate of medical examination for mental illness.

(b) If the head of the facility or the outpatient treatment program provider believes [is of the opinion] that the defendant is a person with mental retardation, the head of the facility or the outpatient treatment program provider shall have submitted to the court an affidavit stating the conclusions reached as a result of the examination.

SECTION 8. Subsections (a) and (b-1), Article 46B.084, Code of Criminal Procedure, are amended to read as follows:

(a) On the return of a defendant to the [committing] court, the court shall make a determination with regard to the defendant's competency to stand trial. The court may make the determination based solely on the report filed under Article 46B.079(c) [46B.080(c)], unless any party objects in writing or in open court to the findings of the report not later than the 15th day after the date on which the court received notification under Article 46B.079 [report is served on the parties]. The court shall make the determination not later than the 20th day after the date on which the court received notification under Article 46B.079, regardless of whether a party objects to the report as described by this subsection and the issue is set for hearing under Subsection (b).

(b-1) If the hearing is before the court, the hearing may be conducted by means of an electronic broadcast system as provided by Article 46B.013. Notwithstanding any other provision of this chapter, the defendant is not required to be returned to the [committing] court with respect to any hearing that is conducted under this article in the manner described by this subsection.

SECTION 9. Articles 46B.085 and 46B.086, Code of Criminal Procedure, are amended to read as follows:

Art. 46B.085. SUBSEQUENT RESTORATION PERIODS [COMMITMENTS] AND EXTENSIONS OF THOSE PERIODS PROHIBITED. (a) The court may order only one initial period of restoration [commitment] and one extension under this subchapter in connection with the same offense.

(b) After an initial restoration period [a commitment] and an extension are ordered as described by Subsection (a), any subsequent court orders for treatment must be issued under Subchapter E or F.

Art. 46B.086. COURT-ORDERED MEDICATIONS. (a) This article applies only to a defendant:

(1) who is determined under this chapter to be incompetent to stand trial;

(2) for whom an inpatient mental health facility, residential care facility, or outpatient treatment program provider has prepared a continuity of care plan [has been prepared by a facility] that requires the defendant to take psychoactive medications; and

(3) who, after a hearing held under Section 574.106, Health and Safety Code, has been found not to meet the criteria prescribed by Sections 574.106(a) and (a-1), Health and Safety Code, for court-ordered administration of psychoactive medications; or

(4) who is subject to Article 46B.072.

(b) If a defendant described by Subsection (a) refuses to take psychoactive medications as required by the defendant's continuity of care plan, the director of the correctional facility or outpatient treatment provider shall notify the court in which the criminal proceedings are pending of that fact not later than the end of the next business day following the refusal. The court shall promptly notify the attorney representing the state and the attorney representing the defendant of the defendant's refusal. The attorney representing the state may file a written motion to compel medication. The motion to compel medication must be filed not later than the 15th day after the date a judge issues an order stating that the defendant does not meet the criteria for court-ordered administration of psychoactive medications under Section 574.106, Health and Safety Code. The motion to compel medication for a defendant in an outpatient treatment program may be filed at any time.

(c) The court, after notice and after a hearing held not later than the fifth day after the defendant is returned to the committing court, may authorize the director of a correctional facility or the program provider, as applicable, to have the medication administered to the defendant, by reasonable force if necessary.

(d) [(c)] The court may issue an order under this article only if the order is supported by the testimony of two physicians, one of whom is the physician at or with the applicable correctional facility or outpatient treatment program who is prescribing the medication as a component of the defendant's continuity of care plan and another who is not otherwise involved in proceedings against the defendant. The court may require either or both physicians to examine the defendant and report on the examination to the court.

(e) [(d)] The court may issue an order under this article if the court finds by clear and convincing evidence that:

(1) the prescribed medication is medically appropriate, is in the best medical interest of the defendant, and does not present side effects that cause harm to the defendant that is greater than the medical benefit to the defendant;

(2) the state has a clear and compelling interest in the defendant obtaining and maintaining competency to stand trial;

(3) no other less invasive means of obtaining and maintaining the defendant's competency exists; and

(4) the prescribed medication will not unduly prejudice the defendant's rights or use of defensive theories at trial.

(f) [(e)] A statement made by a defendant to a physician during an examination under Subsection (d) [(c)] may not be admitted against the defendant in any criminal proceeding, other than at:

(1) a hearing on the defendant's incompetency; or

(2) any proceeding at which the defendant first introduces into evidence the contents of the statement.

SECTION 10. Article 46B.102, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.102. CIVIL COMMITMENT HEARING: MENTAL ILLNESS. (a) If it appears to the court that the defendant may be a person with mental illness, the court shall hold a hearing to determine whether the defendant should be court-ordered to mental health services under Subtitle C, Title 7, Health and Safety Code [committed to a mental health facility].

