82R5796 KEL-D
 
  By: Coleman H.B. No. 2159
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the insanity defense in a criminal case.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 8.01(a), Penal Code, is amended to read
  as follows:
         (a)  It is an affirmative defense to prosecution that, at the
  time of the commission of the acts constituting the offense, the
  defendant, as a result of a severe mental disease or defect, was
  unable to appreciate the nature and quality or the wrongfulness of
  his or her acts [conduct charged, the actor, as a result of severe
  mental disease or defect, did not know that his conduct was wrong].
         SECTION 2.  Chapter 46C, Code of Criminal Procedure, is
  amended by adding Subchapter G to read as follows:
  SUBCHAPTER G.  PROVISIONS APPLICABLE TO PERSONS ACQUITTED BY REASON
  OF INSANITY UNDER THIS CHAPTER OR PRIOR LAW
         Art. 46C.301.  APPLICABILITY OF SUBCHAPTER.  This subchapter
  applies to a person acquitted by reason of insanity under this
  chapter or under former Article 46.03, as that article existed
  before September 1, 2005.
         SECTION 3.  Articles 46C.002, 46C.268, and 46C.269, Code of
  Criminal Procedure, are transferred to Subchapter G, Chapter 46C,
  Code of Criminal Procedure, as added by this Act, redesignated as
  Articles 46C.302, 46C.303, and 46C.304, Code of Criminal Procedure,
  respectively, and amended to read as follows:
         Art. 46C.302 [46C.002].  MAXIMUM PERIOD OF COMMITMENT
  DETERMINED BY MAXIMUM TERM FOR OFFENSE. (a)  A person acquitted by
  reason of insanity may not be committed to a mental hospital or
  other inpatient or residential care facility or ordered to receive
  outpatient or community-based treatment and supervision under
  Subchapter F or under former Article 46.03, as applicable, for a
  cumulative period that exceeds the maximum term provided by law for
  the offense for which the acquitted person was tried.
         (b)  On expiration of that maximum term, the acquitted person
  may be further confined in a mental hospital or other inpatient or
  residential care facility or ordered to receive outpatient or
  community-based treatment and supervision only under civil
  commitment proceedings.
         Art. 46C.303 [46C.268].  ADVANCE DISCHARGE OF ACQUITTED
  PERSON AND TERMINATION OF JURISDICTION. (a)  A [An acquitted]
  person acquitted by reason of insanity, the head of the facility to
  which the acquitted person is committed, the person responsible for
  providing the outpatient or community-based treatment and
  supervision, or the state may request that the court discharge an
  acquitted person from inpatient commitment or outpatient or
  community-based treatment and supervision.
         (b)  Not later than the 14th day after the date of the
  request, the court shall hold a hearing on a request made by the
  head of the facility to which the acquitted person is committed or
  the person responsible for providing the outpatient or
  community-based treatment and supervision.
         (c)  If a request is made by an acquitted person, the court
  must act on the request not later than the 14th day after the date of
  the request.  A hearing under this subsection is at the discretion
  of the court, except that the court shall hold a hearing if the
  request and any accompanying material indicate that modification of
  the order may be appropriate.
         (d)  If a request is made by an acquitted person not later
  than the 90th day after the date of a hearing on a previous request,
  the court is not required to act on the request except on the
  expiration of the order or on the expiration of the 90-day period
  following the date of the hearing on the previous request.
         (e)  The court shall rule on the request during or shortly
  after any hearing that is held and in any case not later than the
  14th day after the date of the request.
         (f)  The court shall discharge the acquitted person from all
  court-ordered commitment and treatment and supervision and
  terminate the court's jurisdiction over the person if the court
  finds that the acquitted person has established by a preponderance
  of the evidence that:
               (1)  the acquitted person does not have a severe mental
  illness or mental retardation; or
               (2)  the acquitted person is not likely to cause
  serious harm to another because of any severe mental illness or
  mental retardation.
         Art. 46C.304 [46C.269].  TERMINATION OF COURT'S
  JURISDICTION. (a)  The jurisdiction of the court over a person
  acquitted by reason of insanity [covered by this subchapter]
  automatically terminates on the date when the cumulative total
  period of institutionalization and outpatient or community-based
  treatment and supervision imposed under Subchapter F or under
  former Article 46.03, as applicable, [this subchapter] equals the
  maximum term of imprisonment provided by law for the offense of
  which the person was acquitted [by reason of insanity].
         (b)  On the termination of the court's jurisdiction under
  this article, the acquitted person must be discharged from any
  inpatient treatment or residential care or outpatient or
  community-based treatment and supervision ordered under Subchapter
  F or under former Article 46.03, as applicable [this subchapter].
         (c)  The [An] inpatient or residential care facility to which
  the acquitted [a] person has been committed [under this subchapter]
  or the [a] person responsible for administering a regimen of
  outpatient or community-based treatment and supervision [under
  this subchapter] must notify the court not later than the 30th day
  before the court's jurisdiction over the acquitted person ends
  under this article.
         (d)  This article [subchapter] does not affect whether a
  person may be ordered to receive care or treatment under Subtitle C
  or D, Title 7, Health and Safety Code.
         SECTION 4.  Article 46C.154, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46C.154.  INFORMING JURY REGARDING CONSEQUENCES OF
  ACQUITTAL. The court shall provide instruction to the jury to
  inform the jury of [, the attorney representing the state, or the
  attorney for the defendant may not inform a juror or a prospective
  juror of] the consequences to the defendant if a verdict of not
  guilty by reason of insanity is returned, in substantially the form
  as follows:
         "Under the law applicable in this case, if you find the
  defendant not guilty by reason of insanity, you will be discharged
  and the court will determine the disposition of the defendant.
