80R5585 KEL-F

By: Van de Putte S.B. No. 1279

A BILL TO BE ENTITLED

AN ACT

relating to procedures occurring after a determination of a defendant's incompetency to stand trial.

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

SECTION 1. Article 46B.001, Code of Criminal Procedure, is amended by adding Subdivision (10) to read as follows:

(10) "Correctional facility" means a facility operated by or on behalf of a county for the confinement of individuals arrested for, charged with, or convicted of a criminal offense. The term includes a county jail.

SECTION 2. Subchapter D, Chapter 46B, Code of Criminal Procedure, is amended to read as follows:

SUBCHAPTER D. PROCEDURES AFTER DETERMINATION OF INCOMPETENCY

Art. 46B.071. OPTIONS ON DETERMINATION OF INCOMPETENCY. On a determination that a defendant is incompetent to stand trial, the court shall:

(1) commit the defendant to a facility or detain the defendant in a correctional facility under Article 46B.073; or

(2) release the defendant on bail under Article 46B.072.

Art. 46B.072. RELEASE ON BAIL. 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 for the purpose of attaining competency to stand trial, the court may release the defendant on bail or continue the defendant's release on bail, subject to conditions reasonably related to assuring public safety and the effectiveness of the defendant's treatment.

Art. 46B.073. COMMITMENT OR DETENTION FOR RESTORATION TO COMPETENCY. (a) This article applies only to a defendant not released on bail.

(b) Except as otherwise provided by this article, the [The] court shall commit a defendant described by Subsection (a) to a mental health facility or residential care facility for a period not to exceed 120 days for further examination and treatment toward the specific objective of restoring [attaining] competency to stand trial.

(b-1) For a period not to exceed 120 days, the court may detain a defendant in a correctional facility and require the defendant to participate in a competency restoration program provided in that facility if:

(1) the correctional facility has sufficient space that is:

(A) separate from the space used by the general population in the facility; and

(B) reserved as the location of a competency restoration program provided in the facility;

(2) the competency restoration program provided in the correctional facility will be administered by the local mental health authority or local mental retardation authority or services for the program will be provided by a community mental health center or mental retardation center, as considered appropriate by the sheriff; and

(3) the defendant will be maintained in the reserved location separate from the general population during the defendant's participation in the competency restoration program.

(c) If the defendant is charged with an offense listed in Article 17.032(a) 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 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:

(1) 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; or

(2) detaining the defendant in a correctional facility and requiring the defendant to participate in a competency restoration program provided in the facility.

Art. 46B.074. COMPETENT TESTIMONY REQUIRED. (a) A defendant may be committed or detained as provided by [to a mental health facility or residential care facility under] this subchapter only on competent medical or psychiatric testimony provided by an expert qualified under Article 46B.022.

(b) The court may allow an expert to substitute the expert's report under Article 46B.025 for any testimony by the expert that may be required under this article.

Art. 46B.075. TRANSFER OF DEFENDANT TO FACILITY. An [A commitment] order issued under Article 46B.073 [this subchapter] must place the defendant in the custody of the sheriff for transportation to the facility or correctional facility 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 detention, as applicable, the court shall send a copy of the order to the facility to which the defendant is committed or detained [not later than the date the defendant is committed to the facility]. The court shall also provide to the applicable facility 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 applicable [proper] facility.

Art. 46B.077. INDIVIDUAL TREATMENT PROGRAM. (a) The facility to which the defendant is committed or the competency restoration program provider in the correctional facility in which the defendant is detained, as applicable, 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 appropriate [the] local mental health [authority] or [to the local] mental retardation entities [authority] on the defendant's progress toward achieving competency.

(b) If the defendant is committed to an inpatient mental health facility or to a residential care facility or is detained in a correctional facility under this subchapter, the mental health or residential care facility or the competency restoration program provider in the correctional facility, as applicable, shall report to the court at least once during the [commitment] period for competency restoration specified by the court under Article 46B.072 or 46B.073. If the defendant is released to a treatment program not provided by an inpatient mental health facility or a residential care facility or in a correctional facility, the treatment program shall report to the court:

(1) not later than the 14th day after the date on which the defendant's treatment begins; and

(2) until the defendant is no longer released to the treatment program, at least once during each 30-day period following the date of the report required by Subdivision (1).

