2017S0351-1 03/01/17

By: Perry S.B. No. 1183

A BILL TO BE ENTITLED

AN ACT

relating to procedures regarding criminal defendants who are or may be persons with a mental illness or an intellectual disability and to the period for which a person may be committed to receive certain temporary mental health services.

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

SECTION 1. Article 32A.01, Code of Criminal Procedure, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:

(a) Insofar as is practicable, the trial of a criminal action shall be given preference over trials of civil cases, and the trial of a criminal action against a defendant who is detained in jail pending trial of the action shall be given preference over trials of other criminal actions not described by Subsection (b) or (c).

(c) Except as provided by Subsection (b), the trial of a criminal action against a defendant who has been determined to be restored to competency under Article 46B.084 shall be given preference over other matters before the court, whether civil or criminal.

SECTION 2. The heading to Article 46B.0095, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.0095. MAXIMUM PERIOD OF COMMITMENT OR [OUTPATIENT TREATMENT] PROGRAM PARTICIPATION DETERMINED BY MAXIMUM TERM FOR OFFENSE.

SECTION 3. Articles 46B.0095(a), (b), (c), and (d), Code of Criminal Procedure, are amended to read as follows:

(a) A defendant may not, under Subchapter D or E or any other provision of this chapter, be committed to a mental hospital or other inpatient or residential facility or to a jail-based restoration of competency program, ordered to participate in an outpatient [treatment] program, or subjected to any combination of [both] inpatient or [and] outpatient treatment or program participation for a cumulative period that exceeds the maximum term provided by law for the offense for which the defendant was to be tried, except that if the defendant is charged with a misdemeanor and has been ordered only to participate in an outpatient [treatment] program under Subchapter D or E, the maximum period of restoration is two years.

(b) On expiration of the maximum restoration period under Subsection (a), the mental hospital, [or other inpatient or residential] facility, or [outpatient treatment] program provider identified in the most recent order of commitment or order of outpatient [treatment] program participation under this chapter shall assess the defendant to determine if civil proceedings under Subtitle C or D, Title 7, Health and Safety Code, are appropriate. The defendant may be confined for an additional period in a mental hospital or other [inpatient or residential] facility or jail-based program or ordered to participate for an additional period in an outpatient [treatment] program, as appropriate, only pursuant to civil proceedings conducted under Subtitle C or D, Title 7, Health and Safety Code, by a court with probate jurisdiction.

(c) The cumulative period described by Subsection (a):

(1) begins on the date the initial order of commitment or initial order for outpatient [treatment] program participation is entered under this chapter; and

(2) in addition to any inpatient or outpatient treatment periods or program participation periods described by Subsection (a), includes any time that, following the entry of an order described by Subdivision (1), the defendant is confined in a correctional facility, as defined by Section 1.07, Penal Code, or is otherwise in the custody of the sheriff during or while awaiting, as applicable:

(A) the defendant's transfer to:

(i) a mental hospital or other inpatient or residential facility; or

(ii) a jail-based restoration of competency program;

(B) the defendant's release on bail to participate in an outpatient treatment program; or

(C) a criminal trial following any temporary restoration of the defendant's competency to stand trial.

(d) The court shall credit to the cumulative period described by Subsection (a) any time that a defendant, following arrest for the offense for which the defendant was to be tried, is confined in a correctional facility, as defined by Section 1.07, Penal Code, before the initial order of commitment or initial order for outpatient [treatment] program participation is entered under this chapter.

SECTION 4. Article 46B.010, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.010. MANDATORY DISMISSAL OF MISDEMEANOR CHARGES. If a court orders that a defendant charged with a misdemeanor punishable by confinement be committed to a mental hospital or other inpatient or residential facility or to a jail-based restoration of competency program, participate in an outpatient [treatment] program, or be subjected to any combination of [both] inpatient or [and] outpatient treatment or program participation, and the defendant is not tried before the expiration of the maximum period of restoration described by Article 46B.0095:

(1) on the motion of the attorney representing the state, the court shall dismiss the charge; or

(2) on the motion of the attorney representing the defendant and notice to the attorney representing the state, the court:

(A) shall set the matter to be heard not later than the 10th day after the date of filing of the motion; and

(B) may dismiss the charge on a finding that the defendant was not tried before the expiration of the maximum period of restoration.