(b) Proceedings for commitment of the defendant to court-ordered mental health services [a metal heath facility] are governed by Subtitle C, Title 7, Health and Safety Code, to the extent that Subtitle C applies and does not conflict with this chapter, except that the criminal court shall conduct the proceedings whether or not the criminal court is also the county court.

(c) If the court enters an order committing the defendant to a mental health facility, the defendant shall be:

(1) treated in conformity with Subtitle C, Title 7, Health and Safety Code, except as otherwise provided by this chapter; and

(2) released in conformity with Article 46B.107.

(d) In proceedings conducted under this subchapter for a defendant described by Subsection (a):

(1) an application for court-ordered temporary or extended mental health services may not be required;

(2) the provisions of Subtitle C, Title 7, Health and Safety Code, relating to notice of hearing do not apply; and

(3) appeals from the criminal court proceedings are to the court of appeals as in the proceedings for court-ordered inpatient mental health services under Subtitle C, Title 7, Health and Safety Code.

SECTION 11. Subsection (d), Article 46B.103, Code of Criminal Procedure, is amended to read as follows:

(d) In the proceedings conducted under this subchapter for a defendant described by Subsection (a):

(1) an application [for court-ordered temporary or extended mental health services or] to have the defendant declared a person with mental retardation may not be required;

(2) the provisions of Subtitle [Subtitles C and] D, Title 7, Health and Safety Code, relating to notice of hearing do not apply; and

(3) appeals from the criminal court proceedings are to the court of appeals as in the proceedings for [court-ordered inpatient mental health services under Subtitle C, Title 7, Health and Safety Code, or for] commitment to a residential care facility under Subtitle D, Title 7, Health and Safety Code.

SECTION 12. Article 46B.104, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.104. CIVIL COMMITMENT PLACEMENT: FINDING OF VIOLENCE. A defendant committed to a facility as a result of proceedings initiated under this chapter shall be committed to the maximum security unit of any facility designated by the department if:

(1) the defendant is charged with an offense listed in Article 17.032(a), other than an offense listed in Article 17.032(a)(6); or

(2) the indictment charging the offense alleges an affirmative finding under Section 3g(a)(2), Article 42.12.

SECTION 13. Article 46B.106, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.106. CIVIL COMMITMENT PLACEMENT: NO FINDING OF VIOLENCE. (a) A defendant committed to a facility as a result of the proceedings initiated under this chapter, other than a defendant described by Article 46B.104, shall be committed to:

(1) a facility designated by the department; or

(2) an outpatient treatment program [local mental health authority or local mental retardation authority to serve the catchment area in which the committing court is located].

(b) A facility or outpatient treatment program may not refuse to accept a placement ordered under this article on the grounds that criminal charges against the defendant are pending.

SECTION 14. Article 46B.107, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.107. RELEASE OF DEFENDANT AFTER CIVIL COMMITMENT. (a) The release from the department, an outpatient treatment program, or a facility of a defendant committed under this chapter is subject to disapproval by the committing court if the court or the attorney representing the state has notified the head of the facility or outpatient treatment provider, as applicable, to which the defendant has been committed that a criminal charge remains pending against the defendant.

(b) If the head of the facility or outpatient treatment provider to which a defendant has been committed under this chapter determines that the defendant should be released from the facility, the head of the facility or outpatient treatment provider shall notify the committing court and the sheriff of the county from which the defendant was committed in writing of the release not later than the 14th day before the date on which the facility or outpatient treatment provider intends to release the defendant.

(c) The head of the facility or outpatient treatment provider shall provide with the notice a written statement that states an opinion on as to whether the defendant to be released has attained competency to stand trial.

(d) The court may, on motion of the attorney representing the state or on its own motion, hold a hearing to determine whether release is appropriate under the applicable criteria in Subtitle C or D, Title 7, Health and Safety Code. The court may conduct the hearing:

(1) at the facility; or

(2) by means of an electronic broadcast system as provided by Article 46B.013.

(e) If the court determines that release is not appropriate, the court shall enter an order directing the head of the facility or the outpatient treatment provider to not release the defendant.

(f) If an order is entered under Subsection (e), any subsequent proceeding to release the defendant is subject to this article.

SECTION 15. Article 46B.108, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.108. REDETERMINATION OF COMPETENCY. (a) If criminal charges against a defendant found incompetent to stand trial have not been dismissed, the trial court at any time may determine whether the defendant has been restored to competency.

