By: Madden (Senate Sponsor - Whitmire) H.B. No. 3907

(In the Senate - Received from the House May 13, 2009; May 14, 2009, read first time and referred to Committee on Criminal Justice; May 22, 2009, reported favorably by the following vote: Yeas 6, Nays 0; May 22, 2009, sent to printer.)

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 amending Subsection (d) and adding Subsection (e) to read as follows:

(d) This article does not prevent [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, as applicable, 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; and

(2) an appropriate prescribed regimen of medical, psychiatric, or psychological care or treatment, including:

(A) care or treatment involving the administration of psychoactive medication, including those required under Article 46B.086; and

(B) if applicable, care or treatment administered in a correctional facility pending release to an outpatient treatment program described by Subdivision (1).

SECTION 3. Article 46B.086, Code of Criminal Procedure, is amended by amending Subsections (a), (b), and (c) and adding Subsection (g) 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 either:

(A) remains confined in a correctional facility, as defined by Section 1.07, Penal Code, for a period exceeding 72 hours while awaiting transfer to an inpatient mental health facility, a residential care facility, or an outpatient treatment program;

(B) is committed to an inpatient mental health facility or a residential care facility for the purpose of competency restoration;

(C) is confined in a correctional facility while awaiting further criminal proceedings following competency restoration treatment; or

(D) is subject to Article 46B.072, if the court has made the determinations required by Subsection (a) of that article;

(3) for whom a correctional facility that employs or contracts with a licensed psychiatrist, 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, if applicable, 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].

(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 program provider, as applicable, 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, except that, [. The motion to compel medication] for a defendant in an outpatient treatment program, the motion 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 the [a] correctional facility or the program provider, as applicable, to have the medication administered to the defendant, by reasonable force if necessary.

(g) For a defendant described by Subsection (a)(2)(A), an order issued under this article:

(1) authorizes the initiation of any appropriate mental health treatment for the defendant awaiting transfer; and

(2) does not constitute authorization to retain the defendant in a correctional facility for competency restoration treatment.

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, before releasing the defendant:

(1) arrange for the release of the defendant during normal business hours, if possible; and

(2) notify the local mental health or mental retardation authority, as applicable, of the impending release.

SECTION 5. Section 574.104, Health and Safety Code, is amended by adding Subsections (a-1) and (a-2) 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.

(a-2) An application filed as described by Subsection (a-1)(2) is subject to the requirements and procedures provided by Article 46B.086, Code of Criminal Procedure. Subsections (b)(3), (c), (d), and (e) do not apply to the application.

SECTION 6. Section 574.106, Health and Safety Code, is amended by amending Subsection (a-1) and adding Subsection (l) to read as follows:

(a-1) The court may issue an order under this section only if the court finds by clear and convincing evidence after the hearing:

(1) that the patient lacks the capacity to make a decision regarding the administration of the proposed medication and treatment with the proposed medication is in the best interest of the patient; or

(2) if the patient was ordered to receive inpatient mental health services by a criminal court with jurisdiction over the patient, that treatment with the proposed medication is in the best interest of the patient and either:

(A) the patient presents a danger to the patient or others in the inpatient mental health facility in which the patient is being treated as a result of a mental disorder or mental defect as determined under Section 574.1065; or

(B) the patient:

(i) has remained confined in a correctional facility, as defined by Section 1.07, Penal Code, for a period exceeding 72 hours while awaiting transfer for competency restoration treatment; and

(ii) presents a danger to the patient or others in the correctional facility as a result of a mental disorder or mental defect as determined under Section 574.1065 [and

[(B) treatment with the proposed medication is in the best interest of the patient].

(l) For a patient described by Subsection (a-1)(2)(B), an order issued under this section:

(1) authorizes the initiation of any appropriate mental health treatment for the patient awaiting transfer; and

(2) does not constitute authorization to retain the patient in a correctional facility for competency restoration treatment.

SECTION 7. Section 574.106(c), Health and Safety Code, is amended to read as follows:

(c) Except as provided by Subsection (d), a [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 who ordered the patient to receive inpatient mental health services in accordance with Chapter 46B, Code of Criminal Procedure [except as provided by Subsection (d)].

SECTION 8. Section 574.1065, Health and Safety Code, is amended to read as follows:

Sec. 574.1065. FINDING THAT PATIENT PRESENTS A DANGER. In making a finding under Section 574.106(a-1)(2) that, as a result of a mental disorder or mental defect, the patient presents a danger to the patient or others in the inpatient mental health facility in which the patient is being treated or in the correctional facility, as applicable, [as a result of a mental disorder or mental defect] the court shall consider:

(1) an assessment of the patient's present mental condition;

(2) whether the patient has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm to the patient's self or to another while in the facility; and

(3) whether the patient, in the six months preceding the date the patient was placed in the facility, has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm to another that resulted in the patient being placed in the facility.

SECTION 9. Section 574.107(b), Health and Safety Code, is amended to read as follows:

(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 10. 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.

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