87R17682 LHC-D
 
  By: Moody H.B. No. 4212
 
  Substitute the following for H.B. No. 4212:
 
  By:  Murr C.S.H.B. No. 4212
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to procedures regarding defendants 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.  Article 16.22(a)(2), Code of Criminal Procedure,
  is amended to read as follows:
               (2)  The magistrate is not required to order the
  interview and collection of other information under Subdivision (1)
  if the defendant is no longer in custody or if the defendant in the
  year preceding the defendant's applicable date of arrest has been
  determined to have a mental illness or to be a person with an
  intellectual disability by the service provider that contracts with
  the jail to provide mental health or intellectual and developmental
  disability services, the local mental health authority, the local
  intellectual and developmental disability authority, or another
  mental health or intellectual and developmental disability expert
  described by Subdivision (1).  A court that elects to use the
  results of that previous determination may proceed under Subsection
  (c).
         SECTION 2.  Article 17.04, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 17.04.  REQUISITES OF A PERSONAL BOND. (a) A personal
  bond is sufficient if it includes the requisites of a bail bond as
  set out in Article 17.08, except that no sureties are required. In
  addition, a personal bond shall contain:
               (1)  the defendant's name, address, and place of
  employment;
               (2)  identification information, including the
  defendant's:
                     (A)  date and place of birth;
                     (B)  height, weight, and color of hair and eyes;
                     (C)  driver's license number and state of
  issuance, if any; and
                     (D)  nearest relative's name and address, if any;
  and
               (3)  except as provided by Subsection (b), the
  following oath sworn and signed by the defendant:
         "I swear that I will appear before (the court or magistrate)
  at (address, city, county) Texas, on the (date), at the hour of
  (time, a.m. or p.m.) or upon notice by the court, or pay to the court
  the principal sum of (amount) plus all necessary and reasonable
  expenses incurred in any arrest for failure to appear."
         (b)  A personal bond is not required to contain the oath
  described by Subsection (a)(3) if:
               (1)  the magistrate makes a determination under Article
  16.22 that the defendant has a mental illness or is a person with an
  intellectual disability, including by using the results of a
  previous determination under that article;
               (2)  the defendant is released on personal bond under
  Article 17.032; or
               (3)  the defendant is found incompetent to stand trial
  in accordance with Chapter 46B.
         SECTION 3.  Subchapter B, Chapter 45, Code of Criminal
  Procedure, is amended by adding Article 45.0214 to read as follows:
         Art. 45.0214.  DEFENDANT WITH MENTAL ILLNESS, INTELLECTUAL
  OR DEVELOPMENTAL DISABILITY, OR LACK OF CAPACITY. (a) In this
  article:
               (1)  "Caregiver" means a person, including a guardian,
  who is authorized by law, contract, or familial relationship to
  provide care to another person.
               (2)  "Defendant" includes a child as defined by Article
  45.058(h).
         (b)  On motion by the state, the defendant, or a person who
  stands in a parental relation to the defendant or who acts as the
  defendant's caregiver, or on the court's own motion, a justice or
  judge shall determine whether probable cause exists to believe that
  a defendant, including a defendant with a mental illness or an
  intellectual or developmental disability:
               (1)  lacks the capacity to understand the proceedings
  in criminal court or to assist in the defendant's own defense; or
               (2)  is unfit to proceed.
         (c)  If the court determines that probable cause exists for a
  finding under Subsection (a), after providing notice to the state,
  the court may dismiss the complaint.
         (d)  A dismissal of a complaint under Subsection (c) may be
  appealed as provided by Article 44.01.
         SECTION 4.  Subchapter B, Chapter 45, Code of Criminal
  Procedure, is amended by adding Article 45.0241 to read as follows:
         Art. 45.0241.  ACCEPTANCE OF PLEA OF GUILTY OR NOLO
  CONTENDERE. Notwithstanding any other law, a justice or judge may
  not accept a plea of guilty or plea of nolo contendere under Article
  45.022 or 45.023(a) unless it appears that the defendant is
  mentally competent and the plea is free and voluntary.
         SECTION 5.  Article 46B.009, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46B.009.  TIME CREDITS.  (a) A court sentencing a
  person convicted of a criminal offense shall credit to the term of
  the person's sentence each of the following periods for which the
  person may be confined in a mental health facility, residential
  care facility, or jail:
               (1)  any period of confinement that occurs pending a
  determination under Subchapter C as to the defendant's competency
  to stand trial; and
               (2)  any period of confinement that occurs between the
  date of any initial determination of the defendant's incompetency
  under that subchapter and the date the person is transported to jail
  following a final judicial determination that the person has been
  restored to competency.
         (b)  A court sentencing a person convicted of a criminal
  offense shall credit to the term of the person's sentence any period
  during which the person participated in an outpatient competency
  restoration program.
