83R9807 KEL-F

By: Coleman H.B. No. 3774

A BILL TO BE ENTITLED

AN ACT

relating to the insanity defense and persons found not guilty by reason of insanity in a criminal case.

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

SECTION 1. Article 46B.021, Code of Criminal Procedure, is amended by adding Subsection (g) to read as follows:

(g) An expert appointed under this subchapter to examine the defendant with regard to the defendant's competency to stand trial may not be appointed by the court to examine the defendant with regard to the insanity defense under Chapter 46C.

SECTION 2. Article 46C.001, Code of Criminal Procedure, is amended by adding Subdivision (2-a) to read as follows:

(2-a) "Least restrictive appropriate treatment setting" means a setting that:

(A) is available;

(B) provides the acquitted person with the greatest probability of improvement or cure; and

(C) is not any more restrictive of the acquitted person's physical or social liberties than is necessary to provide the person with the most effective care or treatment and to protect adequately against any danger the patient may pose to the patient's self or others.

SECTION 3. Article 46C.002, Code of Criminal Procedure, is amended to read as follows:

Art. 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 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.

SECTION 4. Subchapter B, Chapter 46C, Code of Criminal Procedure, is amended by adding Articles 46C.053, 46C.054, and 46C.055 to read as follows:

Art. 46C.053. APPOINTMENT OF AND REPRESENTATION BY COUNSEL. (a) A defendant is entitled to representation by counsel before any court-ordered sanity evaluation and during any proceeding at which it is suggested that the defendant may be not guilty by reason of insanity.

(b) A defendant who is found not guilty by reason of insanity is entitled to representation by counsel during any proceeding to determine whether the acquitted person should receive court-ordered mental health services under this chapter or under Subtitle C, Title 7, Health and Safety Code, or be committed to a residential care facility to receive mental retardation services under Subtitle D, Title 7, Health and Safety Code.

(c) An attorney who represents a defendant in a criminal trial and who plans to offer evidence of the insanity defense must have completed at least three hours of continuing legal education related to Chapter 46B in the 12-month period preceding appointment or in the three-month period following appointment.

(d) An attorney representing an acquitted person during any proceeding under this chapter, including the person's criminal trial, must have completed at least three hours of continuing legal education related to this chapter in the 12-month period preceding appointment or in the three-month period following appointment.

(e) The court shall inform the attorney in writing of the attorney's duties under Article 46C.054.

Art. 46C.054. DUTIES OF ATTORNEY. (a) The attorney for the defendant shall discuss thoroughly with the defendant the relevant law, the facts of the case, all possible defense strategies, and, if appropriate, the grounds on which the insanity defense will be raised.

(b) Before raising the insanity defense, the attorney shall advise the defendant of the benefits and risks involved with raising the insanity defense, the consequences related to prevailing on the defense, and the maximum term of the court's jurisdiction if the defendant is acquitted of the offense.

(c) Regardless of the attorney's personal opinion, the attorney shall use all reasonable efforts within the bounds of law to advocate for the least restrictive appropriate treatment setting alternatives at each of the following hearings:

(1) the hearing on disposition under Article 46C.253;

(2) the annual commitment renewal hearing under Article 46C.261; or

(3) a hearing on the modification of the commitment order under Article 46C.262.

(d) Before each hearing described by Subsection (c), the attorney for the acquitted person shall:

(1) review the application for court-ordered treatment, the certificates of medical examination for mental illness, the acquitted person's relevant medical records, and any other relevant records;

(2) interview each relevant witness, regardless of whether the witness testifies at the hearing, unless prohibited by law; and

(3) explore the least restrictive appropriate treatment setting alternatives to court-ordered inpatient mental health services.

Art. 46C.055. WAIVER OF HEARING. (a) The acquitted person must be present at any hearing listed under Article 46C.054(c) unless the attorney for the acquitted person, at least three days before the date of the hearing, files with the court a joint sworn statement that is made by the acquitted person and the acquitted person's attorney and that clearly states on the face of the statement:

(1) that the attorney has explained the purposes of the hearing and the consequences of not being present at the hearing, including the possibility that the acquitted person may be ordered to receive inpatient treatment or residential care services or outpatient or community-based treatment for a period that could extend to one year;

(2) that the acquitted person is knowingly and voluntarily waiving the person's right to attend the hearing; and

(3) if applicable, that the acquitted person agrees to waive any right to a jury trial.

(b) For purposes of Subsection (a), an acquitted person is considered present at a hearing if the acquitted person participates via videoconference or teleconference.

