By: Duncan S.B. No. 867

A BILL TO BE ENTITLED

AN ACT

relating to procedures regarding certain 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 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 disinterested 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 resume:

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

(2) 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.

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 COMMITMENT DETERMINED BY MAXIMUM TERM FOR OFFENSE. A defendant may not be committed to a mental hospital or other inpatient 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 inpatient or residential facility only pursuant to civil commitment proceedings.

SECTION 3. Article 46B.079(b), Code of Criminal Procedure, is amended to read as follows:

(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 10th [15th] day following the date on which the parties receive 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.

SECTION 4. Article 46B.082(b), Code of Criminal Procedure, is amended to read as follows:

(b) If a defendant committed to a [maximum security unit of a] facility of the department has not been transported from the facility [unit] before the 10th [15th] day after the date on which the court received notification under Article 46B.080(a), the head of that facility 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.

SECTION 5. Article 46B.084(c), Code of Criminal Procedure, is amended to read as follows:

(c) The hearing shall be held not later than the 20th day after [within 30 days following] the date of objection unless continued for good cause for a period not to exceed 20 [30] days.

SECTION 6. Subchapter E, Chapter 46B, Code of Criminal Procedure, is amended by adding Article 46B.1035 to read as follows:

Art. 46B.1035. APPLICATION OF OTHER LAW. (a) In proceedings conducted under this subchapter for a defendant described by Article 46B.102(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.

(b) In proceedings conducted under this subchapter for a defendant described by Article 46B.103(a):

(1) an application to have the defendant declared a person with mental retardation may not be required;

(2) the provisions of Subtitle 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 commitment to a residential care facility under Subtitle D, Title 7, Health and Safety Code.

SECTION 7. Section 571.018(a), Health and Safety Code, is amended to read as follows:

(a) The costs for a hearing or proceeding under this subtitle, other than a hearing regarding the court-ordered administration of psychoactive medication to a person awaiting trial or acquitted in a criminal case as described by Section 574.107, shall be paid by:

(1) the county that initiates emergency detention procedures under Subchapter A or B, Chapter 573; or

(2) if no emergency detention procedures are initiated, the county that accepts an application for court-ordered mental health services, issues an order for protective custody, or issues an order for temporary mental health services.

SECTION 8. Section 574.107, Health and Safety Code, is amended to read as follows:

Sec. 574.107. COSTS. The costs for a hearing [hearings] under this subchapter shall be paid in accordance with Sections 571.017 and 571.018, except that the county in which the applicable criminal charges are pending or were adjudicated shall pay 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 acquitted of an offense by reason of insanity; or

(2) a patient awaiting trial and ordered to receive inpatient mental health services as described by Section 574.106(a)(2).

SECTION 9. Article 46B.103(d), Code of Criminal Procedure, is repealed.

SECTION 10. (a) Except as provided by Subsection (b) of this section, the change in law made by this Act applies only to a defendant charged with an offense committed on or after the effective date of this Act. A defendant charged with 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.

(b) The change in law made by this Act in amending Sections 571.018(a) and 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 11. This Act takes effect September 1, 2007.