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A BILL TO BE ENTITLED
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AN ACT
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relating to the early identification of criminal defendants who are |
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or may be persons with mental illness or mental retardation. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 16.22, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 16.22. EARLY IDENTIFICATION [EXAMINATION AND
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TRANSFER] OF DEFENDANT SUSPECTED OF HAVING MENTAL ILLNESS OR MENTAL |
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RETARDATION. (a)(1) Not later than 72 hours after receiving |
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credible information [evidence or a statement] that may establish |
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reasonable cause to believe that a defendant committed to the |
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sheriff's custody has a mental illness or is a person with mental |
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retardation, including observation of the defendant's behavior |
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immediately before, during, and after the defendant's arrest and |
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the results of any previous assessment of the defendant, the |
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sheriff shall provide written or electronic notice of the |
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information to the [notify a] magistrate [of that fact]. [A
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defendant's behavior or the result of a prior evaluation indicating
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a need for referral for further mental health or mental retardation
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assessment must be considered in determining whether reasonable
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cause exists to believe the defendant has a mental illness or is a
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person with mental retardation.] On a determination that there is |
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reasonable cause to believe that the defendant has a mental illness |
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or is a person with mental retardation, the magistrate, except as |
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provided by Subdivision (2), shall order [an examination of the
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defendant by] the local mental health or mental retardation |
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authority or another qualified mental health or mental retardation |
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expert to: |
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(A) collect information regarding [determine] |
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whether the defendant has a mental illness as defined by Section |
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571.003, Health and Safety Code, or is a person with mental |
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retardation as defined by Section 591.003, Health and Safety Code, |
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including information obtained from any previous assessment of the |
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defendant; and |
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(B) provide to the magistrate a written |
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assessment of the information collected under Paragraph (A). |
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(2) The magistrate is not required to order the |
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collection of information under [an examination described by] |
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Subdivision (1) if the defendant in the year preceding the |
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defendant's applicable date of arrest has been [evaluated and] |
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determined to have a mental illness or to be a person with mental |
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retardation by the local mental health or mental retardation |
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authority or another mental health or mental retardation expert |
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described by Subdivision (1). A court that elects to use the |
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results of that previous determination [evaluation] may proceed |
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under Subsection (c). |
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(3) If the defendant fails or refuses to submit to the |
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collection of information regarding the defendant as [an
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examination] required under Subdivision (1), the magistrate may |
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order the defendant to submit to an examination in a mental health |
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facility determined to be appropriate by the local mental health or |
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mental retardation authority for a reasonable period not to exceed |
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21 days. The magistrate may order a defendant to a facility |
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operated by the Department of State Health Services or the |
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Department of Aging and Disability Services for examination only on |
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request of the local mental health or mental retardation authority |
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and with the consent of the head of the facility. If a defendant |
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who has been ordered to a facility operated by the Department of |
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State Health Services or the Department of Aging and Disability |
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Services for examination remains in the facility for a period |
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exceeding 21 days, the head of that facility shall cause the |
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defendant to be immediately transported to the committing court and |
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placed in the custody of the sheriff of the county in which the |
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committing court is located. That county shall reimburse the |
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facility for the mileage and per diem expenses of the personnel |
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required to transport the defendant calculated in accordance with |
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the state travel regulations in effect at the time. |
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(b) A written assessment of the information collected under |
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Subsection (a)(1)(A) [report of the examination] shall be provided |
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[submitted] to the magistrate not later than the 30th day after the |
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date of any order [of examination] issued under Subsection (a) in a |
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felony case and not later than the 10th day after the date of any |
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order [of examination] issued under that subsection in a |
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misdemeanor case, and the magistrate shall provide copies of the |
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written assessment [report] to the defense counsel, [and] the |
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prosecuting attorney, and the trial court. The written assessment |
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[report] must include a description of the procedures used in the |
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collection of information under Subsection (a)(1)(A) [examination] |
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and the applicable expert's [examiner's] observations and findings |
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pertaining to: |
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(1) whether the defendant is a person who has a mental |
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illness or is a person with mental retardation; |
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(2) whether there is clinical evidence to support a |
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belief that the defendant may be incompetent to stand trial and |
