82R4044 KEL-F

By: Hartnett H.B. No. 2725

A BILL TO BE ENTITLED

AN ACT

relating to the determination of incompetency in criminal cases.

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

SECTION 1. Article 46B.001, Code of Criminal Procedure, is amended by adding Subdivision (1-a) to read as follows:

(1-a) "Developmental disability" has the meaning assigned by Section 112.001, Human Resources Code.

SECTION 2. 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 Subchapter D or E or any other provision of 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 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 under Subtitle C or D, Title 7, Health and Safety Code.

(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.

SECTION 3. Article 46B.022(a), Code of Criminal Procedure, is amended to read as follows:

(a) To qualify for appointment under this subchapter as an expert, a psychiatrist or psychologist must:

(1) as appropriate, be a physician licensed in this state or be a psychologist licensed in this state who has a doctoral degree in psychology; and

(2) have the following certification [or experience] or training:

(A) as appropriate, certification by:

(i) the American Board of Psychiatry and Neurology with added or special qualifications in forensic psychiatry; or

(ii) the American Board of Professional Psychology in forensic psychology; or

(B) [experience or] training consisting of[:

[(i)] at least 24 hours of specialized forensic training relating to incompetency or insanity evaluations[;

[(ii) for an appointment made before January 1, 2005, at least five years of experience before January 1, 2004, in performing criminal forensic evaluations for courts; or

[(iii) for an appointment made on or after January 1, 2005, at least five years of experience before January 1, 2004, in performing criminal forensic evaluations for courts and eight or more hours of continuing education relating to forensic evaluations, completed in the 12 months preceding the appointment and documented with the court].

SECTION 4. Article 46B.024, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.024. FACTORS CONSIDERED IN EXAMINATION. During an examination under this subchapter and in any report based on that examination, an expert shall consider, in addition to other issues determined relevant by the expert, the following:

(1) the capacity of the defendant during criminal proceedings to:

(A) rationally understand the charges against the defendant and the potential consequences of the pending criminal proceedings;

(B) disclose to counsel pertinent facts, events, and states of mind;

(C) engage in a reasoned choice of legal strategies and options;

(D) understand the adversarial nature of criminal proceedings;

(E) exhibit appropriate courtroom behavior; and

(F) testify;

(2) as supported by current indications or the defendant's personal history, whether the defendant:

(A) has a [diagnosable] mental illness;

(B) [or] is a person with mental retardation or other developmental disability; or

(C) has any other medical condition that significantly limits the defendant's cognitive functioning;

(3) whether the identified condition has lasted or is expected to last continuously for at least one year;

(4) the degree of impairment resulting from [impact of] the mental illness, [or] mental retardation or other developmental disability, or other cognitive impairment, if existent, and the specific impact on the defendant's capacity to engage with counsel in a reasonable and rational manner; and

(5) [(4)] if the defendant is taking psychoactive or other medication:

(A) whether the medication is necessary to maintain the defendant's competency; and

(B) the effect, if any, of the medication on the defendant's appearance, demeanor, or ability to participate in the proceedings.

SECTION 5. Articles 46B.025(a) and (b), Code of Criminal Procedure, are amended to read as follows:

(a) An expert's report to the court must state an opinion on a defendant's competency or incompetency to stand trial or explain why the expert is unable to state such an opinion and must also:

(1) identify and address specific issues referred to the expert for evaluation;

(2) document that the expert explained to the defendant the purpose of the evaluation, the persons to whom a report on the evaluation is provided, and the limits on rules of confidentiality applying to the relationship between the expert and the defendant;

(3) in specific [general] terms, describe procedures, techniques, and tests used in the examination, [and] the purpose of each procedure, technique, or test, and the conclusions reached; and

(4) state the expert's clinical observations, findings, and opinions on each specific issue referred to the expert by the court, state the specific criteria supporting the expert's diagnosis, and state specifically any issues on which the expert could not provide an opinion.

(b) If in the opinion of an expert appointed under Article 46B.021 the defendant is incompetent to proceed, the expert shall state in the report:

(1) the symptoms, exact nature, severity, and expected duration of the deficits resulting from the defendant's mental illness, [or] mental retardation or other developmental disability, or other cognitive impairment, if any, and the [that] impact of the identified condition on the factors listed in Article 46B.024[, contributing to the defendant's incompetency]; [and]

(2) an estimate of the period needed to restore the defendant's competency, including whether the defendant is likely to be restored to competency in the foreseeable future; and

(3) prospective treatment options and the least restrictive setting in which treatment may be delivered, as [, if any,] appropriate for the defendant.