SECTION 5. Articles 46C.102(a) and (b), Code of Criminal Procedure, are amended to read as follows:

(a) The court may appoint qualified psychiatrists or psychologists as experts under this chapter. 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; and

(ii) at least [five years of experience in performing criminal forensic evaluations for courts; and

[(iii)] eight [or more] hours of continuing education relating to forensic evaluations, completed in the 12 months preceding the appointment [and documented with the court].

(b) In addition to meeting qualifications required by Subsection (a), to be appointed as an expert a psychiatrist or psychologist must have completed a total of six hours of approved [required] continuing education [in courses] in forensic psychiatry or psychology[, as appropriate,] in the 24 months preceding the appointment.

SECTION 6. Article 46C.103, Code of Criminal Procedure, is amended to read as follows:

Art. 46C.103. COMPETENCY TO STAND TRIAL: CONCURRENT APPOINTMENTS PROHIBITED [APPOINTMENT]. [(a)] An expert appointed under this subchapter to examine the defendant with regard to the insanity defense [also] may not be appointed by the court to examine the defendant with regard to the defendant's competency to stand trial under Chapter 46B[, if the expert files with the court separate written reports concerning the defendant's competency to stand trial and the insanity defense].

[(b) Notwithstanding Subsection (a), an expert may not examine the defendant for purposes of determining the defendant's sanity and may not file a report regarding the defendant's sanity if in the opinion of the expert the defendant is incompetent to proceed.]

SECTION 7. 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 [, 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 following form:

"A jury during its deliberations must never consider or speculate concerning matters relating to the consequences of its verdict. However, because of the lack of common knowledge regarding the consequences of a verdict of 'not guilty by reason of insanity,' I charge you that if you render this verdict there will be hearings as to the defendant's present mental condition and, where appropriate, involuntary commitment proceedings."[.]

SECTION 8. 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.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.269.

SECTION 9. Article 46C.252(c), Code of Criminal Procedure, is amended to read as follows:

(c) The report must address:

(1) whether the acquitted person has a mental illness or mental retardation and, if so, whether the mental illness or mental retardation is severe;

(2) whether as a result of any severe mental illness or mental retardation the acquitted person is likely to cause serious harm to another;

(3) whether as a result of any impairment the acquitted person is subject to commitment under Subtitle C or D, Title 7, Health and Safety Code;

(4) prospective treatment [and supervision] options, if any, appropriate for the acquitted person; and

(5) whether any required treatment [and supervision] can be safely and effectively provided as outpatient or community-based treatment [and supervision].

SECTION 10. Article 46C.253, Code of Criminal Procedure, is amended by amending Subsections (b) and (d) and adding Subsection (d-1) to read as follows:

(b) At the hearing, the court shall address:

(1) whether the person acquitted by reason of insanity has a severe mental illness or mental retardation;

(2) whether as a result of any mental illness or mental retardation the person is likely to cause serious harm to another; and

(3) whether appropriate treatment [and supervision] for any mental illness or mental retardation rendering the person dangerous to another can be safely and effectively provided as outpatient or community-based treatment [and supervision].

(d) The court shall order the acquitted person to receive outpatient or community-based treatment [and supervision] under Article 46C.257 if the grounds required for that order are established.

(d-1) Provided that the burden of proof is satisfied and the commitment requirements are met, the court shall order the acquitted person into the least restrictive appropriate treatment setting.

SECTION 11. Article 46C.254, Code of Criminal Procedure, is amended to read as follows:

Art. 46C.254. EFFECT OF STABILIZATION ON TREATMENT REGIMEN. If an acquitted person is stabilized on a treatment regimen, including medication and other treatment modalities, rendering the person no longer likely to cause serious harm to another, inpatient treatment or residential care may be found necessary to protect the safety of others only if:

(1) the person would become likely to cause serious harm to another if the person fails to follow the treatment regimen on an Order to Receive Outpatient or Community-Based Treatment [and Supervision]; and

(2) under an Order to Receive Outpatient or Community-Based Treatment [and Supervision] either:

(A) the person is likely to fail to comply with an available regimen of outpatient or community-based treatment, as determined by the person's insight into the need for medication, the number, severity, and controllability of side effects, the availability of support and treatment programs for the person from community members, and other appropriate considerations; or

(B) a regimen of outpatient or community-based treatment will not be available to the person.

