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A BILL TO BE ENTITLED
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AN ACT
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relating to the determination of incompetency in criminal cases. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 46B.001, Code of Criminal Procedure, is |
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amended by adding Subdivision (1-a) to read as follows: |
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(1-a) "Developmental disability" has the meaning |
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assigned by Section 112.001, Human Resources Code. |
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SECTION 2. Article 46B.0095, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 46B.0095. MAXIMUM PERIOD OF [FACILITY] COMMITMENT OR |
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OUTPATIENT TREATMENT PROGRAM PARTICIPATION DETERMINED BY MAXIMUM |
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TERM FOR OFFENSE. (a) A defendant may not, under Subchapter D or E |
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or any other provision of this chapter, be committed to a mental |
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hospital or other inpatient or residential facility, ordered to |
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participate in an outpatient treatment program, or subjected to |
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both inpatient and outpatient treatment for a cumulative period |
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that exceeds the maximum term provided by law for the offense for |
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which the defendant was to be tried, except that if the defendant is |
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charged with a misdemeanor and has been ordered only to participate |
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in an outpatient treatment program under Subchapter D or E, the |
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maximum period of restoration is two years [beginning on the date of
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the initial order for outpatient treatment program participation
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was entered]. |
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(b) On expiration of the maximum restoration period under |
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Subsection (a), the defendant may be confined for an additional |
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period in a mental hospital or other inpatient or residential |
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facility or ordered to participate for an additional period in an |
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outpatient treatment program, as appropriate, only pursuant to |
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civil [commitment] proceedings under Subtitle C or D, Title 7, |
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Health and Safety Code. |
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(c) The cumulative period described by Subsection (a): |
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(1) begins on the date the initial order of commitment |
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or initial order for outpatient treatment program participation is |
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entered under this chapter; and |
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(2) includes any time that, following the entry of an |
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order described by Subdivision (1), the defendant is confined in a |
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correctional facility, as defined by Section 1.07, Penal Code, |
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while awaiting: |
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(A) transfer to a mental hospital or other |
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inpatient or residential facility; |
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(B) release on bail to participate in an |
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outpatient treatment program; or |
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(C) a criminal trial following any temporary |
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restoration of the defendant's competency to stand trial. |
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SECTION 3. Article 46B.022(a), Code of Criminal Procedure, |
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is amended to read as follows: |
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(a) To qualify for appointment under this subchapter as an |
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expert, a psychiatrist or psychologist must: |
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(1) as appropriate, be a physician licensed in this |
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state or be a psychologist licensed in this state who has a doctoral |
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degree in psychology; and |
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(2) have the following certification [or experience] |
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or training: |
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(A) as appropriate, certification by: |
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(i) the American Board of Psychiatry and |
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Neurology with added or special qualifications in forensic |
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psychiatry; or |
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(ii) the American Board of Professional |
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Psychology in forensic psychology; or |
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(B) [experience or] training consisting of[:
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[(i)] at least 24 hours of specialized |
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forensic training relating to incompetency or insanity |
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evaluations[;
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[(ii)
for an appointment made before
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January 1, 2005, at least five years of experience before January 1,
|
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2004, in performing criminal forensic evaluations for courts; or
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[(iii)
for an appointment made on or after
|
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January 1, 2005, at least five years of experience before January 1,
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2004, in performing criminal forensic evaluations for courts and
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eight or more hours of continuing education relating to forensic
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evaluations, completed in the 12 months preceding the appointment
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and documented with the court]. |
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SECTION 4. Article 46B.024, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 46B.024. FACTORS CONSIDERED IN EXAMINATION. During an |
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examination under this subchapter and in any report based on that |
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examination, an expert shall consider, in addition to other issues |
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determined relevant by the expert, the following: |
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(1) the capacity of the defendant during criminal |
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proceedings to: |
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(A) rationally understand the charges against |
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the defendant and the potential consequences of the pending |
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criminal proceedings; |
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(B) disclose to counsel pertinent facts, events, |
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and states of mind; |
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(C) engage in a reasoned choice of legal |
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strategies and options; |
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(D) understand the adversarial nature of |
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criminal proceedings; |
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(E) exhibit appropriate courtroom behavior; and |
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(F) testify; |
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(2) as supported by current indications or the |
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defendant's personal history, whether the defendant: |
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(A) has a [diagnosable] mental illness; |
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(B) [or] is a person with mental retardation or |
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other developmental disability; or |
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(C) has any other medical condition that |
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significantly limits the defendant's cognitive functioning; |
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(3) whether the identified condition has lasted or is |
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expected to last continuously for at least one year; |
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(4) the degree of impairment resulting from [impact
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of] the mental illness, [or] mental retardation or other |
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developmental disability, or other cognitive impairment, if |
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existent, and the specific impact on the defendant's capacity to |
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engage with counsel in a reasonable and rational manner; and |
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(5) [(4)] if the defendant is taking psychoactive or |
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other medication: |
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(A) whether the medication is necessary to |
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maintain the defendant's competency; and |
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(B) the effect, if any, of the medication on the |
