83R2721 GCB-D

By: Zerwas H.B. No. 2349

A BILL TO BE ENTITLED

AN ACT

relating to alternate methods for providing mental health and related services to certain defendants found incompetent to stand trial or acquitted by reason of insanity in a criminal case.

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

SECTION 1. Subchapter D, Chapter 46B, Code of Criminal Procedure, is amended by adding Article 46B.0731 to read as follows:

Art. 46B.0731. JAIL-BASED COMPETENCY RESTORATION. (a) Notwithstanding Article 46B.073 or any other provision of this chapter and except as provided by Subsection (b), instead of committing the defendant to a mental health facility or a residential care facility under Article 46B.073, a court may issue an order committing the defendant to the jail in that county for purposes of receiving competency restoration treatment under this subchapter if the department has established a jail-based competency restoration program under Section 1001.078, Health and Safety Code, and if the department has made the program available in that county.

(b) A court may not issue an order of commitment under this article with respect to a defendant who is subject to Article 46B.073(c).

(c) A court's order of commitment under this article has the same effect as an order of commitment issued under Article 46B.073 and, for purposes of the procedures described by this chapter, shall be treated as if it had been issued under that article. The court may extend an initial order of commitment under this article in the same manner as an initial order of commitment may be extended under Article 46B.080.

(d) With respect to each commitment order issued under this article and each extension granted under this article, notwithstanding Article 46B.001 or any other provision of this chapter and solely in the context of a commitment occurring pursuant to an initial order of commitment or an extension of that order:

(1) a reference in this chapter to a facility means a reference to a county jail designated as an appropriate venue for competency restoration treatment under a jail-based competency restoration program established under Section 1001.078, Health and Safety Code; and

(2) a reference in this chapter to the head of that facility means the department.

(e) Notwithstanding Subsection (c), a duty imposed by this subchapter to transport a defendant to or from the county jail, including the duties described by Articles 46B.075 and 46B.0755(b), does not apply to a defendant who has been committed to that jail under this article.

(f) For purposes of Article 46B.009(2), the period of confinement for which the defendant may receive a time credit on the defendant's sentence ends on the date of the final judicial determination that the defendant has been restored to competency.

(g) A defendant who is committed to a county jail under this article may not be committed to the jail or any other correctional facility using civil commitment proceedings under Subtitle C or D, Title 7, Health and Safety Code.

SECTION 2. Article 46B.086(g), Code of Criminal Procedure, is amended to read as follows:

(g) For a defendant described by Subsection (a)(2)(A), an order issued under this article[:

[(1)] authorizes the initiation of any appropriate mental health treatment for the defendant awaiting transfer. The order[; and

[(2)] does not in itself constitute authorization to retain the defendant in a correctional facility for competency restoration treatment, but authorization to retain the defendant in such a manner may be available with respect to a defendant ordered to receive competency restoration treatment under Article 46B.0731 through a program established by the department under Section 1001.078, Health and Safety Code.

SECTION 3. Subchapter C, Chapter 574, Health and Safety Code, is amended by adding Section 574.038 to read as follows:

Sec. 574.038. CONDITIONAL RELEASE PILOT PROGRAM. (a) In this section:

(1) "Program" means the conditional release pilot program established under Section 1001.079.

(2) "Provider" means a community-based mental health services provider designated by the department to provide mental health services through the program in the county in which the provider is located.

(b) A patient is eligible to participate in the program if the patient:

(1) is a person:

(A) acquitted by reason of insanity under Chapter 46C, Code of Criminal Procedure, and subsequently:

(i) committed for inpatient treatment at a mental health facility under Article 46C.256, Code of Criminal Procedure; or

(ii) ordered to receive extended inpatient mental health services under Section 574.035; or

(B) found incompetent to stand trial and subsequently committed to a mental health facility under Subchapter E, Chapter 46B, Code of Criminal Procedure;

(2) for a period of more than one year, has remained in residence in a mental health facility to which the patient is committed;

(3) has a documented history of taking medications prescribed under the treatment plan administered to patients at the mental health facility;

(4) has not recently been restrained, secluded, or ordered to take emergency medication at the mental health facility to which the patient is committed;

(5) was assessed as stable or declining in severity in the two most recent assessments of the patient conducted; and

(6) has the capacity to reliably participate in a conditional release program.