SECTION 12. Article 46C.255(b), Code of Criminal Procedure, is amended to read as follows:

(b) The following proceedings may not be held before a jury:

(1) a proceeding to determine outpatient or community-based treatment [and supervision] under Article 46C.262; or

(2) a proceeding to determine modification or revocation of outpatient or community-based treatment [and supervision] under Article 46C.267.

SECTION 13. Article 46C.256, Code of Criminal Procedure, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows:

(a) The court shall order the acquitted person committed to a mental hospital or other appropriate facility for inpatient treatment or residential care if the state establishes by clear and convincing evidence that:

(1) the person has a severe mental illness or mental retardation;

(2) the person, as a result of that mental illness or mental retardation, is likely to cause serious bodily injury to another if the person is not provided with treatment [and supervision]; and

(3) inpatient treatment or residential care is necessary to protect the safety of others.

(a-1) To be clear and convincing under Subsection (a), the evidence must include expert opinion and testimony evidence of a recent overt act or a continuing pattern of behavior that tends to confirm the substance of Subsections (a)(1), (2), and (3).

SECTION 14. Article 46C.257, Code of Criminal Procedure, is amended to read as follows:

Art. 46C.257. ORDER TO RECEIVE OUTPATIENT OR COMMUNITY-BASED TREATMENT [AND SUPERVISION]. (a) The court shall order the acquitted person to receive outpatient or community-based treatment [and supervision] if:

(1) the state establishes by clear and convincing evidence that the person:

(A) has a severe mental illness or mental retardation; and

(B) as a result of that mental illness or mental retardation is likely to cause serious bodily injury to another if the person is not provided with treatment [and supervision]; and

(2) the state fails to establish by clear and convincing evidence that inpatient treatment or residential care is necessary to protect the safety of others.

(b) The order of commitment to outpatient or community-based treatment [and supervision] expires on the first anniversary of the date the order is issued but is subject to renewal as provided by Article 46C.261.

SECTION 15. Subchapter F, Chapter 46C, Code of Criminal Procedure, is amended by adding Article 46C.2575 to read as follows:

Art. 46C.2575. WAIVER OF EVIDENCE GIVEN BY EXPERT. Only the acquitted person may waive expert opinion and testimony evidence under this subchapter.

SECTION 16. Articles 46C.258(a) and (b), Code of Criminal Procedure, are amended to read as follows:

(a) The head of the facility to which an acquitted person is committed has, during the commitment period, a continuing responsibility to determine:

(1) whether the acquitted person continues to have a severe mental illness or mental retardation and is likely to cause serious harm to another because of any severe mental illness or mental retardation; and

(2) if so, whether treatment [and supervision] cannot be safely and effectively provided as outpatient or community-based treatment [and supervision].

(b) The head of the facility must notify the committing court and seek modification of the order of commitment if the head of the facility determines that an acquitted person no longer has a severe mental illness or mental retardation, is no longer likely to cause serious harm to another, or that treatment [and supervision] can be safely and effectively provided as outpatient or community-based treatment [and supervision].

SECTION 17. 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.268.

SECTION 18. Articles 46C.260(a), (b), (c), and (d), Code of Criminal Procedure, are amended to read as follows:

(a) A person committed to a facility under this subchapter shall be committed to either the maximum security unit of any facility designated by the department or a nonsecure unit of any facility designated by the department.

(b) A person committed under this subchapter shall be transferred to the [maximum security] unit designated by the department immediately on the entry of the order of commitment.

(c) Unless the person is determined to be manifestly dangerous by a review board within the department, not later than the 60th day following the date of the person's arrival at the applicable [maximum security] unit the person shall be transferred to a nonsecure unit of a facility designated by the department or the Department of Aging and Disability Services, as appropriate.

(d) The commissioner shall appoint a review board of five members, including one psychiatrist licensed to practice medicine in this state and two persons who work directly with persons with mental illnesses or with mental retardation, to determine whether the person is manifestly dangerous and, as a result of the danger the person presents, requires [continued] placement in a maximum security unit.

SECTION 19. The heading to Article 46C.261, Code of Criminal Procedure, is amended to read as follows:

Art. 46C.261. RENEWAL OF ORDERS FOR INPATIENT COMMITMENT OR OUTPATIENT OR COMMUNITY-BASED TREATMENT [AND SUPERVISION].

SECTION 20. Article 46C.261, Code of Criminal Procedure, is amended by amending Subsections (a), (b), (f), (h), and (i) and adding Subsections (j) and (k) to read as follows:

(a) A court that orders an acquitted person committed to inpatient treatment or orders outpatient or community-based treatment [and supervision] annually shall determine whether to renew the order.