SECTION 5. Article 46B.026, Code of Criminal Procedure, is amended by adding Subsection (d) to read as follows:

(d) The court shall submit to the Office of Court Administration of the Texas Judicial System on a monthly basis the number of reports provided to the court under this article.

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

(a) Except as provided by Subsection (b), on a determination that a defendant is incompetent to stand trial and is subject to an initial restoration period, the court shall:

(1) if the defendant is charged with an offense punishable as a Class B misdemeanor:

(A) commit the defendant to a program [facility] under Article 46B.073; or

(B) [(2)] release the defendant on bail under Article 46B.0711; or

(2) if the defendant is charged with an offense punishable as a Class A misdemeanor or any higher category of offense:

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

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

SECTION 7. Subchapter D, Chapter 46B, Code of Criminal Procedure, is amended by adding Article 46B.0711 to read as follows:

Art. 46B.0711. RELEASE ON BAIL FOR CLASS B MISDEMEANOR. (a) Subject to conditions reasonably related to ensuring public safety and the effectiveness of the defendant's treatment, if the court determines that a defendant charged with an offense punishable as a Class B misdemeanor and found incompetent to stand trial is not a danger to others and may be safely treated on an outpatient basis with the specific objective of attaining competency to stand trial, the court shall:

(1) release the defendant on bail or continue the defendant's release on bail; and

(2) order the defendant to participate in an outpatient treatment program for a period not to exceed 90 days.

(b) If the defendant successfully completes the outpatient treatment program described by Subsection (a), the court shall:

(1) on the motion of the attorney representing the state, dismiss the charge; or

(2) proceed as otherwise required by this subchapter.

(c) If the defendant does not successfully complete the outpatient treatment program described by Subsection (a), the court may:

(1) for the remainder of the 90-day period described by Subsection (a)(2), commit the defendant to a jail-based restoration of competency program under Article 46B.073 if the maximum period of restoration described by Article 46B.0095 has not expired; or

(2) on the motion of the attorney representing the state, dismiss the charge.

SECTION 8. The heading to Article 46B.072, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.072. RELEASE ON BAIL FOR CLASS A MISDEMEANOR OR FELONY.

SECTION 9. Article 46B.072, Code of Criminal Procedure, is amended by amending Subsection (a-1) and adding Subsections (e) and (f) to read as follows:

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

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

(2) shall release on bail a defendant found incompetent to stand trial with respect to an offense punishable as a Class A [a] misdemeanor or shall continue the defendant's release on bail.

(e) If the defendant successfully completes the outpatient treatment program described by Subsection (a-1), the court shall:

(1) on the motion of the attorney representing the state, dismiss the charge; or

(2) proceed as otherwise required by this subchapter.

(f) If the defendant does not successfully complete the outpatient treatment program described by Subsection (a-1), the court may:

(1) for the remainder of the 120-day period described by Subsection (b), commit the defendant to a facility or to a jail-based restoration of competency program under Article 46B.073 if the maximum period of restoration described by Article 46B.0095 has not expired; or

(2) on the motion of the attorney representing the state, dismiss the charge.

SECTION 10. Article 46B.073, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.073. COMMITMENT FOR RESTORATION TO COMPETENCY. (a) This article applies only to a defendant [not released on bail] who is subject to an initial restoration period based on Article 46B.071 and who:

(1) was not released on bail; or

(2) if released on bail, is made subject to this article by action of the court under Article 46B.0711(c) or 46B.072(f).