         "If the court finds that the offense of which the defendant
  was acquitted involved conduct that caused serious bodily injury to
  another person, placed another person in imminent danger of serious
  bodily injury, or consisted of a threat of serious bodily injury to
  another person through the use of a deadly weapon, the court must
  commit the defendant to a maximum-security inpatient facility for a
  mental health evaluation for a period not to exceed 30 days. Based
  upon that evaluation, the defendant may receive continuing mental
  health supervision or treatment for a period not to exceed the
  maximum term of confinement for the offense of which the person was
  acquitted, to be reviewed at least annually by the court, or upon
  request of the defendant, the state, the head of a facility to which
  the defendant is committed, or the person responsible for providing
  outpatient or community-based treatment and supervision. If the
  defendant has not been discharged by the court from mental health
  supervision or treatment before the expiration of that maximum
  term, upon the expiration of that maximum term the defendant must be
  discharged from the criminal jurisdiction of this court. The
  defendant may be further confined or treated after that time only
  under civil commitment proceedings outside the criminal
  jurisdiction of this court.
         "If the court finds that the offense of which the defendant
  was acquitted did not involve the dangerous conduct specified
  above, then the court must determine whether the defendant is a
  person with mental illness or mental retardation. If the court
  finds that the defendant is a person with mental illness or mental
  retardation, then the court must transfer the defendant for civil
  mental health commitment proceedings outside the criminal
  jurisdiction of this court. If the court does not find the defendant
  to be a person with mental illness or mental retardation, then the
  defendant must be discharged.
         "It cannot accurately be predicted how the criminal and civil
  commitment laws might be applied if the defendant is found not
  guilty by reason of insanity because the application of these laws
  will depend upon decisions made by the courts and mental health
  authorities regarding the defendant's mental health needs.
  Therefore, you may consider the existence of the criminal and civil
  commitment laws described herein, but you are not to consider the
  extent to which those laws may be applied to this defendant in
  reaching your verdict."
         SECTION 5.  Article 46C.158, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46C.158.  CONTINUING JURISDICTION OF DANGEROUS
  ACQUITTED PERSON. If the court finds that the offense of which the
  person was acquitted involved conduct that caused serious bodily
  injury to another person, placed another person in imminent danger
  of serious bodily injury, or consisted of a threat of serious bodily
  injury to another person through the use of a deadly weapon, the
  court retains jurisdiction over the acquitted person until either:
               (1)  the court discharges the person and terminates its
  jurisdiction under Article 46C.303 [46C.268]; or
               (2)  the cumulative total period of
  institutionalization and outpatient or community-based treatment
  and supervision under the court's jurisdiction equals the maximum
  term provided by law for the offense of which the person was
  acquitted by reason of insanity and the court's jurisdiction is
  automatically terminated under Article 46C.304 [46C.269].
         SECTION 6.  Article 46C.255(a), Code of Criminal Procedure,
  is amended to read as follows:
         (a)  The following proceedings under this chapter must be
  before the court, and the underlying matter determined by the
  court, unless the acquitted person or the state requests a jury
  trial or the court on its own motion sets the matter for jury trial:
               (1)  a hearing under Article 46C.253;
               (2)  a proceeding for renewal of an order under Article
  46C.261;
               (3)  a proceeding on a request for modification or
  revocation of an order under Article 46C.266; and
               (4)  a proceeding seeking discharge of an acquitted
  person under Article 46C.303 [46C.268].
         SECTION 7.  Article 46C.259, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46C.259.  STATUS OF COMMITTED PERSON. If an acquitted
  person is committed under this subchapter, the person's status as a
  patient or resident is governed by Subtitle C or D, Title 7, Health
  and Safety Code, except that:
               (1)  transfer to a nonsecure unit is governed by
  Article 46C.260;
               (2)  modification of the order to direct outpatient or
  community-based treatment and supervision is governed by Article
  46C.262; and
               (3)  discharge is governed by Article 46C.303 
  [46C.268].
         SECTION 8.  Article 46C.270(b), Code of Criminal Procedure,
  is amended to read as follows:
         (b)  Either the acquitted person or the state may appeal
  from:
               (1)  an Order of Commitment to Inpatient Treatment or
  Residential Care entered under Article 46C.256;
               (2)  an Order to Receive Outpatient or Community-Based
  Treatment and Supervision entered under Article 46C.257 or 46C.262;
               (3)  an order renewing or refusing to renew an Order for
  Inpatient Commitment or Outpatient or Community-Based Treatment
  and Supervision entered under Article 46C.261;
               (4)  an order modifying or revoking an Order for
  Outpatient or Community-Based Treatment and Supervision entered
  under Article 46C.266 or refusing a request to modify or revoke that
  order; or
               (5)  an order discharging an acquitted person under
  Article 46C.303 [46C.268] or denying a request for discharge of an
  acquitted person.
         SECTION 9.  (a)  Except as provided by Subsection (b) of this
  section, the change in law made by this Act applies to a defendant
  acquitted of an offense committed before, on, or after the
  effective date of this Act.
         (b)  The change in law made by this Act in amending Section
  8.01(a), Penal Code, and Article 46C.154, Code of Criminal
  Procedure, applies only to a defendant acquitted of an offense
  committed on or after the effective date of this Act. A defendant
  acquitted of 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 subsection, an offense was committed before the
  effective date of this Act if any element of the offense occurred
  before that date.
         SECTION 10.  This Act takes effect September 1, 2011.