         SECTION 6.  Subchapter D, Chapter 46B, Code of Criminal
  Procedure, is amended by adding Article 46B.0735 to read as
  follows:
         Art. 46B.0735.  DATE COMPETENCY RESTORATION PERIOD BEGINS.
  The initial restoration period for a defendant under Article
  46B.0711, 46B.072, or 46B.073 begins on the later of:
               (1)  the date the defendant is:
                     (A)  ordered to participate in an outpatient
  competency restoration program; or
                     (B)  committed to a mental health facility,
  residential care facility, or jail-based competency restoration
  program; or
               (2)  the date competency restoration services actually
  begin. 
         SECTION 7.  Article 46B.080, Code of Criminal Procedure, is
  amended by adding Subsection (d) to read as follows:
         (d)  An extension under this article begins on the later of: 
               (1)  the date the court enters the order under
  Subsection (a); or
               (2)  the date competency restoration services actually
  begin pursuant to the order entered under Subsection (a).
         SECTION 8.  Article 46B.090, Code of Criminal Procedure, is
  amended by amending Subsections (a-1), (b), (c), (f), (g), (i),
  (j), (k), (l), (m), and (n) and adding Subsections (f-1), (l-1),
  (l-2), and (o) to read as follows:
         (a-1)  If the legislature appropriates to the commission
  [department] the funding necessary for the commission [department]
  to operate a jail-based restoration of competency pilot program as
  described by this article, the commission [department] shall
  develop and implement the pilot program in one or two counties in
  this state that choose to participate in the pilot program.  In
  developing the pilot program, the commission [department] shall
  coordinate and allow for input from each participating county.
         (b)  The commission [department] shall contract with a
  provider of jail-based competency restoration services to provide
  services under the pilot program if the commission [department]
  develops a pilot program under this article.
         (c)  The executive [Not later than November 1, 2013, the]
  commissioner [of the department] shall adopt rules as necessary to
  implement the pilot program. [In adopting rules under this article,
  the commissioner shall specify the types of information the
  department must collect during the operation of the pilot program
  for use in evaluating 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 department that]:
               (1)  be [the provider:
                     [(A)  has previously provided jail-based
  competency restoration services for one or more years; or
                     [(B)  is] a local mental health authority or local
  behavioral health authority that is in good standing with the
  commission, which may include an authority that is in good standing
  with the commission and subcontracts with a provider of jail-based
  competency restoration services [that has previously provided
  competency restoration services]; and
               (2)  contract with a county or counties to develop and
  implement a jail-based competency restoration program.
         (f-1)  The [the] provider's jail-based competency
  restoration program must:
               (1)  through the use of a multidisciplinary treatment
  team, provide jail-based competency restoration services that are:
                     (A)  [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
                     (B) [(ii)]  similar to other [the clinical
  treatment provided as part of a] competency restoration programs
  [program at an inpatient mental health facility];
               (2)  employ [(B) employs] or contract [contracts] for
  the services of at least one psychiatrist;
               (3)  provide jail-based competency restoration
  services through licensed or qualified mental health
  professionals;
               (4)  provide [and (C) provides] weekly competency
  restoration [treatment] hours commensurate to the [treatment]
  hours provided as part of other [a] competency restoration programs
  [program at an inpatient mental health facility];
               (5)  operate in the jail in a designated space that is
  separate from the space used for the general population of the jail;
               (6)  ensure coordination of general health care;
               (7)  provide mental health treatment and substance use
  disorder treatment to defendants, as necessary, for competency
  restoration; and
               (8)  supply clinically appropriate psychoactive
  medications for purposes of administering court-ordered medication
  to defendants as applicable and in accordance with Article 46B.086
  of this code or 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 the
  designated provider to collect and submit to the commission
  [department] the information specified by rules adopted under
  Subsection (c).
         (i)  A [The] psychiatrist or psychologist for the provider
  who has the qualifications described by Article 46B.022 shall
  evaluate the defendant's competency and report to the court as
  required by Article 46B.079 [conduct at least two full psychiatric
  evaluations of the defendant during the period the defendant
  receives competency restoration services in the jail.  The
  psychiatrist 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 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 the
  jail-based restoration of competency pilot program 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 the
  jail-based restoration of competency pilot program 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 the pilot
  program has not been restored to competency by the end of the 60th
  day after the date the defendant began to receive services in the
  pilot program, the jail-based competency restoration program shall
  continue to provide competency restoration services to the
  defendant for the period authorized by this subchapter, including
  any extension ordered under Article 46B.080, unless the jail-based
  competency restoration program is notified that space at a facility
  or outpatient competency restoration program appropriate for the
  defendant is available and, as applicable:
               (1)  for a defendant charged with a felony, not less
  than 45 days are remaining in the initial restoration period; or
               (2)  for a defendant charged with a felony or a
  misdemeanor, an extension has been ordered under Article 46B.080
  and not less than 45 days are remaining under the extension order.