(b) For further examination, psychiatric stabilization, and treatment toward the specific objective of the defendant attaining competency to stand trial, the court shall commit a defendant described by Subsection (a) to a mental health facility, [or] residential care facility, or jail-based restoration of competency program for the applicable period as follows:

(1) a period of not more than 60 days, if the defendant is described by Subsection (a)(1) and charged with an offense punishable as a misdemeanor; [or]

(2) a period of not more than 120 days, if the defendant is described by Subsection (a)(1) and charged with an offense punishable as a felony; or

(3) the remainder of the restoration period specified by the court under Article 46B.0711 or 46B.072, as applicable.

(b-1) A defendant charged with an offense punishable as a Class B misdemeanor may be committed under this subchapter only to a jail-based restoration of competency program.

(c) If the defendant is charged with an offense listed in Article 17.032(a), other than an offense listed in Article 17.032(a)(6), or the indictment alleges an affirmative finding under Article 42A.054(c) or (d), the court shall enter an order committing the defendant for psychiatric stabilization to the maximum security unit of any facility designated by the Department of State Health Services, to an agency of the United States operating a mental hospital, [or] to a Department of Veterans Affairs hospital, or to a jail-based restoration of competency program.

(d) If the defendant is not charged with an offense described by Subsection (c) and the indictment does not allege an affirmative finding under Article 42A.054(c) or (d), the court shall enter an order committing the defendant for psychiatric stabilization to a jail-based restoration of competency program or to a mental health facility or residential care facility determined to be appropriate by the local mental health authority or local intellectual and developmental disability authority.

(e) On notification from the head of a facility or a program provider under Article 46B.079(b)(1), the court shall order the defendant to receive competency restoration education services in a jail-based restoration of competency program or in an outpatient competency restoration education program, as appropriate.

(f) If a defendant for whom an order is entered under Subsection (e) was committed for psychiatric stabilization to a facility other than a jail-based restoration of competency program, the court shall send a copy of that order to:

(1) the sheriff of the county in which the court is located; and

(2) the head of the facility to which the defendant was committed for psychiatric stabilization [Notwithstanding Subsections (b), (c), and (d) and notwithstanding the contents of the applicable order of commitment, in a county in which the Department of State Health Services operates a jail-based restoration of competency pilot program under Article 46B.090, a defendant for whom an order is issued under this article committing the defendant to a mental health facility or residential care facility shall be provided competency restoration services at the jail under the pilot program if the service provider at the jail determines the defendant will immediately begin to receive services. If the service provider at the jail determines the defendant will not immediately begin to receive competency restoration services, the defendant shall be transferred to the appropriate mental health facility or residential care facility as provided by the court order. This subsection expires September 1, 2019].

SECTION 11. Article 46B.074(a), Code of Criminal Procedure, is amended to read as follows:

(a) A defendant may be committed to a jail-based restoration of competency program, mental health facility, or residential care facility under this subchapter only on competent medical or psychiatric testimony provided by an expert qualified under Article 46B.022.

SECTION 12. Article 46B.075, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.075. TRANSFER OF DEFENDANT TO FACILITY OR [OUTPATIENT TREATMENT] PROGRAM. An order issued under Article 46B.0711, 46B.072, or 46B.073 must place the defendant in the custody of the sheriff for transportation to the facility or [outpatient treatment] program, as applicable, in which the defendant is to receive treatment for purposes of competency restoration.

SECTION 13. Articles 46B.0755(a), (b), and (d), Code of Criminal Procedure, are amended to read as follows:

(a) Notwithstanding any other provision of this subchapter, if the court receives credible evidence indicating that the defendant has been restored to competency at any time after the defendant's incompetency trial under Subchapter C but before the defendant is transported under Article 46B.075 to the [a mental health facility, residential care] facility[,] or [outpatient treatment] program, as applicable, the court may appoint disinterested experts to reexamine the defendant in accordance with Subchapter B. The court is not required to appoint the same expert or experts who performed the initial examination of the defendant under that subchapter.