(b) Not later than the 30th day before the date an order is scheduled to expire, the institution to which a person is committed, the person responsible for providing outpatient or community-based treatment [and supervision], or the attorney representing the state may file a request that the order be renewed. The request must explain in detail the reasons why the person requests renewal under this article. A request to renew an order committing the person to inpatient treatment must also explain in detail why outpatient or community-based treatment [and supervision] is not appropriate.

(f) If a hearing is held, the acquitted person shall [may] be transferred from the facility to which the [acquitted] person was committed to a jail as [for purposes of participating in the hearing only if] necessary but not earlier than 72 hours before the hearing begins. If the order is renewed, the person shall be transferred back to the facility immediately on renewal of the order.

(h) A court shall renew an [the] order for inpatient or residential care services only if the court finds that the state [party who requested the renewal] has established by clear and convincing evidence the requirements under Article 46C.256 [that continued mandatory supervision and treatment are appropriate. A renewed order authorizes continued inpatient commitment or outpatient or community-based treatment and supervision for not more than one year].

(i) The court, on application for renewal of an [order for inpatient or residential care services, may modify the order to provide for] outpatient or community-based treatment order, may renew the order [and supervision] if the requirements under Article 46C.257 are satisfied [court finds the acquitted person has established by a preponderance of the evidence that treatment and supervision can be safely and effectively provided as outpatient or community-based treatment and supervision].

(j) A renewed order authorizes continued inpatient commitment or outpatient or community-based treatment for not more than one year.

(k) If a party fails to comply with the requirements in Subsection (b) or (c), or the applicable order expires, then the party requesting the renewal of the order must proceed under Article 46C.253.

SECTION 21. The heading to Article 46C.262, Code of Criminal Procedure, is amended to read as follows:

Art. 46C.262. COURT-ORDERED OUTPATIENT OR COMMUNITY-BASED TREATMENT [AND SUPERVISION] AFTER INPATIENT COMMITMENT.

SECTION 22. Articles 46C.262(a) and (f), Code of Criminal Procedure, are amended to read as follows:

(a) An acquitted person, the head of the facility to which the acquitted person is committed, or the attorney representing the state may request that the court modify an order for inpatient treatment or residential care to order outpatient or community-based treatment [and supervision].

(f) The court shall modify the commitment order to direct outpatient or community-based treatment [and supervision] if at the hearing the acquitted person establishes by a preponderance of the evidence that treatment [and supervision] can be safely and effectively provided as outpatient or community-based treatment [and supervision].

SECTION 23. Article 46C.263, Code of Criminal Procedure, is amended to read as follows:

Art. 46C.263. COURT-ORDERED OUTPATIENT OR COMMUNITY-BASED TREATMENT [AND SUPERVISION]. (a) The court may order an acquitted person to participate in an outpatient or community-based regimen of treatment [and supervision]:

(1) as an initial matter under Article 46C.253;

(2) on renewal of an order of commitment under Article 46C.261; or

(3) after a period of inpatient treatment or residential care under Article 46C.262.

(b) An acquitted person may be ordered to participate in an outpatient or community-based regimen of treatment [and supervision] only if:

(1) the court receives and approves an outpatient or community-based treatment plan that comprehensively provides for the outpatient or community-based treatment [and supervision]; and

(2) the court finds that the outpatient or community-based treatment [and supervision] provided for by the plan will be available to and provided to the acquitted person.

(c) The order may require the person to participate in a prescribed regimen of medical, psychiatric, or psychological care or treatment, and the regimen may include:

(1) care coordination and any other treatment or services considered medically necessary to treat the person's mental illness and medically necessary to assist the patient in functioning safely in the outpatient or community-based placement;

(2) medically necessary medication; and

(3) supported housing [treatment with psychoactive medication].

(d) Subsection (c)(2) does not authorize a person to administer medication to a patient who refuses to take the medication voluntarily, except in cases of emergency, as defined under Subchapter G, Chapter 574, Health and Safety Code. Emergency treatment under this subsection may not include long-acting injectable medications.

(e) The prescribed regimen must be incorporated into the court order, and the acquitted person is entitled to petition the court for specific enforcement of the court order.

(f) [(d)] The court may order that community supervision of the acquitted person be provided and funded by the appropriate community supervision and corrections department or the [facility administrator of a community center that provides mental health or mental retardation services.