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defendant's appearance, demeanor, or ability to participate in the |
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proceedings. |
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SECTION 5. Articles 46B.025(a) and (b), Code of Criminal |
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Procedure, are amended to read as follows: |
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(a) An expert's report to the court must state an opinion on |
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a defendant's competency or incompetency to stand trial or explain |
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why the expert is unable to state such an opinion and must also: |
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(1) identify and address specific issues referred to |
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the expert for evaluation; |
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(2) document that the expert explained to the |
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defendant the purpose of the evaluation, the persons to whom a |
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report on the evaluation is provided, and the limits on rules of |
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confidentiality applying to the relationship between the expert and |
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the defendant; |
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(3) in specific [general] terms, describe procedures, |
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techniques, and tests used in the examination, [and] the purpose of |
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each procedure, technique, or test, and the conclusions reached; |
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and |
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(4) state the expert's clinical observations, |
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findings, and opinions on each specific issue referred to the |
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expert by the court, state the specific criteria supporting the |
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expert's diagnosis, and state specifically any issues on which the |
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expert could not provide an opinion. |
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(b) If in the opinion of an expert appointed under Article |
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46B.021 the defendant is incompetent to proceed, the expert shall |
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state in the report: |
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(1) the symptoms, exact nature, severity, and expected |
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duration of the deficits resulting from the defendant's mental |
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illness, [or] mental retardation or other developmental |
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disability, or other cognitive impairment, if any, and the [that] |
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impact of the identified condition on the factors listed in Article |
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46B.024[, contributing to the defendant's incompetency]; [and] |
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(2) an estimate of the period needed to restore the |
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defendant's competency, including whether the defendant is likely |
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to be restored to competency in the foreseeable future; and |
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(3) prospective treatment options and the least |
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restrictive setting in which treatment may be delivered, as [, if
|
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any,] appropriate for the defendant. |
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SECTION 6. Article 46B.071, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 46B.071. OPTIONS ON DETERMINATION OF INCOMPETENCY. |
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(a) Except as provided by Subsection (b), on [On] a determination |
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that a defendant is incompetent to stand trial, the court shall: |
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(1) commit the defendant to a facility under Article |
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46B.073; or |
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(2) release the defendant on bail under Article |
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46B.072. |
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(b) On a determination that a defendant is incompetent to |
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stand trial and is unlikely to be restored to competency in the |
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foreseeable future, the court shall: |
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(1) proceed under Subchapter E or F; or |
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(2) take other action authorized by law. |
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SECTION 7. Article 46B.072, Code of Criminal Procedure, is |
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amended by amending Subsections (a), (b), and (c) and adding |
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Subsection (a-1) to read as follows: |
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(a) This article applies only to a defendant who is subject |
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to an initial restoration period based on Article 46B.071. |
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(a-1) Subject to conditions reasonably related to assuring |
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public safety and the effectiveness of the defendant's treatment, |
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if the court determines that a defendant found incompetent to stand |
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trial is not a danger to others and may be safely treated on an |
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outpatient basis with the specific objective of attaining |
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competency to stand trial and if an appropriate outpatient |
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treatment program is available for the defendant, the court: |
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(1) may release on bail a defendant found incompetent |
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to stand trial with respect to a felony or may continue the |
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defendant's release on bail; and |
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(2) shall release on bail a defendant found |
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incompetent to stand trial with respect to a misdemeanor or shall |
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continue the defendant's release on bail. |
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(b) The court shall order a defendant released on bail under |
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Subsection (a-1) [(a)] to participate in an outpatient treatment |
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program for a period not to exceed 60 [120] days. |
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(c) Notwithstanding Subsection (a-1) [(a)], the court may |
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order a defendant to participate in an outpatient treatment program |
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under this article only if: |
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(1) the court receives and approves a comprehensive |
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plan that: |
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(A) provides for the treatment of the defendant |
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for purposes of competency restoration; and |
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(B) identifies the person who will be responsible |
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for providing that treatment to the defendant; and |
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(2) the court finds that the treatment proposed by the |
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plan will be available to and will be provided to the defendant. |
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SECTION 8. Articles 46B.073(a) and (b), Code of Criminal |
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Procedure, are amended to read as follows: |
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(a) This article applies only to a defendant not released on |
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bail who is subject to an initial restoration period based on |
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Article 46B.071. |
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(b) The court shall commit a defendant described by |
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Subsection (a) to a mental health facility or residential care |
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facility for a period not to exceed 60 [120] days for further |
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examination and treatment toward the specific objective of |
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attaining competency to stand trial. |
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SECTION 9. Article 46B.076(a), Code of Criminal Procedure, |
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is amended to read as follows: |
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(a) If the defendant is found incompetent to stand trial, |
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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 |
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facility of the department to which the defendant is committed or |
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the outpatient treatment program to which the defendant is |
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released. The court shall also provide to the facility or |
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outpatient treatment program copies of the following made available |
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to the court during the incompetency trial: |
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(1) reports of each expert; |
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(2) psychiatric, psychological, or social work |