         (l-1)  After receipt of a notice under Subsection (l), [:
               [(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 the transfer of] the defendant shall be transferred
  without unnecessary delay to the appropriate mental health
  facility, [or] residential care facility, or outpatient competency
  restoration program [as provided by Article 46B.073(d)] for the
  remainder of the period permitted by this subchapter, including any
  extension that may be ordered under Article 46B.080 if an extension
  has not previously been ordered under that article. If the
  defendant is not transferred, and if the psychiatrist or
  psychologist for the provider determines that the defendant has not
  been restored to competency by the end of the period authorized by
  this subchapter, the defendant shall be returned to the court for
  further proceedings. For a defendant charged with a misdemeanor,
  the court may:
               (1)  [under the extension;
               [(B)]  proceed under Subchapter E or F;
               (2) [(C)]  release the defendant on bail as permitted
  under Chapter 17; or
               (3) [(D)]  dismiss the charges in accordance with
  Article 46B.010.
         (l-2)  The court retains authority to order the transfer of a
  defendant who is subject to an order for jail-based competency
  restoration services to an outpatient competency restoration
  program if:
               (1)  the court determines that the defendant 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
               (2)  the other requirements of this subchapter relating
  to an order for outpatient competency restoration services are met.
         (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 the pilot program in the same manner as
  those provisions apply to any other defendant who is subject to
  proceedings under this chapter.
         (n)  If the commission [department] develops and implements
  a jail-based restoration of competency pilot program under this
  article, not later than December 1, 2021 [2018], the executive
  commissioner [of the department] shall submit a report concerning
  the pilot program to the presiding officers of the standing
  committees of the senate and house of representatives having
  primary jurisdiction over health and human services issues and over
  criminal justice issues.  The report must include the information
  collected by the commission [department] during the pilot program
  and the executive commissioner's evaluation of the outcome of the
  program as of the date the report is submitted.
         (o)  This article expires September 1, 2022. After the
  expiration of this article, a pilot program established under this
  article may continue to operate subject to the requirements of
  Article 46B.091.
         SECTION 9.  Article 46B.091, Code of Criminal Procedure, is
  amended by amending Subsections (g) and (j) and adding Subsections
  (j-1) and (m) to read as follows:
         (g)  A psychiatrist or psychologist for the provider who has
  the qualifications described by Article 46B.022 shall evaluate the
  defendant's competency and report to the court as required by
  Article 46B.079 [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 is committed to the
  program.  The psychiatrist or psychologist shall submit to the
  court a report concerning each evaluation required under this
  subsection].
         (j)  If the psychiatrist or psychologist for the provider
  determines that a defendant committed to a 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 receive services
  in the program, the jail-based competency restoration program shall
  continue to provide competency restoration services to the
  defendant for the period authorized by this subchapter, including
  any extension ordered under Article 46B.080, unless the jail-based
  competency restoration program is notified that space at a facility
  or outpatient competency restoration program appropriate for the
  defendant is available and, as applicable:
               (1)  for a defendant charged with a felony, not less
  than 45 days are remaining in the initial restoration period; or
               (2)  for a defendant charged with a felony or a
  misdemeanor, an extension has been ordered under Article 46B.080
  and not less than 45 days are remaining under the extension order.
         (j-1)  After receipt of a notice under Subsection (j), [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 Articles 46B.073(e) and (f), the
  transfer of] the defendant shall be transferred without unnecessary
  delay to the appropriate mental health facility, [or] residential
  care facility, or outpatient competency restoration program [as
  provided by Article 46B.073(d)] for the remainder of the period
  permitted by this subchapter, including any extension that may be
  ordered under Article 46B.080 if an extension has not previously
  been ordered under that article. If the defendant is not
  transferred, and if the psychiatrist or psychologist for the
  provider determines that the defendant has not been restored to
  competency by the end of the period authorized by this subchapter,
  the defendant shall be returned to the court for further
  proceedings. For a defendant charged with a misdemeanor, the court
  may: [under the extension;]
               (1) [(B)]  proceed under Subchapter E or F;
               (2) [(C)]  release the defendant on bail as permitted
  under Chapter 17; or
               (3) [(D)]  dismiss the charges in accordance with
  Article 46B.010.
         (m)  The court retains authority to order the transfer of a
  defendant who is subject to an order for jail-based competency
  restoration services to an outpatient competency restoration
  program if:
               (1)  the court determines that the defendant 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
               (2)  the other requirements of this subchapter relating
  to an order for outpatient competency restoration services are met.
