By: Menendez, Hartnett H.B. No. 748

(Senate Sponsor - Van de Putte)

(In the Senate - Received from the House May 13, 2011; May 13, 2011, read first time and referred to Committee on Criminal Justice; May 21, 2011, reported favorably by the following vote: Yeas 6, Nays 0; May 21, 2011, sent to printer.)

A BILL TO BE ENTITLED

AN ACT

relating to a criminal defendant's incompetency to stand trial, to certain related time credits, and to the maximum period allowed for restoration of the defendant to competency.

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

SECTION 1. Section 2(a), Article 42.03, Code of Criminal Procedure, is amended to read as follows:

(a) In all criminal cases the judge of the court in which the defendant is convicted shall give the defendant credit on the defendant's sentence for the time that the defendant has spent:

(1) in jail for the case, including confinement served as described by Article 46B.009 and excluding [other than] confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court; [or]

(2) in a substance abuse treatment facility operated by the Texas Department of Criminal Justice under Section 493.009, Government Code, or another court-ordered residential program or facility as a condition of deferred adjudication community supervision granted in the case if the defendant successfully completes the treatment program at that facility; or

(3) confined in a mental health facility or residential care facility as described by Article 46B.009.

SECTION 2. Article 46B.009, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.009. TIME CREDITS. A court sentencing a person convicted of a criminal offense shall credit to the term of the person's sentence each of the following periods for which [the time] the person may be [is] confined in a mental health facility, residential care facility, or jail:

(1) any period of confinement that occurs pending a determination [trial] under Subchapter C as to the defendant's competency to stand trial; and

(2) any period of confinement that occurs between the date of any initial determination of the defendant's incompetency under that subchapter and the date the person is transported to jail following a final judicial determination that the person has been restored to competency.

SECTION 3. Article 46B.0095, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.0095. MAXIMUM PERIOD OF [FACILITY] COMMITMENT OR OUTPATIENT TREATMENT PROGRAM PARTICIPATION DETERMINED BY MAXIMUM TERM FOR OFFENSE. (a) A defendant may not, under this chapter, be committed to a mental hospital or other inpatient or residential facility, ordered to participate in an outpatient treatment program, or subjected to both inpatient and outpatient treatment for a cumulative period that exceeds the maximum term provided by law for the offense for which the defendant was to be tried, except that if the defendant is charged with a misdemeanor and has been ordered only to participate in an outpatient treatment program under Subchapter D or E, the maximum period of restoration is two years [beginning on the date of the initial order for outpatient treatment program participation was entered].

(b) On expiration of the maximum restoration period under Subsection (a), the mental hospital or other inpatient or residential facility or outpatient treatment program provider identified in the most recent order of commitment or order of outpatient treatment program participation under this chapter shall assess the defendant to determine if civil proceedings under Subtitle C or D, Title 7, Health and Safety Code, are appropriate. The [the] defendant may be confined for an additional period in a mental hospital or other inpatient or residential facility or ordered to participate for an additional period in an outpatient treatment program, as appropriate, only pursuant to civil commitment proceedings.

(c) The cumulative period described by Subsection (a):

(1) begins on the date the initial order of commitment or initial order for outpatient treatment program participation is entered under this chapter; and

(2) includes any time that, following the entry of an order described by Subdivision (1), the defendant is confined in a correctional facility, as defined by Section 1.07, Penal Code, while awaiting:

(A) transfer to a mental hospital or other inpatient or residential facility;

(B) release on bail to participate in an outpatient treatment program; or

(C) a criminal trial following any temporary restoration of the defendant's competency to stand trial.

(d) The court may credit to the cumulative period described by Subsection (a):

(1) any time that a defendant, following arrest for the offense for which the defendant was to be tried, is confined in a correctional facility, as defined by Section 1.07, Penal Code, before the initial order of commitment or initial order for outpatient treatment program participation is entered under this chapter; and

(2) any good conduct time the defendant has been granted under Article 42.032 in relation to the defendant's confinement as described by Subdivision (1).

SECTION 4. Article 46B.010, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.010. MANDATORY DISMISSAL OF MISDEMEANOR CHARGES. If a court orders that a defendant charged with a misdemeanor punishable by confinement be committed to a mental hospital or other inpatient or residential facility, participate in an outpatient treatment program, or be subjected to both inpatient and outpatient treatment, [the commitment of or participation in an outpatient treatment program by a defendant who is charged with a misdemeanor punishable by confinement] and the defendant is not tried before the [date of] expiration of the maximum period of restoration [under this chapter as] described by Article 46B.0095:

(1) on the motion of the attorney representing the state, the court shall dismiss the charge; or

(2) on the motion of the attorney representing the defendant, the court shall:

(A) set the matter to be heard not later than the 10th day after the date of filing of the motion; and

(B) dismiss the charge on a finding that the defendant was not tried before the expiration of the maximum period of restoration[, the court on the motion of the attorney representing the state shall dismiss the charge].

SECTION 5. Section 574.110(b), Health and Safety Code, is amended to read as follows:

(b) An order issued under Section 574.106 for a patient who is returned to a correctional facility, as defined by Section 1.07, Penal Code, to await [awaiting] trial in a criminal proceeding continues to be in effect until the earlier of the following dates, as applicable:

(1) the 180th day after the date the defendant was returned to the correctional facility;

(2) [expires on] the date the defendant is acquitted, is convicted, or enters a plea of guilty; or

(3) the date on which charges in the case are dismissed. [An order continued under this subsection shall be reviewed by the issuing court every six months.]

SECTION 6. (a) Except as provided by Subsection (b) of this section, the change in law made by this Act applies only to a defendant with respect to which any proceeding under Chapter 46B, Code of Criminal Procedure, is conducted on or after the effective date of this Act.

(b) The change in law made by this Act in amending Section 574.110(b), Health and Safety Code, applies only to an order issued under Section 574.106 of that code on or after the effective date of this Act.

SECTION 7. This Act takes effect September 1, 2011.

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