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reports that relate to the medical [mental] condition of the |
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defendant; |
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(3) documents provided by the attorney representing |
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the state or the attorney representing the defendant that relate to |
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the defendant's current or past medical [mental] condition; |
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(4) copies of the indictment or information and any |
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supporting documents used to establish probable cause in the case; |
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(5) the defendant's criminal history record; and |
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(6) the addresses of the attorney representing the |
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state and the attorney representing the defendant. |
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SECTION 10. Article 46B.077, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 46B.077. INDIVIDUAL TREATMENT PROGRAM. (a) The |
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facility to which the defendant is committed or the outpatient |
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treatment program to which the defendant is released on bail shall: |
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(1) develop an individual program of treatment; |
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(2) assess and evaluate whether the defendant is |
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likely to be restored to [will obtain] competency in the |
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foreseeable future; and |
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(3) report to the court and to the local mental health |
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authority or to the local mental retardation authority on the |
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defendant's progress toward achieving competency. |
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(b) If the defendant is committed to an inpatient mental |
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health facility or to a residential care facility, the facility |
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shall report to the court at least once during the commitment |
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period. If the defendant is released to a treatment program not |
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provided by an inpatient mental health facility or a residential |
|
care facility, the treatment program shall report to the court: |
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(1) not later than the 14th day after the date on which |
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the defendant's treatment begins; and |
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(2) until the defendant is no longer released to the |
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treatment program, at least once during each 15-day [30-day] period |
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following the date of the report required by Subdivision (1). |
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SECTION 11. Article 46B.079, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 46B.079. NOTICE AND REPORT TO COURT. (a) The head of |
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the facility or the provider of the outpatient treatment program, |
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as appropriate, not later than the 15th day before the date on which |
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the initial [a] restoration period is to expire, shall notify the |
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applicable court that the [restoration] period is about to expire. |
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(b) The head of the facility or outpatient treatment program |
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provider shall promptly notify the court when the head of the |
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facility or outpatient treatment program provider believes that: |
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(1) the defendant has attained competency to stand |
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trial; or |
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(2) the defendant is not likely to [will not] attain |
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competency in the foreseeable future. |
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(c) When the head of the facility or outpatient treatment |
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program provider gives notice to the court under Subsection (a) or |
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(b), the head of the facility or outpatient treatment program |
|
provider also shall file a final report with the court stating the |
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reason for the proposed discharge under this chapter and including |
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a list of the types and dosages of medications with which the |
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defendant was treated [for mental illness] while in the facility or |
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participating in the outpatient treatment program. To enable any |
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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 |
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the report to the attorney representing the defendant and the |
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attorney representing the state. |
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(d) If the head of the facility or outpatient treatment |
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program provider notifies the court that the initial restoration |
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period is about to expire, the notice may contain a request for an |
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extension of the period for an additional period of 30 [60] days and |
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an explanation for the basis of the request. |
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SECTION 12. Articles 46B.080(a) and (b), Code of Criminal |
|
Procedure, are amended to read as follows: |
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(a) On its own motion or the motion of any party [a request
|
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of the head of a facility or a treatment program provider that is
|
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made under Article 46B.079(d)] and notwithstanding any other |
|
provision of this subchapter, the court may enter an order |
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extending the initial restoration period for an additional period |
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of 30 [60] days. |
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(b) The court may enter an order under Subsection (a) only |
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if the court determines that[, on the basis of information provided
|
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by the head of the facility or the treatment program provider]: |
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(1) the defendant has not attained competency; and |
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(2) an extension of the initial restoration period |
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will likely enable the facility or program to restore the defendant |
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to competency within the period of the extension. |
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SECTION 13. Article 46B.080(c), Code of Criminal Procedure, |
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is redesignated as Article 46B.0805, Code of Criminal Procedure, |
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and amended to read as follows: |
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Art. 46B.0805. SECOND EXTENSION PERMITTED IN CERTAIN |
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CIRCUMSTANCES. [(c)] The court may grant a second [only one] |
|
extension with respect to [under this article for] a period of |
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restoration ordered under this subchapter if medical evidence shows |
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a reduction in the severity of the defendant's symptoms or |
|
functional impairment. |
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SECTION 14. Article 46B.084(a), Code of Criminal Procedure, |
|
is amended to read as follows: |
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(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 |
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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 |
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objects to the report as described by this subsection and the issue |
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is set for hearing under Subsection (b). |
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SECTION 15. Article 46B.085, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 46B.085. SUBSEQUENT RESTORATION PERIODS AND |
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EXTENSIONS OF THOSE PERIODS PROHIBITED. (a) The court may order |
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only one initial period of restoration and two extensions [one
|
|
extension] under this subchapter in connection with the same |
|
offense. |
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(b) After an initial restoration period and one or two |
|
extensions [an extension] are ordered as described by Subsection |
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(a), any subsequent court orders for treatment must be issued under |
|
Subchapter E or F. |
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SECTION 16. Article 46B.086(a), Code of Criminal Procedure, |
|
is amended to read as follows: |
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(a) This article applies only to a defendant: |
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(1) who is determined under this chapter to be |
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incompetent to stand trial; |
|
(2) who either: |
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(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; |
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(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. |