(b) An inquiry into restoration of competency under this subchapter may be made at the request of the head of the mental health facility, outpatient treatment provider, or residential care facility to which the defendant has been committed, the defendant, the attorney representing the defendant, or the attorney representing the state, or may be made on the court's own motion.

SECTION 16. Article 46B.109, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.109. REQUEST BY HEAD OF FACILITY OR OUTPATIENT TREATMENT PROVIDER. (a) The head of a facility or outpatient treatment provider to which a defendant has been committed as a result of a finding of incompetency to stand trial may request the court to determine that the defendant has been restored to competency.

(b) The head of the facility or outpatient treatment provider shall provide with the request a written statement that in their [the] opinion [of the head of the facility] the defendant is competent to stand trial.

SECTION 17. Article 46B.113, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.113. DETERMINATION OF RESTORATION WITHOUT AGREEMENT. (a) The court shall hold a hearing on a request by the head of a facility or outpatient treatment provider to which a defendant has been committed as a result of a finding of incompetency to stand trial to determine whether the defendant has been restored to competency.

(b) The court may hold a hearing on a motion to determine whether the defendant has been restored to competency or on the court's decision on its own motion to inquire into restoration of competency, and shall hold a hearing if a motion and any supporting material establish good reason to believe the defendant may have been restored to competency.

(c) If a court holds a hearing under this article, on the request of the counsel for either party or the motion of the court, a jury shall make the competency determination. If the competency determination will be made by the court rather than a jury, the court may conduct the hearing:

(1) at the facility; or

(2) by means of an electronic broadcast system as provided by Article 46B.013.

(d) If the head of a facility or outpatient treatment provider to which the defendant was committed as a result of a finding of incompetency to stand trial has provided an opinion that the defendant has regained competency, competency is presumed at a hearing under this subchapter and continuing incompetency must be proved by a preponderance of the evidence.

(e) If the head of a facility or outpatient treatment provider has not provided an opinion described by Subsection (d), incompetency is presumed at a hearing under this subchapter and the defendant's competency must be proved by a preponderance of the evidence.

SECTION 18. Article 46B.117, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.117. DISPOSITION ON DETERMINATION OF INCOMPETENCY. [(a)] If a defendant under order of commitment to a facility or outpatient treatment program is found to not have been restored to competency to stand trial, the court shall remand the defendant pursuant to that order of commitment, and, if applicable, order the defendant placed in the custody of the sheriff or the sheriff's designee for transportation back to the facility or outpatient treatment program.

[(b) If a defendant not under order of commitment is found to not have been restored to competency to stand trial, the court shall order the defendant's custody status to remain unchanged.]

SECTION 19. Article 46B.171, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.171. TRANSCRIPTS AND OTHER RECORDS. (a) The court shall order that:

(1) a transcript of all medical testimony received in both the criminal proceedings and the civil commitment proceedings under Subchapter E or F be prepared as soon as possible by the court reporters; and

(2) copies of documents listed in Article 46B.076 accompany the defendant to the mental health facility, outpatient treatment program, or residential care facility.

(b) On the request of the defendant or the attorney representing the defendant, a mental health facility, an outpatient treatment program, or a residential care facility shall provide to the defendant or the attorney copies of the facility's records regarding the defendant.

SECTION 20. Section 574.107, Health and Safety Code, is amended to read as follows:

SEC. 574.107. COSTS. (a) The costs for a hearing [hearings] under this subchapter shall be paid in accordance with Sections 571.017 and 571.018.

(b) The county in which the applicable criminal charges are pending or were adjudicated shall pay as provided by Subsection (a) the costs of a hearing that is held under Section 574.106 to evaluate the court-ordered administration of psychoactive medication to:

(1) a patient ordered to receive inpatient mental health services as described by Section 574.106(a)(1) after having been determined to be incompetent to stand trial or having been acquitted of an offense by reason of insanity; or

(2) a patient who:

(A) is awaiting trial after having been determined to be competent to stand trial; and

(B) was ordered to receive inpatient mental health services as described by Section 574.106(a)(2).

SECTION 21. Subsection (c), Article 46B.084, Code of Criminal Procedure, is repealed.

SECTION 22. (a) Except as provided by Subsection (b) of this section, the change in law made by this Act applies only to a defendant with respect to which any proceeding under Chapter 46B, Code of Criminal Procedure, is conducted on or after the effective date of this Act.

(b) The change in law made by this Act in amending Section 574.107, Health and Safety Code, applies only to a hearing under Section 574.106, Health and Safety Code, that commences on or after the effective date of this Act. A hearing under Section 574.106, Health and Safety Code, that commences before the effective date of this Act is covered by the law in effect when the hearing commenced, and the former law is continued in effect for this purpose.

SECTION 23. This Act takes effect September 1, 2007.