         SECTION 10.  Subchapter E, Chapter 46B, Code of Criminal
  Procedure, is amended by adding Article 46B.1055 to read as
  follows:
         Art. 46B.1055.  MODIFICATION OF ORDER FOLLOWING INPATIENT
  CIVIL COMMITMENT PLACEMENT. (a) This article applies to a
  defendant who has been transferred under Article 46B.105 from a
  maximum security unit to any facility other than a maximum security
  unit.
         (b)  The defendant, the head of the facility to which the
  defendant is committed, or the attorney representing the state may
  request that the court modify an order for inpatient treatment or
  residential care to order the defendant to participate in an
  outpatient treatment program.
         (c)  If the head of the facility to which the defendant is
  committed makes a request under Subsection (b), not later than the
  14th day after the date of the request the court shall hold a
  hearing to determine whether the court should modify the order for
  inpatient treatment or residential care in accordance with Subtitle
  C, Title 7, Health and Safety Code.
         (d)  If the defendant or the attorney representing the state
  makes a request under Subsection (b), not later than the 14th day
  after the date of the request the court shall grant the request,
  deny the request, or hold a hearing on the request to determine
  whether the court should modify the order for inpatient treatment
  or residential care. A court is not required to hold a hearing under
  this subsection unless the request and any supporting materials
  provided to the court provide a basis for believing modification of
  the order may be appropriate.
         (e)  On receipt of a request to modify an order under
  Subsection (b), the court shall require the local mental health
  authority or local behavioral health authority to submit to the
  court, before any hearing is held under this article, a statement
  regarding whether treatment and supervision for the defendant can
  be safely and effectively provided on an outpatient basis and
  whether appropriate outpatient mental health services are
  available to the defendant.
         (f)  If the head of the facility to which the defendant is
  committed believes that the defendant is a person with mental
  illness who meets the criteria for court-ordered outpatient mental
  health services under Subtitle C, Title 7, Health and Safety Code,
  the head of the facility shall submit to the court before the
  hearing a certificate of medical examination for mental illness
  stating that the defendant meets the criteria for court-ordered
  outpatient mental health services.
         (g)  If a request under Subsection (b) is made by a defendant
  before the 91st day after the date the court makes a determination
  on a previous request under that subsection, the court is not
  required to act on the request until the earlier of:
               (1)  the expiration of the current order for inpatient
  treatment or residential care; or
               (2)  the 91st day after the date of the court's previous
  determination.
         (h)  Proceedings for commitment of the defendant to a
  court-ordered outpatient treatment program are governed by
  Subtitle C, Title 7, Health and Safety Code, to the extent that
  Subtitle C applies and does not conflict with this chapter, except
  that the criminal court shall conduct the proceedings regardless of
  whether the criminal court is also the county court.
         (i)  The court shall rule on a request made under Subsection
  (b) as soon as practicable after a hearing on the request, but not
  later than the 14th day after the date of the request.
         (j)  An outpatient treatment program may not refuse to accept
  a placement ordered under this article on the grounds that criminal
  charges against the defendant are pending.
         SECTION 11.  Article 46C.102(a), Code of Criminal Procedure,
  is 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].
         SECTION 12.  Section 511.009(d), Government Code, is amended
  to read as follows:
         (d)  The commission shall adopt reasonable rules and
  procedures establishing minimum standards regarding the continuity
  of prescription medications for the care and treatment of
  prisoners. The rules and procedures shall require that:
               (1)  a qualified medical professional shall review as
  soon as possible any prescription medication a prisoner is taking
  when the prisoner is taken into custody; and
               (2)  a prisoner with a mental illness be provided with
  each prescription medication that a qualified medical professional
  or mental health professional determines is necessary for the care,
  treatment, or stabilization of the prisoner.
         SECTION 13.  The following provisions of the Code of
  Criminal Procedure are repealed:
               (1)  Articles 46B.090(a) and (h); and
               (2)  Article 46B.091(a).
         SECTION 14.  The change in law made by this Act to Article
  17.04, Code of Criminal Procedure, applies only to a personal bond
  that is executed on or after the effective date of this Act. A
  personal bond executed before the effective date of this Act is
  governed by the law in effect on the date the personal bond was
  executed, and the former law is continued in effect for that
  purpose.
         SECTION 15.  The change in law made by this Act to Article
  46C.102(a), Code of Criminal Procedure, applies to a defendant
  against whom proceedings are initiated under Chapter 46C, Code of
  Criminal Procedure, before, on, or after the effective date of this
  Act.
         SECTION 16.  Not later than December 1, 2021, the Commission
  on Jail Standards shall adopt the rules and procedures required by
  Section 511.009(d), Government Code, as amended by this Act.
         SECTION 17.  This Act takes effect September 1, 2021.