Oklahoma 2024 Regular Session

Oklahoma Senate Bill SB771 Compare Versions

Version 1 (Old)

Version 2 (New)

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4		-	An Act
5		-	ENROLLED SENATE
	29	+	HOUSE OF REPRESENTATIVES - FLOOR VERSION
	30	+
	31	+	STATE OF OKLAHOMA
	32	+
	33	+	2nd Session of the 59th Legislature (2024)
	34	+
	35	+	ENGROSSED SENATE
6	36		BILL NO. 771 By: Gollihare of the Senate
7	37
8	38		and
9	39
10	40		Lawson of the House
11	41
12	42
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15	45		An Act relating to determination of competence;
16	46		amending 22 O.S. 2021, Sections 1175.1, 1175.3,
17	47		1175.4, and 1175.6b, which relate to definitions and
18	48		procedures for determining competency; modifying
19	49		definitions; providing for standing for Office of
20	50		Public Guardian to participate in certain
21	51		proceedings; requiring court to consider certain
22	52		recommendations; updating statutory reference; and
23	53		providing an effective date .
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29		-	SUBJECT: Determination of competence
30		-
31	59		BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
32		-
33	60		SECTION 1. AMENDATORY 22 O.S. 2021, Section 1175.1, is
34	61		amended to read as follows:
35		-
36	62		Section 1175.1. As used in Sections 1175.1 through 1176 of this
37	63		title:
38		-
39	64		1. “Competent” or “competency” means the present ability of a
40	65		person arrested for or charged with a crime to understand the nature
41	66		of the charges and proceedings brou ght against him or her and to
42	67		effectively and rationally assist in his or her defense;
43	68
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44	95		2. “Criminal proceeding” means every stage of a criminal
45	96		prosecution after arrest and before judgment, including, but not
46		-
47		-	ENR. S. B. NO. 771 Page 2
48	97		limited to, interrogation, lineup, preliminary hearing, motion
49	98		dockets, discovery, pretrial hearings and trial;
50		-
51	99		3. “Dangerous” means a person who is a person requiring
52	100		treatment as defined in Section 1 -103 of Title 43A of the Oklahoma
53	101		Statutes;
54		-
55	102		4. “Incompetent” or “incompetency” means the present in ability
56	103		of a person arrested for or charged with a crime to understand the
57	104		nature of the charges and pro ceedings brought against him or her and
58	105		to effectively and rationally assist in his or her defense;
59		-
60	106		3. “Dangerous” means a person who is a person requi ring
61	107		treatment as defined in Section 1 -103 of Title 43A of the Oklahoma
62	108		Statutes;
63		-
64	109		4. “Criminal proceeding” means every stage of a criminal
65	110		prosecution after arrest and before judgment, including, but not
66	111		limited to, interrogation, lineup, preliminary hear ing, motion
67	112		dockets, discovery, pretrial hearings and trial;
68		-
69	113		5. “Public guardian” means the Office of P ublic Guardian as
70	114		established under the Oklahoma Public Guardianship Act in Section 6 -
71	115		101 et seq. of Title 30 of the Oklahoma Statutes;
	116	+	6. “Qualified forensic examiner” means any:
	117	+	a. psychiatrist with forensic training and experience,
	118	+	b. psychologist with forensic training and experience, or
72	119
73		-	6. “Qualified forensic examiner ” means any:
74		-
75		-	a. psychiatrist with forens ic training and experience,
76		-
77		-	b. psychologist with forensic training and experience, or
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79	146		c. a licensed mental health professional whose forensic
80	147		training and experience enable him or her to form
81	148		expert opinions regarding mental illness, competency
82	149		and dangerousness and who has been approved to render
83	150		such opinions by the court; provided, however, a
84	151		licensed mental health professional shall not be
85	152		qualified to issue expert opinions as to competency or
86	153		dangerousness in cases in which a person is alleged to
87	154		be incompetent due to intellectual disability; and
88		-
89		-
90		-	ENR. S. B. NO. 771 Page 3
91	155		6. 7. “Reasonable period of time ” means a period not to exceed
92	156		the lesser of:
93		-
94	157		a. the maximum sentence specified for the most serious
95	158		offense with which t he defendant is charged, or
96		-
97	159		b. a maximum period of two (2) years ; and
98		-
99	160		7. “Public guardian” means the Office of Public Guardian as
100	161		established under the Oklahoma Public Guardianship Act in Section 6 -
101	162		101 et seq. of Title 30 of the Oklahoma Statutes .