(c) A director of a mental health facility located in a county selected by the department under Section 1001.079(a), in consultation with the local mental health authority, shall identify patients committed to the facility who are eligible to participate in the program. The facility shall provide to each identified patient care and treatment to prepare the patient to participate in the program. If the facility determines an identified patient is likely to receive adequate treatment under the program and comply with conditions of release imposed by a court, the facility shall prepare and submit to the department a conditional release treatment plan for the patient indicating community-based mental health services to be administered to the patient through the program, including, if applicable to the patient, services appropriate to prevent a patient from engaging in acts of violence.

(d) If the department determines, based on the department's psychiatric security review process described by Section 1001.079(c), that the patient is not likely to be a danger to the community, the department shall:

(1) approve a patient's participation in the program; and

(2) subject to available resources of the program and the applicable provider, recommend the patient's participation in the program to a court in the county having jurisdiction over civil commitment proceedings conducted under this subtitle.

(e) On a recommendation of the department, a court may order a patient to participate in the program if:

(1) a provider certifies to the court that the provider is capable of providing the mental health services indicated for the patient in the patient's conditional release treatment plan; and

(2) the patient agrees in a signed writing to participate in the program by:

(A) following the course of treatment indicated for the patient in the patient's conditional release treatment plan; and

(B) complying with any other condition imposed by the court as a condition of the patient's release.

(f) A court order issued under Subsection (e) must impose on the patient minimum treatment and supervision requirements as conditions of release, including a condition that the patient must abstain from consuming alcohol or illicit drugs and a condition that the patient must comply with random alcohol and drug testing administered by the provider.

(g) On an order issued by the court pursuant to Subsection (e), a mental health facility shall:

(1) release a patient to the care of the provider; and

(2) transport the patient to the location designated by the provider.

(h) For purposes of the application of this subtitle and any order for court-ordered mental health services, a patient conditionally released under this section remains committed to the mental health facility from which the patient was conditionally released under this section. If a court sets aside the order for court-ordered mental health services under which the patient was initially committed at a hearing held for that purpose, or if the order for court-ordered mental health services expires, as provided by Section 574.110, the patient is released from commitment to the facility and is no longer a patient receiving mental health services through the program.

(i) If the provider or the local mental health authority certifies to the court that the patient has violated a condition imposed by the court, the patient's condition has deteriorated, or, in the opinion of a mental health professional, the patient is a danger to self or others, the court, within 24 hours of receiving the certification, shall revoke the order for conditional release.

(j) The court shall order the patient transported to and returned to the care of the applicable mental health facility not later than 24 hours after:

(1) as described by Subsection (i), the court revokes the order for conditional release on certification from the provider or the local mental health authority that:

(A) the patient has violated a condition imposed by the court;

(B) the patient's condition has deteriorated; or

(C) in the opinion of a mental health professional, the patient is a danger to self or others;

(2) the court order for conditional release to participate in the program expires; or

(3) the program expires.

(k) A patient ordered to receive mental health services through the program is not eligible for a pass or furlough under Section 574.082.

(l) This section expires September 1, 2017. An order issued under this section authorizing the conditional release of a patient must expire before that date.