Art. 46B.078. CHARGES SUBSEQUENTLY DISMISSED. If the charges pending against a defendant are dismissed, the applicable [committing] court that entered an order of commitment or detention under Section 46B.073 shall send a copy of the order of dismissal to the sheriff of the county in which that [the committing] court is located and to the head of the facility or the administrator of a competency restoration program in a correctional facility, as appropriate [in which the defendant is held]. On receipt of the copy of the order, the facility or correctional facility shall discharge the defendant into the care of the sheriff for transportation in the manner described by Article 46B.082.

Art. 46B.079. RETURN TO [COMMITTING] COURT. (a) A defendant committed or detained under this subchapter shall be returned to the applicable [committing] court for a hearing as soon as practicable after the date of expiration of [on which] the period for restoration specified by the court under Article 46B.072 or 46B.073 [defendant's term of commitment expires].

(b) A defendant committed or detained under this subchapter whose restoration period [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 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.

Art. 46B.080. NOTICE TO [COMMITTING] COURT. (a) The head of an inpatient mental health [a] facility or of a residential care facility or the administrator of a competency restoration program in a correctional facility, as appropriate [to which a defendant has been committed under this subchapter], not later than the 14th day before the date on which a restoration period [commitment order] is to expire, shall notify the applicable [committing] court that the restoration period [term of the commitment] is about to expire.

(b) The head of the facility or program administrator, as applicable, [to which a defendant has been committed under this subchapter] shall promptly notify the [committing] court when the head of the facility or program administrator believes [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 or program administrator gives notice to the court under Subsection (a) or (b), the head of the facility or program administrator 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 applicable 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 or program administrator [to which the defendant has been committed] notifies the court that the initial restoration period [commitment order] is about to expire, the notice may contain a request for an extension of the period [commitment order] for an additional [a] period of 60 days and an explanation for the basis of the request.

Art. 46B.081. EXTENSION OF [COMMITMENT] ORDER. (a) On a [the] request of the head of a facility or program administrator that is made under Article 46B.080(d) and notwithstanding any other provision of this subchapter, the court may enter an order extending the initial restoration period [term of the commitment order] for an additional [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 or program administrator:

(1) the defendant has not attained competency; and

(2) an extension of the restoration period [term of the commitment order] will likely enable the applicable facility 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 [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 a defendant committed to a maximum security unit of a facility of the department has not been transported from the unit before the 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.

Art. 46B.083. SUPPORTING COMMITMENT INFORMATION PROVIDED BY FACILITY HEAD OR PROGRAM ADMINISTRATOR. (a) If the head of the facility or the administrator of a competency restoration program in a correctional facility 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 program administrator, as applicable, shall have submitted to the court a certificate of medical examination for mental illness.

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

Art. 46B.084. PROCEEDINGS ON RETURN OF DEFENDANT TO COURT. (a) On the return of a defendant to the [committing] court for a hearing, 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.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 report is served on the parties.

(b) If a party objects under Subsection (a), the issue shall be set for a hearing. The hearing is before the court, except that on motion by the defendant, the defense counsel, the prosecuting attorney, or the court, the hearing shall be held before a jury.

(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.

(c) The hearing shall be held within 30 days following the date of objection unless continued for good cause for a period not to exceed 30 days.

(d) If the defendant is found competent to stand trial, criminal proceedings against the defendant may be resumed.

(e) If the defendant is found incompetent to stand trial and if all charges pending against the defendant are not dismissed, the court shall proceed under Subchapter E.

(f) If the defendant is found incompetent to stand trial and if all charges pending against the defendant are dismissed, the court shall proceed under Subchapter F.

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 competency restoration program provider in a correctional facility 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.

(b) If a defendant described by Subsection (a) refuses to take psychoactive medications as required by the defendant's continuity of care plan, the head of the inpatient mental health facility or residential care facility or the competency restoration program provider, as applicable, [director of the correctional facility] 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 date the head or the provider receives notice of that 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 court, after notice and after a hearing held not later than the fifth day after the date the defendant is returned to the committing court or, for a defendant who is detained in a correctional facility, the date that the motion to compel medication was filed, may authorize the head of 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.

(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 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.

(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.

(e) A statement made by a defendant to a physician during an examination under Subsection (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 3. 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.

SECTION 4. This Act takes effect September 1, 2007.