102		-
103	163		SECTION 2. AMENDATORY 22 O.S. 2021, Section 1175.3, is
104	164		amended to read as follows:
105		-
106	165		Section 1175.3. A. Upon filing of an application for
107	166		determination of competency, the court shall set a hearing date,
108	167		which shall be as soon as practica ble, but at least one (1) day
109	168		after service of notice as provided by Section 1175.2 of this title.
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111	196		B. The court shall hold a hearing on the date provided. At the
112	197		hearing, the court shall examine the application for determination
113	198		of competency to determin e if it alleges facts sufficient to raise a
114	199		doubt as to the competency of the person. Any additional evi dence
115	200		tending to create a doubt as to the competency of the person may be
116	201		presented at this hearing.
117		-
118	202		C. If the court finds there is no doubt as to the competency of
119	203		the person, it shall order the criminal proceedings to resume.
120		-
121	204		D. 1. a. If the court finds there is a doubt as to the
122	205		competency of the person, it shall order the person to
123	206		be examined by the Department of Mental Health and
124	207		Substance Abuse Services or by a qualified forensic
125	208		examiner designated by the Department to perform
126	209		competency examinatio ns.
127		-
128	210		b. In addition, the Developmental Disabilities Services
129	211		Division and the Office of Public Guardian of the
130	212		Department of Human Services shall receiv e written
131	213		notice from the district attorney who filed the
132	214		criminal petition, and be authorized by order of the
133		-
134		-	ENR. S. B. NO. 771 Page 4
135	215		court to have a psychologist or other appropriate
136	216		clinician participate with professionals assigned by
137	217		any other public or private agency in any competency
138	218		evaluation wherein where developmental or intellectual
139	219		disability may be involved. The psycho logist or
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140	247		clinician employed, by contract or otherwise, by the
141	248		Department of Human Services may issue a separate
142	249		opinion and recommendation to the cour t. In such
143	250		cases where intellectual disability may be involved,
144	251		the Office of Public Guardian shall hav e standing to
145	252		participate in any stage of the proceedings as deemed
146	253		necessary by the Office.
147		-
148	254		2. The person shall be examined by a qualified forensic
149	255		examiner on an outpatient basis prior to referral for any necessary
150	256		inpatient evaluation, as ordered by the court. The outpatient
151	257		examination may be conducted in the community, the jail or detention
152	258		facility where the person is held.
153		-
154	259		3. If the court determ ines that the person whose competency is
155	260		in question may be dangerous as defined in Section 1175.1 of th is
156	261		title, it shall order the person retained in a secure facility until
157	262		the completion of the competency hearing provided in Section 1175.4
158	263		of this title. If the court determines the person may be dangerous
159	264		as defined in Section 1175.1 of this title becaus e the individual is
160	265		a person requiring treatment as defined in Section 1 -103 of Title
161	266		43A of the Oklahoma Statutes, it may commit the person to the
162	267		custody of the Department of Mental Health and Substance Abuse
163	268		Services or any other state agency or privat e facility for the
164	269		examination required by this subsection. The person shall be
165	270		required to undergo examination for a period of time sufficient for
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166	298		the qualified forensic examiner(s) examiner or examiners to reach a
167	299		conclusion as to competency, and the cou rt shall impose a reasonable
168	300		time limitation for such period of examination.
169		-
170	301		E. The qualified forensic examiner(s) examiner or examiners
171	302		shall receive instructions that they shall examine the patient to
172	303		determine:
173		-
174	304		1. If the person is able to appreciate the nature of the
175	305		charges made against such person;
176		-
177		-
178		-	ENR. S. B. NO. 771 Page 5
179	306		2. If the person is able to consult with the lawyer and
180	307		rationally assist in the preparation of the defense of such person;
181		-
182	308		3. If the person is unable to appreciate the nature of the
183	309		charges or to consul t and rationally assist in the preparation of
184	310		the defense, whether the person can attain competency within a
185	311		reasonable period of time as defined in Se ction 1175.1 of this title
186	312		if provided with a course of treatment, therapy or training;
187		-
188	313		4. If the person is a person requiring treatment as defined by
189	314		Section 1-103 of Title 43A of the Oklahoma Statutes;
190		-
191	315		5. If the person is incompetent because the person is
192	316		intellectually disabled as defined in Section 1408 of Title 10 of
193	317		the Oklahoma Statutes;
194		-
195	318		6. If the answers to questions requirements of paragraphs 4 and
196	319		5 of this subsection are no not established, why the reasoning for
197	320		which the defendant is otherwise incompetent; and
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199	348		7. If the person were released, whether such person would
200	349		presently be dangerous as defined in Section 1175.1 of this title.
