|
|
|
A BILL TO BE ENTITLED
|
|
AN ACT
|
|
relating to the court-ordered administration of psychoactive |
|
medication to certain criminal defendants and to the release of |
|
those defendants from certain facilities. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
SECTION 1. Article 16.22, Code of Criminal Procedure, is |
|
amended by adding Subsections (c-1) through (c-6) and (e) and |
|
amending Subsection (d) to read as follows: |
|
(c-1) Subsections (c-2) through (c-6) apply only to a |
|
defendant who: |
|
(1) is found under this article to be a person who has |
|
a mental illness or a person with mental retardation; |
|
(2) refuses to take psychoactive medications as |
|
required by any applicable continuing care plan or continuity of |
|
care plan; and |
|
(3) after a hearing held under Section 574.106, Health |
|
and Safety Code, has been found to not meet the criteria prescribed |
|
by Sections 574.106(a) and (a-1), Health and Safety Code, for |
|
court-ordered administration of psychoactive medications. |
|
(c-2) If a defendant described by Subsection (c-1) refuses |
|
to take psychoactive medications as required by the defendant's |
|
continuing care plan or continuity of care plan, the director of the |
|
correctional facility or the outpatient treatment provider, as |
|
applicable, shall notify the magistrate of that fact not later than |
|
the end of the business day immediately following the date of the |
|
refusal. The magistrate promptly shall 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. |
|
(c-3) The magistrate, after notice and after a hearing held |
|
not later than the fifth day after the filing of a written motion to |
|
compel medication, 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. |
|
(c-4) The magistrate may issue an order under Subsection |
|
(c-3) only if the order is supported by the testimony of two |
|
physicians, one of whom is the physician who is prescribing the |
|
medication as a component of the defendant's continuing care plan |
|
or continuity of care plan and another who is not otherwise involved |
|
in proceedings against the defendant. The magistrate may require |
|
either or both physicians to examine the defendant and report on the |
|
examination to the magistrate. |
|
(c-5) The magistrate may issue an order under Subsection |
|
(c-3) only if the magistrate finds by clear and convincing evidence |
|
that the prescribed medication: |
|
(1) 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; and |
|
(2) will not unduly prejudice the defendant's rights |
|
or use of defensive theories at trial. |
|
(c-6) A statement made by a defendant to a physician during |
|
an examination under Subsection (c-4) may not be admitted against |
|
the defendant in any criminal proceeding, other than at: |
|
(1) a hearing on the defendant's incompetency under |
|
Chapter 46B; or |
|
(2) any proceeding at which the defendant first |
|
introduces into evidence the contents of the statement. |
|
(d) Nothing in this article prevents the court from, pending |
|
an evaluation of the defendant as described by this article: |
|
(1) subject to Subsection (e), 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. |
|
(e) If a sheriff releases a defendant who is a person with |
|
mental illness or mental retardation from custody, except on final |
|
disposition of the criminal proceedings, the sheriff must, before |
|
releasing the person: |
|
(1) notify the local mental health or mental |
|
retardation authority of the impending release; and |
|
(2) if possible, arrange for the release of the person |
|
during normal business hours. |
|
SECTION 2. Article 46B.072(d), Code of Criminal Procedure, |
|
is amended to read as follows: |
|
(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, including an outpatient treatment |
|
program operated in a correctional facility by a local mental |
|
health authority or local mental retardation authority; 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 Article 46B.086. |
|
SECTION 3. Article 46B.086(a), Code of Criminal Procedure, |
|
is amended to read as follows: |
|
(a) This article applies only to a defendant: |
|
(1) who is determined under this chapter to be |
|
incompetent to stand trial; |
|
(2) who is confined in a correctional facility while |
|
awaiting transfer to an inpatient mental health facility or a |
|
residential care facility or who has been released on bail to an |
|
outpatient treatment program; |
|
(3) for whom an inpatient mental health facility, a |
|
residential care facility, or an outpatient treatment program |
|
provider has prepared a continuity of care plan that requires the |
|
defendant to take psychoactive medications; and |
|
(4) [(3)] who, after a hearing held under Section |
|
574.106, Health and Safety Code, by either a court having probate |
|
jurisdiction or the court in which the criminal matter is pending, |
|
has been found to 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]. |
|
SECTION 4. Subchapter D, Chapter 46B, Code of Criminal |
|
Procedure, is amended by adding Article 46B.087 to read as follows: |
|
Art. 46B.087. ORDER OF RELEASE: CONTINUATION OF TREATMENT. |
|
If a defendant is released under Article 46B.0095 or 46B.010, the |
|
court ordering the defendant's release shall consider whether the |
|
defendant could benefit from continued treatment. If the court |
|
finds that the defendant could benefit from continued treatment, |
|
the court shall include in the order of release a requirement that |
|
the sheriff release the defendant during normal business hours and |
|
notify the local mental health authority or local mental |
|
retardation authority, as applicable, before releasing the |
|
defendant. |
|
SECTION 5. Section 574.104, Health and Safety Code, is |
|
amended by adding Subsection (a-1) to read as follows: |
|
(a-1) A physician who is treating a patient ordered to |
|
receive inpatient mental health services after having been |
|
determined to be incompetent to stand trial may: |
|
(1) proceed under Subsection (a); or |
|
(2) file, in the court in which the criminal matter is |
|
pending, an application for an order to authorize the |
|
administration of a psychoactive medication, regardless of the |
|
patient's refusal if: |
|
(A) the physician believes that the patient lacks |
|
the capacity to make a decision regarding the administration of the |
|
psychoactive medication; |
|
(B) the physician determines that the medication |
|
is the proper course of treatment for the patient; and |
|
(C) the patient, verbally or by other indication, |
|
refuses to take the medication. |
|
SECTION 6. Section 574.106(c), Health and Safety Code, is |
|
amended to read as follows: |
|
(c) A hearing under this subchapter shall be conducted on |
|
the record by the probate judge, a [or] judge with probate |
|
jurisdiction, or, if applicable, the judge of a criminal court with |
|
jurisdiction over the patient, except as provided by Subsection |
|
(d). |
|
SECTION 7. This Act takes effect immediately if it receives |
|
a vote of two-thirds of all the members elected to each house, as |
|
provided by Section 39, Article III, Texas Constitution. If this |
|
Act does not receive the vote necessary for immediate effect, this |
|
Act takes effect September 1, 2009. |