[(e) The court may order the acquitted person to participate in a supervision program funded by the] Texas Correctional Office on Offenders with Medical or Mental Impairments. For purposes of this subsection, "community supervision" means a court's placement of an acquitted person under public safety conditions designed to monitor the acquitted person's compliance with non-treatment-based conditions of the commitment order.

(g) A treatment provider is not responsible for community supervision of the acquitted person.

(h) [(f)] An order under this article must identify the person responsible for administering an ordered regimen of outpatient or community-based treatment [and supervision]. At least seven days before the entry of the order, the responsible person shall submit to the court a general program of the care or treatment regimen to be provided to the acquitted person consistent with the care or treatment regimen authorized by Subsection (c).

(i) [(g)] In determining whether an acquitted person should be ordered to receive outpatient or community-based treatment [and supervision] rather than inpatient care or residential treatment, the court shall have as its primary concern the protection of society. Consistent with this chapter, the court shall order the acquitted person into the least restrictive appropriate treatment setting.

SECTION 24. Article 46C.264, Code of Criminal Procedure, is amended to read as follows:

Art. 46C.264. LOCATION OF COURT-ORDERED OUTPATIENT OR COMMUNITY-BASED TREATMENT [AND SUPERVISION]. (a) The court may order the outpatient or community-based treatment [and supervision] to be provided in any appropriate county where the necessary resources are available.

(b) The court may not designate an outpatient or community-based treatment provider as responsible for administering the court-ordered treatment without the consent of the provider. [This article does not supersede any requirement under the other provisions of this subchapter to obtain the consent of a treatment and supervision provider to administer the court-ordered outpatient or community-based treatment and supervision.]

SECTION 25. Article 46C.265, Code of Criminal Procedure, is amended to read as follows:

Art. 46C.265. [SUPERVISORY] RESPONSIBILITY OF [FOR] OUTPATIENT OR COMMUNITY-BASED TREATMENT PROVIDER [AND SUPERVISION]. (a) The person responsible for administering a regimen of outpatient or community-based treatment [and supervision] shall be solely responsible for:

(1) monitoring [monitor] the condition of the acquitted person; and

(2) determining [determine] whether the acquitted person is complying with the regimen of treatment [and supervision].

(b) The person responsible for administering a regimen of outpatient or community-based treatment [and supervision] shall notify the court ordering that treatment, [and supervision and] the attorney representing the state, and the acquitted person's attorney if the person:

(1) fails to comply with the regimen; and

(2) becomes likely to cause serious harm to another.

SECTION 26. The heading to Article 46C.266, Code of Criminal Procedure, is amended to read as follows:

Art. 46C.266. MODIFICATION OR REVOCATION OF ORDER FOR OUTPATIENT OR COMMUNITY-BASED TREATMENT [AND SUPERVISION].

SECTION 27. Articles 46C.266(a), (b), and (c), Code of Criminal Procedure, are amended to read as follows:

(a) The court, on its own motion or the motion of any interested person and after notice to the acquitted person and a hearing, may modify or revoke court-ordered outpatient or community-based treatment [and supervision].

(b) At the hearing, the court without a jury shall determine whether the state has established clear and convincing evidence that:

(1) the acquitted person failed to comply with the regimen in a manner or under circumstances indicating the person will become likely to cause serious harm to another if the person is provided continued outpatient or community-based treatment [and supervision]; or

(2) the acquitted person has become likely to cause serious harm to another if provided continued outpatient or community-based treatment [and supervision].

(c) On a determination under Subsection (b), the court may take any appropriate action, including:

(1) revoking court-ordered outpatient or community-based treatment [and supervision] and ordering the person committed for inpatient or residential care; or

(2) imposing additional or more stringent terms on continued outpatient or community-based treatment.

SECTION 28. The heading to Article 46C.267, Code of Criminal Procedure, is amended to read as follows:

Art. 46C.267. DETENTION PENDING PROCEEDINGS TO MODIFY OR REVOKE ORDER FOR OUTPATIENT OR COMMUNITY-BASED TREATMENT [AND SUPERVISION].

SECTION 29. Articles 46C.267(a), (b), (d), and (e), Code of Criminal Procedure, are amended to read as follows:

(a) The state or the head of the facility or other person responsible for administering a regimen of outpatient or community-based treatment [and supervision] may file a sworn application with the court for the detention of an acquitted person receiving court-ordered outpatient or community-based treatment [and supervision]. The application must state that the person meets the criteria of Article 46C.266 and provide a detailed explanation of that statement.