SECTION 6. Article 46B.071, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.071. OPTIONS ON DETERMINATION OF INCOMPETENCY. (a) Except as provided by Subsection (b), on [On] a determination that a defendant is incompetent to stand trial, the court shall:

(1) commit the defendant to a facility under Article 46B.073; or

(2) release the defendant on bail under Article 46B.072.

(b) On a determination that a defendant is incompetent to stand trial and is unlikely to be restored to competency in the foreseeable future, the court shall:

(1) proceed under Subchapter E or F; or

(2) take other action authorized by law.

SECTION 7. Article 46B.072, Code of Criminal Procedure, is amended by amending Subsections (a), (b), and (c) and adding Subsection (a-1) to read as follows:

(a) This article applies only to a defendant who is subject to an initial restoration period based on Article 46B.071.

(a-1) Subject to conditions reasonably related to assuring public safety and the effectiveness of the defendant's treatment, if the court determines that a defendant found incompetent to stand trial is not a danger to others and may be safely treated on an outpatient basis with the specific objective of attaining competency to stand trial and if an appropriate outpatient treatment program is available for the defendant, the court:

(1) may release on bail a defendant found incompetent to stand trial with respect to a felony or may continue the defendant's release on bail; and

(2) shall release on bail a defendant found incompetent to stand trial with respect to a misdemeanor or shall continue the defendant's release on bail.

(b) The court shall order a defendant released on bail under Subsection (a-1) [(a)] to participate in an outpatient treatment program for a period not to exceed 60 [120] days.

(c) Notwithstanding Subsection (a-1) [(a)], the court may order a defendant to participate in an outpatient treatment program under this article only if:

(1) the court receives and approves a comprehensive plan that:

(A) provides for the treatment of the defendant for purposes of competency restoration; and

(B) identifies the person who will be responsible for providing that treatment to the defendant; and

(2) the court finds that the treatment proposed by the plan will be available to and will be provided to the defendant.

SECTION 8. Articles 46B.073(a) and (b), Code of Criminal Procedure, are amended to read as follows:

(a) This article applies only to a defendant not released on bail who is subject to an initial restoration period based on Article 46B.071.

(b) The court shall commit a defendant described by Subsection (a) to a mental health facility or residential care facility for a period not to exceed 60 [120] days for further examination and treatment toward the specific objective of attaining competency to stand trial.

SECTION 9. Article 46B.076(a), Code of Criminal Procedure, is amended to read as follows:

(a) If the defendant is found incompetent to stand trial, not later than the date of the order of commitment or of release on bail, as applicable, the court shall send a copy of the order to the facility of the department to which the defendant is committed or the outpatient treatment program to which the defendant is released. The court shall also provide to the facility or outpatient treatment program copies of the following made available to the court during the incompetency trial:

(1) reports of each expert;

(2) psychiatric, psychological, or social work reports that relate to the medical [mental] condition of the defendant;

(3) documents provided by the attorney representing the state or the attorney representing the defendant that relate to the defendant's current or past medical [mental] condition;

(4) copies of the indictment or information and any supporting documents used to establish probable cause in the case;

(5) the defendant's criminal history record; and

(6) the addresses of the attorney representing the state and the attorney representing the defendant.

SECTION 10. Article 46B.077, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.077. INDIVIDUAL TREATMENT PROGRAM. (a) The facility to which the defendant is committed or the outpatient treatment program to which the defendant is released on bail shall:

(1) develop an individual program of treatment;

(2) assess and evaluate whether the defendant is likely to be restored to [will obtain] competency in the foreseeable future; and

(3) report to the court and to the local mental health authority or to the local mental retardation authority on the defendant's progress toward achieving competency.

(b) If the defendant is committed to an inpatient mental health facility or to a residential care facility, the facility shall report to the court at least once during the commitment period. If the defendant is released to a treatment program not provided by an inpatient mental health facility or a residential care facility, the treatment program shall report to the court:

(1) not later than the 14th day after the date on which the defendant's treatment begins; and

(2) until the defendant is no longer released to the treatment program, at least once during each 15-day [30-day] period following the date of the report required by Subdivision (1).

SECTION 11. Article 46B.079, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.079. NOTICE AND REPORT TO COURT. (a) The head of the facility or the provider of the outpatient treatment program, as appropriate, not later than the 15th day before the date on which the initial [a] restoration period is to expire, shall notify the applicable court that the [restoration] period is about to expire.