(b) If after a reexamination of the defendant the applicable expert's report states an opinion that the defendant remains incompetent, the court's order under Article 46B.0711, 46B.072, or 46B.073 remains in effect, and the defendant shall be transported to the facility or [outpatient treatment] program as required by Article 46B.075. If after a reexamination of the defendant the applicable expert's report states an opinion that the defendant has been restored to competency, the court shall withdraw its order under Article 46B.0711, 46B.072, or 46B.073 and proceed under Subsection (c) or (d).

(d) The court shall hold a hearing to determine whether the defendant has been restored to competency if any party fails to agree or if the court fails to concur that the defendant is competent to stand trial. If a court holds a hearing under this subsection, on the request of the counsel for either party or the motion of the court, a jury shall make the competency determination. For purposes of the hearing, incompetency is presumed, and the defendant's competency must be proved by a preponderance of the evidence. If after the hearing the defendant is again found to be incompetent to stand trial, the court shall issue a new order under Article 46B.0711, 46B.072, or 46B.073, as appropriate based on the defendant's current condition.

SECTION 14. Article 46B.076, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.076. COURT'S ORDER. (a) If the defendant is found incompetent to stand trial, not later than the date of the order of commitment or of release on bail, as applicable, the court shall send a copy of the order to the applicable facility [to which the defendant is committed] or [the outpatient treatment] program [to which the defendant is released]. The court shall also provide to the facility or [outpatient treatment] program copies of the following made available to the court during the incompetency trial:

(1) reports of each expert;

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

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

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

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

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

(b) The court shall order that the transcript of all medical testimony received by the jury or court be promptly prepared by the court reporter and forwarded to the applicable [proper] facility or [outpatient treatment] program.

SECTION 15. Article 46B.077, Code of Criminal Procedure, is amended to read as follows:

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

(1) develop an individual program of treatment;

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

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

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

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

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

SECTION 16. Article 46B.078, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.078. CHARGES SUBSEQUENTLY DISMISSED. If the charges pending against a defendant are dismissed, the court that issued the order under Article 46B.0711, 46B.072, or 46B.073 shall send a copy of the order of dismissal to the sheriff of the county in which the court is located and to the head of the facility, the provider of the jail-based restoration of competency program, or the provider of the outpatient [treatment] program, as appropriate. On receipt of the copy of the order, the facility or [outpatient treatment] program shall discharge the defendant into the care of the sheriff for transportation in the manner described by Article 46B.082.

SECTION 17. Article 46B.079, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.079. NOTICE AND REPORT TO COURT. (a) The head of the facility, the provider of the jail-based restoration of competency program, or the provider of the outpatient [treatment] program, as appropriate, not later than the 15th day before the date on which the initial restoration period is to expire according to the terms of the order or under Article 46B.0095 or other applicable provisions of this chapter, shall notify the applicable court that the period is about to expire.

(b) The head of the facility, jail-based restoration of competency program provider, or outpatient [treatment] program provider shall promptly notify the court when the head of the facility or [outpatient treatment] program provider believes that:

(1) the defendant has attained psychiatric stabilization but has not attained competency to stand trial;

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

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

(c) When the head of the facility or [outpatient treatment] program provider gives notice to the court under Subsection (a), (b)(2), or (b)(3) [(b)], the head of the facility or [outpatient treatment] program provider also shall file a final report with the court stating the reason for the proposed discharge under this chapter and including a list of the types and dosages of medications prescribed for the defendant while the defendant was in the facility or participating in the [outpatient treatment] program. To enable any objection to the findings of the report to be made in a timely manner under Article 46B.084(a-1), the court shall provide copies of the report to the attorney representing the defendant and the attorney representing the state.

