By: Zaffirini, Kolkhorst S.B. No. 562

Menéndez

A BILL TO BE ENTITLED

AN ACT

relating to criminal or juvenile procedures regarding persons who are or may be persons with a mental illness or intellectual disability.

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

SECTION 1. Section 8(a), Article 42.09, Code of Criminal Procedure, is amended to read as follows:

(a) A county that transfers a defendant to the Texas Department of Criminal Justice under this article shall deliver to an officer designated by the department:

(1) a copy of the judgment entered pursuant to Article 42.01, completed on a standardized felony judgment form described by Section 4 of that article;

(2) a copy of any order revoking community supervision and imposing sentence pursuant to Article 42A.755, including:

(A) any amounts owed for restitution, fines, and court costs, completed on a standardized felony judgment form described by Section 4, Article 42.01; and

(B) a copy of the client supervision plan prepared for the defendant by the community supervision and corrections department supervising the defendant, if such a plan was prepared;

(3) a written report that states the nature and the seriousness of each offense and that states the citation to the provision or provisions of the Penal Code or other law under which the defendant was convicted;

(4) a copy of the victim impact statement, if one has been prepared in the case under Article 56.03;

(5) a statement as to whether there was a change in venue in the case and, if so, the names of the county prosecuting the offense and the county in which the case was tried;

(6) if requested, information regarding the criminal history of the defendant, including the defendant's state identification number if the number has been issued;

(7) a copy of the indictment or information for each offense;

(8) a checklist sent by the department to the county and completed by the county in a manner indicating that the documents required by this subsection and Subsection (c) accompany the defendant;

(9) if prepared, a copy of a presentence or postsentence report prepared under Subchapter F, Chapter 42A;

(10) a copy of any detainer, issued by an agency of the federal government, that is in the possession of the county and that has been placed on the defendant;

(11) if prepared, a copy of the defendant's Texas Uniform Health Status Update Form; [and]

(12) a written description of a hold or warrant, issued by any other jurisdiction, that the county is aware of and that has been placed on or issued for the defendant; and

(13) a copy of any mental health records, mental health screening reports, or similar information regarding the mental health of the defendant.

SECTION 2. Article 46B.001, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.001. DEFINITIONS. In this chapter:

(1) "Adaptive behavior" means the effectiveness with or degree to which a person meets the standards of personal independence and social responsibility expected of the person's age and cultural group.

(2) "Commission" means the Health and Human Services Commission.

(3) "Competency restoration" means the treatment or education process for restoring a person's ability to consult with the person's attorney with a reasonable degree of rational understanding, including a rational and factual understanding of the court proceedings and charges against the person.

(4) "Developmental period" means the period of a person's life from birth through 17 years of age.

(5) "Electronic broadcast system" means a two-way electronic communication of image and sound between the defendant and the court and includes secure Internet videoconferencing.

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

(7) "Inpatient mental health facility" has the meaning assigned by Section 571.003, Health and Safety Code.

(8) [(2)] "Intellectual disability" means significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period [has the meaning assigned by Section 591.003, Health and Safety Code].

(9) [(3)] "Local mental health authority" has the meaning assigned by Section 571.003, Health and Safety Code.

(10) [(4)] "Local intellectual and developmental disability authority" has the meaning assigned by Section 531.002, Health and Safety Code.

(11) [(5)] "Mental health facility" has the meaning assigned by Section 571.003, Health and Safety Code.

(12) [(6)] "Mental illness" means an illness, disease, or condition, other than epilepsy, dementia, substance abuse, or intellectual disability, that grossly impairs:

(A) a person's thought, perception of reality, emotional process, or judgment; or

(B) behavior as demonstrated by recent disturbed behavior [has the meaning assigned by Section 571.003, Health and Safety Code].

(13) [(7)] "Residential care facility" has the meaning assigned by Section 591.003, Health and Safety Code.

(14) "Subaverage general intellectual functioning" means a measured intelligence two or more standard deviations below the age-group mean, using a standardized psychometric instrument.

[(8) "Electronic broadcast system" means a two-way electronic communication of image and sound between the defendant and the court and includes secure Internet videoconferencing.

[(9) "Competency restoration" means the treatment or education process for restoring a person's ability to consult with the person's attorney with a reasonable degree of rational understanding, including a rational and factual understanding of the court proceedings and charges against the person.]

SECTION 3. Article 46B.073(c), Code of Criminal Procedure, is amended to read as follows:

(c) If the defendant is charged with an offense listed in Article 17.032(a)[, other than an offense under Section 22.01(a)(1), Penal Code,] or if the indictment alleges an affirmative finding under Article 42A.054(c) or (d), the court shall enter an order committing the defendant for competency restoration services to a [the maximum security unit of any] facility designated by the commission [Department of State Health Services, to an agency of the United States operating a mental hospital, or to a Department of Veterans Affairs hospital].