SECTION 4. Subchapter D, Chapter 1001, Health and Safety Code, is amended by adding Sections 1001.078 and 1001.079 to read as follows:

Sec. 1001.078. JAIL-BASED COMPETENCY RESTORATION PROGRAM; WORK GROUP. (a) The executive commissioner by rule may establish a jail-based competency restoration program to be operated by the department if the work group formed under this subsection recommends the program's establishment. The department shall form a work group to determine whether a jail-based competency restoration program to provide competency restoration treatment in county jails to defendants who are subject to competency restoration under Subchapter D, Chapter 46B, Code of Criminal Procedure, may be operated by the department without any increase in state spending on mental health treatment. The work group shall make a recommendation to the executive commissioner regarding the establishment of a program under this section.

(b) A program established under this section must provide for a partnership between a county and the department through which the department provides competency restoration treatment to each defendant who is subject to competency restoration under Subchapter D, Chapter 46B, Code of Criminal Procedure, and is ordered to receive competency restoration treatment under Article 46B.0731 of that code in the county jail for the county in which the applicable criminal case is pending. The department may enter into multiple partnerships under this section.

(c) A program established under this section must include a quality review process designed to ensure that competency restoration treatment provided to a defendant through the program in a county jail is equivalent to the treatment that would be provided to the defendant if the defendant were committed to a mental health facility operated by the department.

Sec. 1001.079. CONDITIONAL RELEASE PILOT PROGRAM. (a) The executive commissioner by rule shall establish a conditional release pilot program for eligible patients under Section 574.038(b), to be operated by the department in one or more counties selected by the department.

(b) The department, in consultation with the local mental health authority, shall designate a community-based mental health services provider to provide mental health services in each county in which the pilot program operates.

(c) The department shall solicit input from appropriate local mental health authorities, community-based mental health services providers, and mental health facilities in designing a psychiatric security review process to evaluate whether a patient would likely be a danger to the community if released from the mental health facility to which the patient would be committed under an order for conditional release to participate in the pilot program.

(d) In adopting rules under this section, the executive commissioner shall ensure that the pilot program provides patients opportunities to be employed in the community, such as through a supported work program, or to participate in community-based vocational training.

(e) In adopting rules under this section, the executive commissioner must specify what information the department must collect during the operation of the pilot program for use in evaluating the outcome of the program.

(f) The local mental health authority in a county in which the pilot program operates, the community-based mental health services provider designated by the department to provide mental health services through the pilot program in that county, and the mental health facility from which the patient is conditionally released shall schedule regular meetings for the purpose of evaluating the patient's mental health and the patient's adherence to the conditions of the release imposed on the patient by the court.

(g) During the operation of the pilot program, the commissioner of state health services shall submit biennial reports concerning the pilot program to the governor, the legislative budget director of the Legislative Budget Board, and the presiding officers of the standing committees of the senate and house of representatives having primary jurisdiction over health and human services issues and over criminal justice issues. The commissioner shall submit the first report not later than December 1, 2014, and the second report not later than December 1, 2016. Each report must contain the information collected by the department during the operation of the pilot program, the commissioner's evaluation of the outcome of the program as of the date of the report, the commissioner's recommendation as to whether to expand the operation of the program, and the commissioner's determination of whether the program has resulted in an increase in state spending on mental health treatment.

(h) The conditional release pilot program established under this section concludes and this section expires September 1, 2017.

SECTION 5. The change in law made by this Act to Chapter 46B, Code of Criminal Procedure, applies only to a proceeding under that chapter that commences on or after the effective date of this Act, regardless of when the defendant may have committed the underlying offense for which the defendant became subject to the proceeding.

SECTION 6. (a) The Department of State Health Services shall form the work group as required by Section 1001.078, Health and Safety Code, as added by this Act, as soon as practicable after the effective date of this Act, and the work group shall make a recommendation regarding the establishment of a jail-based competency restoration program to the executive commissioner of the Health and Human Services Commission not later than February 1, 2014.

(b) The executive commissioner of the Health and Human Services Commission shall establish the pilot program required under Section 1001.079, Health and Safety Code, as added by this Act, not later than February 1, 2014.

SECTION 7. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2013.