(d) If the head of the facility or [outpatient treatment] program provider notifies the court that the initial restoration period is about to expire, the notice may contain a request for an extension of the period for an additional period of 60 days and an explanation for the basis of the request. An explanation provided under this subsection must include a description of any evidence indicating a reduction in the severity of the defendant's symptoms or impairment.

SECTION 18. Article 46B.080(a), Code of Criminal Procedure, is amended to read as follows:

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

SECTION 19. Article 46B.081, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.081. RETURN TO COURT. Subject to Article 46B.082(b), a defendant committed or released on bail under this subchapter shall be returned to the applicable court as soon as practicable after notice to the court is provided under Article 46B.079(a), (b)(2), or (b)(3) [46B.079], but not later than the date of expiration of the period for restoration specified by the court under Article 46B.0711, 46B.072, or 46B.073.

SECTION 20. The heading to Article 46B.082, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.082. TRANSPORTATION OF DEFENDANT TO COURT.

SECTION 21. Article 46B.082(b), Code of Criminal Procedure, is amended to read as follows:

(b) If before the 15th day after the date on which the court received notification under Article 46B.079(a), (b)(2), or (b)(3), [46B.079] a defendant committed to a facility or jail-based program or ordered to participate in an outpatient [treatment] program has not been transported to the court that issued the order under Article 46B.0711, 46B.072, or 46B.073, as applicable, the head of the facility or provider of the jail-based program to which the defendant is committed or the provider of the outpatient [treatment] program in which the defendant is participating shall cause the defendant to be promptly transported to the court and placed in the custody of the sheriff of the county in which the court is located. The county in which the court is located shall reimburse the Department of State Health Services or the Health and Human [Department of Aging and Disability] Services Commission, as appropriate, for the mileage and per diem expenses of the personnel required to transport the defendant, calculated in accordance with rates provided in the General Appropriations Act for state employees.

SECTION 22. Subchapter D, Chapter 46B, Code of Criminal Procedure, is amended by adding Article 46B.0825 to read as follows:

Art. 46B.0825. DISCHARGE AND TRANSPORTATION OF DEFENDANT AFTER PSYCHIATRIC STABILIZATION. (a) As soon as practicable after receiving a copy of an order under Article 46B.073(f)(2), the applicable facility shall discharge the defendant into the care of the sheriff of the county in which the court is located, and the sheriff or the sheriff's designee shall transport the defendant to the jail-based restoration of competency program or outpatient competency restoration education program, as appropriate.

(b) A jail-based restoration of competency program or outpatient competency restoration education program that receives a defendant under this article shall give to the court:

(1) notice regarding the defendant's entry into the program for purposes of receiving competency restoration education services; and

(2) subsequent notice as otherwise required under Article 46B.079.

SECTION 23. Article 46B.083, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.083. SUPPORTING COMMITMENT INFORMATION PROVIDED BY FACILITY [HEAD] OR [OUTPATIENT TREATMENT] PROGRAM [PROVIDER]. (a) If the head of the facility, the jail-based restoration of competency program provider, or the outpatient [treatment] program provider believes that the defendant is a person with mental illness and meets the criteria for court-ordered mental health services under Subtitle C, Title 7, Health and Safety Code, the head of the facility or the [outpatient treatment] program provider shall have submitted to the court a certificate of medical examination for mental illness.

(b) If the head of the facility, the jail-based restoration of competency program provider, or the outpatient [treatment] program provider believes that the defendant is a person with an intellectual disability, the head of the facility or the [outpatient treatment] program provider shall have submitted to the court an affidavit stating the conclusions reached as a result of the examination.