SECTION 4. Subchapter D, Chapter 46B, Code of Criminal Procedure, is amended by adding Article 46B.0831 to read as follows:

Art. 46B.0831. DETERMINATION WHETHER DEFENDANT IS MANIFESTLY DANGEROUS. A defendant committed to a maximum security unit by the commission may be assessed, at any time before the defendant is restored to competency, by the review board established under Section 46B.105 to determine whether the defendant is manifestly dangerous. If the review board determines the defendant is not manifestly dangerous, the commission shall transfer the defendant to a nonsecure facility designated by the commission.

SECTION 5. Article 46B.104, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.104. CIVIL COMMITMENT PLACEMENT: FINDING OF VIOLENCE. A defendant committed to a facility as a result of proceedings initiated under this chapter shall be committed to the [maximum security unit of any] facility designated by the commission [Department of State Health Services] if:

(1) 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

(2) the indictment charging the offense alleges an affirmative finding under Article 42A.054(c) or (d).

SECTION 6. Articles 46B.105(a), (b), and (e), Code of Criminal Procedure, are amended to read as follows:

(a) Unless a defendant committed to a maximum security unit by the commission is determined to be manifestly dangerous by a review board established under Subsection (b), not later than the 60th day after the date the defendant arrives at the maximum security unit, the defendant shall be transferred to:

(1) a unit of an inpatient mental health facility other than a maximum security unit;

(2) a residential care facility; or

(3) a program designated by a local mental health authority or a local intellectual and developmental disability authority.

(b) The executive commissioner [of state health services] 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 illness or an intellectual disability, to determine whether the defendant is manifestly dangerous and, as a result of the danger the defendant presents, requires continued placement in a maximum security unit.

(e) If the superintendent of the facility at which the maximum security unit is located disagrees with the determination, the matter shall be referred to the executive commissioner [of state health services]. The executive commissioner shall decide whether the defendant is manifestly dangerous.

SECTION 7. Article 46B.106(a), Code of Criminal Procedure, is amended to read as follows:

(a) A defendant committed to a facility as a result of the proceedings initiated under this chapter, other than a defendant described by Article 46B.104, shall be committed to:

(1) a facility designated by the commission [Department of State Health Services or the Department of Aging and Disability Services, as appropriate]; or

(2) an outpatient treatment program.

SECTION 8. Articles 46B.107(a) and (d), Code of Criminal Procedure, are amended to read as follows:

(a) The release of a defendant committed under this chapter from the commission [Department of State Health Services, the Department of Aging and Disability Services], an outpatient treatment program, or another facility is subject to disapproval by the committing court if the court or the attorney representing the state has notified the head of the facility or outpatient treatment provider, as applicable, to which the defendant has been committed that a criminal charge remains pending against the defendant.

(d) The court shall, on receiving notice from the head of a facility or outpatient treatment provider of intent to release the defendant under Subsection (b) [may, on motion of the attorney representing the state or on its own motion], hold a hearing to determine whether release is appropriate under the applicable criteria in Subtitle C or D, Title 7, Health and Safety Code. The court may, on motion of the attorney representing the state or on its own motion, hold a hearing to determine whether release is appropriate under the applicable criteria in Subtitle C or D, Title 7, Health and Safety Code, regardless of whether the court receives notice that the head of a facility or outpatient treatment provider provides notice of intent to release the defendant under Subsection (b). The court may conduct the hearing:

(1) at the facility; or

(2) by means of an electronic broadcast system as provided by Article 46B.013.

SECTION 9. Article 46B.151(c), Code of Criminal Procedure, is amended to read as follows:

(c) Notwithstanding Subsection (b), a defendant placed in a facility of the commission [Department of State Health Services or the Department of Aging and Disability Services] pending civil hearing under this article may be detained in that facility only with the consent of the head of the facility and pursuant to an order of protective custody issued under Subtitle C, Title 7, Health and Safety Code.

SECTION 10. Articles 46C.001(1) and (2), Code of Criminal Procedure, are amended to read as follows:

(1) "Commission" means the Health and Human Services Commission ["Commissioner" means the commissioner of state health services].