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should undergo a complete competency examination under Subchapter |
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B, Chapter 46B; and |
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(3) recommended treatment. |
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(c) After the trial court receives the applicable |
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[examining] expert's written assessment [report] relating to the |
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defendant under Subsection (b) or elects to use the results of a |
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previous determination as [an evaluation] described by Subsection |
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(a)(2), the trial court may, as applicable: |
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(1) resume criminal proceedings against the |
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defendant, including any appropriate proceedings related to the |
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defendant's release on personal bond under Article 17.032; [or] |
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(2) resume or initiate competency proceedings, if |
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required, as provided by Chapter 46B or other proceedings affecting |
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the defendant's receipt of appropriate court-ordered mental health |
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or mental retardation services, including proceedings related to |
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the defendant's receipt of outpatient mental health services under |
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Section 574.034, Health and Safety Code; or |
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(3) consider the written assessment during the |
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punishment phase after a conviction of the offense for which the |
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defendant was arrested, as part of a presentence investigation |
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report, or in connection with the impositions of conditions |
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following placement on community supervision, including deferred |
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adjudication community supervision. |
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(d) This article does not prevent [Nothing in this article
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prevents] the applicable court from, before, during, or after the |
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collection of information regarding the defendant [pending an
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evaluation of the defendant] as described by this article: |
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(1) releasing a mentally ill or mentally retarded |
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defendant from custody on personal or surety bond; or |
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(2) ordering an examination regarding the defendant's |
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competency to stand trial. |
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SECTION 2. Subsection (b), Article 17.032, Code of Criminal |
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Procedure, is amended to read as follows: |
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(b) A magistrate shall release a defendant on personal bond |
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unless good cause is shown otherwise if the: |
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(1) defendant is not charged with and has not been |
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previously convicted of a violent offense; |
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(2) defendant is examined by the local mental health |
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or mental retardation authority or another mental health expert |
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under Article 16.22 of this code; |
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(3) applicable [examining] expert, in a written |
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assessment [report] submitted to the magistrate under Article |
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16.22: |
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(A) concludes that the defendant has a mental |
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illness or is a person with mental retardation and is nonetheless |
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competent to stand trial; and |
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(B) recommends mental health treatment for the |
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defendant; and |
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(4) magistrate determines, in consultation with the |
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local mental health or mental retardation authority, that |
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appropriate community-based mental health or mental retardation |
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services for the defendant are available through the Texas |
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Department of Mental Health and Mental Retardation under Section |
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534.053, Health and Safety Code, or through another mental health |
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or mental retardation services provider. |
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SECTION 3. Subsection (d), Section 11, Article 42.12, Code |
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of Criminal Procedure, is amended to read as follows: |
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(d) If the judge places a defendant on community supervision |
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and the defendant is determined to have a mental illness or be a |
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person with mental retardation as provided by [an examining expert
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under] Article 16.22 or Chapter 46B or in a psychological |
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evaluation conducted under Section 9(i) of this article, the judge |
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may require the defendant as a condition of community supervision |
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to submit to outpatient or inpatient mental health or mental |
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retardation treatment if the: |
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(1) defendant's: |
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(A) mental impairment is chronic in nature; or |
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(B) ability to function independently will |
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continue to deteriorate if the defendant does not receive mental |
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health or mental retardation services; and |
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(2) judge determines, in consultation with a local |
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mental health or mental retardation services provider, that |
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appropriate mental health or mental retardation services for the |
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defendant are available through the Texas Department of Mental |
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Health and Mental Retardation under Section 534.053, Health and |
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Safety Code, or through another mental health or mental retardation |
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services provider. |
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SECTION 4. The change in law made by this Act applies only |
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to a defendant charged with an offense committed on or after the |
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effective date of this Act. A defendant charged with an offense |
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committed before the effective date of this Act is covered by the |
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law in effect when the offense was committed, and the former law is |
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continued in effect for that purpose. For purposes of this section, |
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an offense was committed before the effective date of this Act if |
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any element of the offense occurred before that date. |
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SECTION 5. This Act takes effect September 1, 2009. |
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