SECTION 24. Articles 46B.086(a), (b), (c), and (d), Code of Criminal Procedure, are amended to read as follows:

(a) This article applies only to a defendant:

(1) who is determined under this chapter to be incompetent to stand trial;

(2) who either:

(A) remains confined in a correctional facility, as defined by Section 1.07, Penal Code, for a period exceeding 72 hours while awaiting transfer to an inpatient mental health facility, a residential care facility, a jail-based restoration of competency program, or an outpatient [treatment] program;

(B) is committed to an inpatient mental health facility, [or] a residential care facility, or a jail-based restoration of competency program for the purpose of competency restoration;

(C) is confined in a correctional facility while awaiting further criminal proceedings following competency restoration treatment;

(D) is subject to Article 46B.0711, if the court has made the determinations required by Subsection (a) of that article; or

(E) [(D)] is subject to Article 46B.072, if the court has made the determinations required by Subsection (a-1) of that article;

(3) for whom a correctional facility that employs or contracts with a licensed psychiatrist, an inpatient mental health facility, a residential care facility, a jail-based restoration of competency program, 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 or 592.156, Health and Safety Code, if applicable, has been found to not meet the criteria prescribed by Sections 574.106(a) and (a-1) or 592.156(a) and (b), Health and Safety Code, for court-ordered administration of psychoactive medications.

(b) If a defendant described by Subsection (a) refuses to take psychoactive medications as required by the defendant's continuity of care plan, the director of the [correctional] facility or [outpatient treatment] program provider, as applicable, shall notify the court in which the criminal proceedings are pending of that fact not later than the end of the next business day following the refusal. The court shall promptly notify the attorney representing the state and the attorney representing the defendant of the defendant's refusal. The attorney representing the state may file a written motion to compel medication. The motion to compel medication must be filed not later than the 15th day after the date a judge issues an order stating that the defendant does not meet the criteria for court-ordered administration of psychoactive medications under Section 574.106 or 592.156, Health and Safety Code, except that, for a defendant in an outpatient [treatment] program, the motion may be filed at any time.

(c) The court, after notice and after a hearing held not later than the 10th day after the motion to compel medication is filed, may authorize the director of the [correctional] facility or the program provider, as applicable, to have the medication administered to the defendant, by reasonable force if necessary. A hearing under this subsection may be conducted using an electronic broadcast system as provided by Article 46B.013.

(d) The court may issue an order under this article only if the order is supported by the testimony of two physicians, one of whom is the physician at or with the applicable [correctional] facility or [outpatient treatment] program who is prescribing the medication as a component of the defendant's continuity of care plan and another who is not otherwise involved in proceedings against the defendant. The court may require either or both physicians to examine the defendant and report on the examination to the court.

SECTION 25. The heading to Article 46B.090, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.090. JAIL-BASED RESTORATION OF COMPETENCY [PILOT] PROGRAM IMPLEMENTED BY COMMISSION.

SECTION 26. Articles 46B.090(a), (a-1), (b), (c), (f), (g), (i), (j), (k), (l), and (m), Code of Criminal Procedure, are amended to read as follows:

(a) In this article:

(1) "Commission"[, "department"] means the Health and Human Services Commission [Department of State Health Services].

(2) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission.

(a-1) The commission may [If the legislature appropriates to the department the funding necessary for the department to operate a jail-based restoration of competency pilot program as described by this article, the department shall] develop and implement a jail-based restoration of competency [the pilot] program in any county [one or two counties] in this state that chooses [choose] to participate in the [pilot] program. In developing the [pilot] program, the commission [department] shall coordinate and allow for input from a [each] participating county.

(b) The commission [department] shall contract with a provider of jail-based competency restoration services to provide services under a [the pilot] program implemented [if the department develops a pilot program] under this article. The commission may contract with a different provider for each program.

(c) The executive [Not later than November 1, 2013, the] commissioner [of the department] shall adopt rules as necessary to implement a [the pilot] program[. In adopting rules] under this article, including rules that [the commissioner shall] specify the types of information the commission [department] must collect [during the operation of the pilot program] for use in evaluating a [the outcome of the pilot] program.