(b) If the court determines that the application establishes probable cause to believe the order for outpatient or community-based treatment [and supervision] should be revoked, the court shall issue an order to an on-duty peace officer authorizing the acquitted person to be taken into custody and brought before the court.

(d) When an acquitted person is brought before the court, the court shall determine whether there is probable cause to believe that the order for outpatient or community-based treatment [and supervision] should be revoked. On a finding that probable cause for revocation exists, the court shall order the person held in protective custody pending a determination of whether the order should be revoked.

(e) An acquitted person may be detained under an order for protective custody for a period not to exceed 72 hours, excluding Saturdays, Sundays, legal holidays, and the period prescribed by Section 574.025(b), Health and Safety Code, for an extreme emergency. A person so detained shall be evaluated within 24 hours after being detained to determine whether the person presents a substantial risk of serious harm to others so that the person cannot be at liberty pending the hearing. Substantial risk of serious harm may be demonstrated by the person's behavior or by evidence of severe emotional distress and deterioration. If the evaluation shows that the person does not meet the criteria for continued detention, the facility shall release the person. If the person is found to present a substantial risk of serious harm to others, as described by this subsection, the hearing required by Article 46C.266 shall be conducted before the expiration of the period authorized by this subsection for the order of protective custody.

SECTION 30. Articles 46C.268(a), (b), and (f), Code of Criminal Procedure, are amended to read as follows:

(a) An acquitted person, 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].

(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.

SECTION 31. Articles 46C.269(a), (b), and (c), Code of Criminal Procedure, are amended to read as follows:

(a) The jurisdiction of the court over a person 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 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 person must be discharged from any inpatient treatment or residential care or outpatient or community-based treatment [and supervision] ordered under this subchapter.

(c) An inpatient or residential care facility to which a person has been committed under this subchapter or 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 person ends under this article.

SECTION 32. Article 46C.270, Code of Criminal Procedure, is amended by amending Subsection (b) and adding Subsections (b-1) and (b-2) to read as follows:

(b) Either the acquitted person or the state may appeal to the court of appeals from the county in which the order is entered 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.268 or denying a request for discharge of an acquitted person.

(b-1) The entity responsible for administering a regimen of inpatient treatment or residential care or outpatient or community-based treatment may appeal to the court of appeals for the county in which the order was entered from:

(1) an initial inpatient commitment order requiring the facility to provide inpatient treatment or residential care to the acquitted person entered under Article 46C.256;

(2) an initial outpatient commitment order requiring the treatment provider to provide outpatient or community-based treatment to the acquitted person entered under Article 46C.257; or

(3) a commitment order renewing inpatient or outpatient treatment requiring the treatment provider to provide treatment entered under Article 46C.261.

(b-2) An appeal under Subsection (b-1) shall be given preferential setting.

SECTION 33. Subchapter F, Chapter 46C, Code of Criminal Procedure, is amended by adding Article 46C.271 to read as follows:

Art. 46C.271. HABEAS CORPUS PROCEEDINGS. (a) A petition for a writ of habeas corpus must be filed in the court of appeals for the county in which the applicable order is entered or ruling is received.

(b) A habeas corpus proceeding under this article shall be given preferential setting.

SECTION 34. Section 533.0095(a), Health and Safety Code, is amended to read as follows:

(a) The executive commissioner of the Health and Human Services Commission by rule shall require the department to collect information and maintain current records regarding a person found not guilty of an offense by reason of insanity under Chapter 46C, Code of Criminal Procedure, who is:

(1) ordered by a court to receive inpatient mental health services under Chapter 574 or under Chapter 46C, Code of Criminal Procedure;

(2) committed by a court for long-term placement in a residential care facility under Chapter 593 or under Chapter 46C, Code of Criminal Procedure; or

(3) ordered by a court to receive outpatient or community-based treatment [and supervision].

SECTION 35. 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 conduct charged, the actor, as a result of severe mental disease or defect, did not appreciate [know] that the actor's [his] conduct was either legally or morally wrong.

SECTION 36. The change in law made by this Act in amending Section 8.01(a), Penal Code, 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 section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

SECTION 37. Notwithstanding Section 5, Chapter 831, Acts of the 79th Legislature, Regular Session, 2005, a determination of not guilty by reason of insanity is governed by Chapter 46C, Code of Criminal Procedure, for a person who committed any element of the offense before September 1, 2005, under former Article 46.03, Code of Criminal Procedure.

SECTION 38. This Act takes effect September 1, 2013.