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

SECTION 11. Article 46C.104, Code of Criminal Procedure, is amended to read as follows:

Art. 46C.104. ORDER COMPELLING DEFENDANT TO SUBMIT TO EXAMINATION. (a) For the purposes described by this chapter, the court may order any defendant to submit to examination, including a defendant who is free on bail. If the defendant fails or refuses to submit to examination, the court may order the defendant to custody for examination for a reasonable period not to exceed 21 days. Custody ordered by the court under this subsection may include custody at a facility operated by the commission [department].

(b) If a defendant who has been ordered to a facility operated by the commission [department] for examination remains in the facility for a period that exceeds 21 days, the head of that facility shall cause the defendant to be immediately transported to the committing court and placed in the custody of the sheriff of the county in which the committing court is located. That county shall reimburse the facility for the mileage and per diem expenses of the personnel required to transport the defendant, calculated in accordance with the state travel rules in effect at that time.

(c) The court may not order a defendant to a facility operated by the commission [department] for examination without the consent of the head of that facility.

SECTION 12. Article 46C.106(b), Code of Criminal Procedure, is amended to read as follows:

(b) The county in which the indictment was returned or information was filed shall reimburse a facility operated by the commission [department] that accepts a defendant for examination under this subchapter for expenses incurred that are determined by the commission [department] to be reasonably necessary and incidental to the proper examination of the defendant.

SECTION 13. Article 46C.160(b), Code of Criminal Procedure, is amended to read as follows:

(b) The court may order a defendant detained in a facility of the commission [department or a facility of the Department of Aging and Disability Services] under this article only with the consent of the head of the facility.

SECTION 14. Article 46C.202(a), Code of Criminal Procedure, is amended to read as follows:

(a) Notwithstanding Article 46C.201(b), a person placed in a commission [department] facility [or a facility of the Department of Aging and Disability Services] pending civil hearing as described by that subsection may be detained only with the consent of the head of the facility and under an Order of Protective Custody issued under Subtitle C or D, Title 7, Health and Safety Code.

SECTION 15. Articles 46C.251(a) and (b), Code of Criminal Procedure, are amended to read as follows:

(a) The court shall order the acquitted person to be committed for evaluation of the person's present mental condition and for treatment to the [maximum security unit of any] facility designated by the commission [department]. The period of commitment under this article may not exceed 30 days.

(b) The court shall order that:

(1) a transcript of all medical testimony received in the criminal proceeding be prepared as soon as possible by the court reporter and the transcript be forwarded to the facility to which the acquitted person is committed; and

(2) the following information be forwarded to the facility and[, as applicable,] to the commission [department or the Department of Aging and Disability Services]:

(A) the complete name, race, and gender of the person;

(B) any known identifying number of the person, including social security number, driver's license number, or state identification number;

(C) the person's date of birth; and

(D) the offense of which the person was found not guilty by reason of insanity and a statement of the facts and circumstances surrounding the alleged offense.

SECTION 16. Article 46C.260, Code of Criminal Procedure, is amended to read as follows:

Art. 46C.260. TRANSFER OF COMMITTED PERSON TO NON-MAXIMUM SECURITY [NONSECURE] FACILITY. (a) A person committed to a facility under this subchapter shall be committed to a [the maximum security unit of any] facility designated by the commission [department].

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

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

(d) The executive 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.

(e) If the head of the facility at which the maximum security unit is located disagrees with the determination, then the matter shall be referred to the executive commissioner. The executive commissioner shall decide whether the person is manifestly dangerous.

SECTION 17. Section 532.013(a), Health and Safety Code, is amended to read as follows:

(a) In this section:

(1) "Forensic patient" means a person with mental illness or a person with an intellectual disability who is:

(A) examined on the issue of competency to stand trial by an expert appointed under Subchapter B, Chapter 46B, Code of Criminal Procedure;

(B) found incompetent to stand trial under Subchapter C, Chapter 46B, Code of Criminal Procedure;

(C) committed to court-ordered mental health services under Subchapter E, Chapter 46B, Code of Criminal Procedure; [or]

(D) found not guilty by reason of insanity under Chapter 46C, Code of Criminal Procedure;

(E) examined on the issue of fitness to proceed with juvenile court proceedings by an expert appointed under Chapter 51, Family Code; or

(F) found unfit to proceed under Subchapter C, Chapter 55, Family Code.

(2) "Forensic services" means a competency examination, competency restoration services, or mental health or intellectual disability services provided to a current or former forensic patient in the community or at a department facility.

SECTION 18. This Act applies only to a proceeding under the Code of Criminal Procedure that begins on or after the effective date of this Act, regardless of when the defendant committed the underlying offense for which the defendant became subject to the proceeding. A proceeding that begins before the effective date of this Act is governed by the law in effect on the date the proceeding began, and the former law is continued in effect for that purpose.

SECTION 19. 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, 2019.