|
|
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. |