(b) The head of the facility or outpatient treatment program provider shall promptly notify the court when the head of the facility or outpatient treatment program provider believes that:

(1) the defendant has attained competency to stand trial; or

(2) the defendant is not likely to [will not] attain competency in the foreseeable future.

(c) When the head of the facility or outpatient treatment program provider gives notice to the court under Subsection (a) or (b), the head of the facility or outpatient treatment program provider also shall file a final report with the court stating the reason for the proposed discharge under this chapter and including a list of the types and dosages of medications with which the defendant was treated [for mental illness] while in the facility or participating in the outpatient treatment program. To enable any objection to the findings of the report to be made in a timely manner under Article 46B.084(a), the court shall provide copies of the report to the attorney representing the defendant and the attorney representing the state.

(d) If the head of the facility or outpatient treatment program provider notifies the court that the initial restoration period is about to expire, the notice may contain a request for an extension of the period for an additional period of 30 [60] days and an explanation for the basis of the request.

SECTION 12. Articles 46B.080(a) and (b), Code of Criminal Procedure, are amended to read as follows:

(a) On its own motion or the motion of any party [a request of the head of a facility or a treatment program provider that is made under Article 46B.079(d)] and notwithstanding any other provision of this subchapter, the court may enter an order extending the initial restoration period for an additional period of 30 [60] days.

(b) The court may enter an order under Subsection (a) only if the court determines that[, on the basis of information provided by the head of the facility or the treatment program provider]:

(1) the defendant has not attained competency; and

(2) an extension of the initial restoration period will likely enable the facility or program to restore the defendant to competency within the period of the extension.

SECTION 13. Article 46B.080(c), Code of Criminal Procedure, is redesignated as Article 46B.0805, Code of Criminal Procedure, and amended to read as follows:

Art. 46B.0805. SECOND EXTENSION PERMITTED IN CERTAIN CIRCUMSTANCES. [(c)] The court may grant a second [only one] extension with respect to [under this article for] a period of restoration ordered under this subchapter if medical evidence shows a reduction in the severity of the defendant's symptoms or functional impairment.

SECTION 14. Article 46B.084(a), Code of Criminal Procedure, is amended to read as follows:

(a) On the return of a defendant to the court, the court shall make a determination with regard to the defendant's competency to stand trial. The court may make the determination based [solely] on the report filed under Article 46B.079(c) and on other medical information or personal history information relating to the defendant, unless any party objects in writing or in open court to the findings of the report not later than the 15th day after the date on which the court received notification under Article 46B.079. The court shall make the determination not later than the 20th day after the date on which the court received notification under Article 46B.079, regardless of whether a party objects to the report as described by this subsection and the issue is set for hearing under Subsection (b).

SECTION 15. Article 46B.085, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.085. SUBSEQUENT RESTORATION PERIODS AND EXTENSIONS OF THOSE PERIODS PROHIBITED. (a) The court may order only one initial period of restoration and two extensions [one extension] under this subchapter in connection with the same offense.

(b) After an initial restoration period and one or two extensions [an extension] are ordered as described by Subsection (a), any subsequent court orders for treatment must be issued under Subchapter E or F.

SECTION 16. 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 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-1) [(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) who, after a hearing held under Section 574.106, Health and Safety Code, if applicable, 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.

SECTION 17. Article 46B.101, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.101. APPLICABILITY. This subchapter applies to a defendant against whom a court is required to proceed according to [under] Article 46B.084(e) or according to the court's appropriate determination under Article 46B.071.

SECTION 18. Article 46B.151(a), Code of Criminal Procedure, is amended to read as follows:

(a) If a court is required by Article 46B.084(f) or by its appropriate determination under Article 46B.071 to proceed under this subchapter, or if the court is permitted by Article 46B.004(e) to proceed under this subchapter, the court shall determine whether there is evidence to support a finding that the defendant is either a person with mental illness or a person with mental retardation.

SECTION 19. To increase community-based placement alternatives to incarceration, the Health and Human Services Commission shall apply for and actively pursue a waiver or other authorization to the state Medicaid plan from the federal Centers for Medicare and Medicaid Services or any other federal agency as necessary to provide Medicaid home and community-based services to persons with severe and persistent mental illness who have a history of more than one forensic commitment under Chapter 46B, Code of Criminal Procedure.

SECTION 20. The change in law made by this Act applies only to a defendant with respect to whom any proceeding under Chapter 46B, Code of Criminal Procedure, is conducted on or after the effective date of this Act.

SECTION 21. This Act takes effect September 1, 2011.