(f) To contract with the commission [department] under Subsection (b), a provider of jail-based competency restoration services must demonstrate to the commission [department] that:

(1) the provider:

(A) has previously provided jail-based competency restoration services for one or more years and is certified by a nationwide nonprofit organization that accredits behavioral health care organizations and programs; [or]

(B) is a local mental health authority in good standing with the commission [that has previously provided competency restoration services]; or

(C) operates under a contract with a local mental health authority in good standing with the commission; and

(2) the provider's jail-based restoration of competency [restoration] program:

(A) provides clinical treatment and competency restoration through the use of [uses] a multidisciplinary treatment team [to provide clinical treatment that is:

[(i) directed toward the specific objective of restoring the defendant's competency to stand trial; and

[(ii) similar to the clinical treatment provided as part of a competency restoration program at an inpatient mental health facility];

(B) employs or contracts for the services of at least one psychiatrist or psychologist;

(C) provides jail-based competency restoration services through trained and experienced staff [assigns staff members to defendants participating in the program at an average ratio not lower than 3.7 to 1]; [and]

(D) ensures the safety of participants [provides weekly treatment hours commensurate to the treatment hours provided as part of a competency restoration program at an inpatient mental health facility];

(E) operates in the jail in a designated space that is separate from the space used for the general population of the jail;

(F) provides general health care, mental health treatment, and substance use disorder treatment to participants, as necessary, for restoration of competency; and

(G) supplies clinically appropriate psychoactive medications for purposes of administering court-ordered medication to participants as applicable and in accordance with Article 46B.086 of this code and Section 574.106, Health and Safety Code

[(3) the provider is certified by a nationwide nonprofit organization that accredits health care organizations and programs, such as the Joint Commission on Health Care Staffing Services, or the provider is a local mental health authority in good standing with the department; and

[(4) the provider has a demonstrated history of successful jail-based competency restoration outcomes or, if the provider is a local mental health authority, a demonstrated history of successful competency restoration outcomes].

(g) A contract under Subsection (b) must require a [the] designated provider to collect and submit to the commission [department] the information specified by rules adopted under Subsection (c).

(i) The psychiatrist or psychologist for the provider shall conduct at least two full psychiatric or psychological evaluations of the defendant during the period the defendant receives competency restoration services in the jail. The psychiatrist or psychologist must conduct one evaluation not later than the 21st day and one evaluation not later than the 55th day after the date the defendant begins to participate in the [pilot] program. The psychiatrist or psychologist shall submit to the court a report concerning each evaluation required under this subsection.

(j) If at any time during a defendant's participation in a [the jail-based restoration of competency pilot] program implemented under this article the psychiatrist or psychologist for the provider determines that the defendant has attained competency to stand trial:

(1) the psychiatrist or psychologist for the provider shall promptly issue and send to the court a report demonstrating that fact; and

(2) the court shall consider that report as the report of an expert stating an opinion that the defendant has been restored to competency for purposes of Article 46B.0755(a) or (b).

(k) If at any time during a defendant's participation in a [the jail-based restoration of competency pilot] program implemented under this article the psychiatrist or psychologist for the provider determines that the defendant's competency to stand trial is unlikely to be restored in the foreseeable future:

(1) the psychiatrist or psychologist for the provider shall promptly issue and send to the court a report demonstrating that fact; and

(2) the court shall:

(A) proceed under Subchapter E or F and order the transfer of the defendant, without unnecessary delay, to the first available facility that is appropriate for that defendant, as provided under Subchapter E or F, as applicable; or

(B) release the defendant on bail as permitted under Chapter 17.

(l) If the psychiatrist or psychologist for the provider determines that a defendant ordered to participate in a [the pilot] program implemented under this article has not been restored to competency by the end of the 60th day after the date the defendant began to participate in the [pilot] program:

(1) for a defendant charged with a felony, the defendant shall be transferred, without unnecessary delay and for the remainder of the period prescribed by Article 46B.073(b), to the first available facility that is appropriate for that defendant as provided by Article 46B.073(c) or (d); and

(2) for a defendant charged with a misdemeanor, the court may:

(A) order a single extension under Article 46B.080 and, notwithstanding Article 46B.073(b-1), the transfer of the defendant without unnecessary delay to the appropriate mental health facility or residential care facility as provided by Article 46B.073(d) for the remainder of the period under the extension;

(B) proceed under Subchapter E or F;

(C) release the defendant on bail as permitted under Chapter 17; or

(D) dismiss the charges in accordance with Article 46B.010.

(m) Unless otherwise provided by this article, the provisions of this chapter, including the maximum periods prescribed by Article 46B.0095, apply to a defendant receiving competency restoration services, including competency restoration education services, under a [the pilot] program implemented under this article in the same manner as those provisions apply to any other defendant who is subject to proceedings under this chapter.

SECTION 27. Subchapter D, Chapter 46B, Code of Criminal Procedure, is amended by adding Article 46B.091 to read as follows:

Art. 46B.091. JAIL-BASED RESTORATION OF COMPETENCY PROGRAM IMPLEMENTED BY COUNTY. (a) In this article, "commission" means the Health and Human Services Commission.

(b) A county or counties jointly may develop and implement a jail-based restoration of competency program.

(c) A county that implements a program under this article shall employ or contract with a provider of jail-based competency restoration services that:

(1) is certified by a nationwide nonprofit organization that accredits behavioral health care organizations and programs;

(2) is a local mental health authority in good standing with the commission; or

(3) provides competency restoration services under a contract with a local mental health authority in good standing with the commission.

(d) A jail-based restoration of competency program must:

(1) provide jail-based competency restoration services through trained and experienced staff;

(2) provide clinical treatment and competency restoration through the use of a multidisciplinary treatment team;

(3) ensure the safety of participants;

(4) operate in the jail in a designated space that is separate from the space used for the general population of the jail;

(5) provide general health care, mental health treatment, and substance use disorder treatment to participants, as necessary for restoration of competency; and

(6) supply clinically appropriate psychoactive medications for purposes of administering court-ordered medication to participants as applicable and in accordance with Article 46B.086 of this code and Section 574.106, Health and Safety Code.

(e) The commission may inspect on behalf of the state any aspect of a jail-based restoration of competency program.

(f) If at any time during a defendant's participation in the jail-based restoration of competency program a psychiatrist or psychologist for the provider determines that the defendant has attained competency to stand trial:

(1) the psychiatrist or psychologist for the provider shall promptly issue and send to the court a report demonstrating that fact; and

(2) the court shall consider that report as the report of an expert stating an opinion that the defendant has been restored to competency for purposes of Article 46B.0755(a) or (b).

(g) Unless otherwise provided by this article, the provisions of this chapter, including the maximum periods prescribed by Article 46B.0095, apply to a defendant receiving competency restoration services, including competency restoration education services, under a program implemented under this article in the same manner as those provisions apply to any other defendant who is subject to proceedings under this chapter.

SECTION 28. Section 574.034(g), Health and Safety Code, is amended to read as follows:

(g) An order for temporary inpatient or outpatient mental health services shall state that treatment is authorized for not longer than 45 [90] days unless the judge finds that a longer period is necessary. [The order may not specify a shorter period.]

SECTION 29. Articles 46B.090(h), (n), and (o), Code of Criminal Procedure, are repealed.

SECTION 30. (a) Except as provided by Subsection (b) of this section, the changes in law made by this Act apply only to a defendant charged with an offense committed on or after the effective date of this Act. A defendant charged with an offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this subsection, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

(b) The change in law made by this Act to Section 574.034(g), Health and Safety Code, applies only to an order for court-ordered temporary mental health services that is issued on or after the effective date of this Act. An order issued before the effective date of this Act is governed by the law in effect on the date the order was issued, and the former law is continued in effect for that purpose.

SECTION 31. This Act takes effect September 1, 2017.