201		-
202	350		F. Upon completion of the competency evaluation, the Department
203	351		of Mental Health and Substance Abuse Services or qualified forensic
204	352		examiner designated by the Department to perform competency
205	353		examinations shall noti fy the court of its findings. If the person
206	354		is in the custody of the Department of Mental Health and Substance
207	355		Abuse Services, the person shall be ret urned to the court in the
208	356		customary manner within five (5) business days. If the person is
209	357		not returned within that time, the county in which the proceedings
210	358		are to be held shall pay the costs of maintaining the person at the
211	359		institution or facility for t he period of time the person remains at
212	360		the institution or facility in excess of the five -day period.
213		-
214	361		SECTION 3. AMENDATORY 22 O.S. 2021, Section 1175.4, is
215	362		amended to read as follows:
216		-
217	363		Section 1175.4. A. A hearing to determine t he competency of
218	364		the person whose competency is in question shall be held within
219	365		thirty (30) days after the qualified forensic examiner(s) examiner
220	366		or examiners have made the determination required in Section 1175.3
221		-
222		-	ENR. S. B. NO. 771 Page 6
223	367		of this title. In such cases where inte llectual disability may be
224	368		involved, the Office of Public Guardian shall have standing to
225	369		participate in any stage of the proceedings as deemed necessary by
226	370		the Office.
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228	398		B. The court, at the hearing, shall determine by a
229	399		preponderance of the evidence if th e person is incompetent. Such
230	400		determination shall include consideration of all reports prepared by
231	401		the qualified forensic examiner(s) examiner or examiners ; provided,
232	402		however, in any case where intellectual disability may be involved,
233	403		the recommendations of examiners set forth in subparagraph b of
234	404		paragraph 1 of subsection D of Section 1175.3 of this title shall be
235	405		considered by the court . The person shall be presumed to be
236	406		competent for the purposes of the allocation of the burden of proof
237	407		and burden of going forward with the evidence. If the court deems
238	408		it necessary, or if the person alleged to be a pers on requiring
239	409		treatment, or any relative, friend, or any person with whom he may
240	410		reside, or at whose house the person may be, shall so demand, the
241	411		court shall schedule the hearing on the application as a jury trial
242	412		to be held within seventy -two (72) hours of the request, excluding
243	413		weekends and legal holidays, or within as much additional time as is
244	414		requested by the attorney of the person whose competency i s in
245	415		question, upon good cause shown. The jury shall be composed of six
246	416		(6) persons having the qualific ations required of jurors in courts
247	417		of record, summoned to determine the questions of the person ’s
248	418		competency and need for treatment. Whenever a jury i s required, the
249	419		court shall proceed to the selection of such jury in the manner as
250	420		provided by law and su ch jury shall determine the questions of the
251	421		competency and need for treatment of the person whose competency is
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252	449		in question. The jurors shall receive fees for attendance and
253	450		mileage as are allowed by law.
254		-
255	451		C. The person whose competency is in question s hall have the
256	452		right to be present at the hearing on the petition unless it is made
257	453		to appear to the court that the presence of the person makes it
258	454		impossible to conduct the hearing in a reasonable manner. The court
259	455		may not decide in advance of the hearing, solely on the basis of the
260	456		certificate of the examining doctor or doctors, that the person
261	457		whose competency is in question should not be allowed to ap pear. It
262	458		shall be made to appear to the court based on clear and convincing
263	459		evidence that alternatives to exclusion were attempted before the
264		-
265		-	ENR. S. B. NO. 771 Page 7
266	460		court renders the person ’s removal for that purpose or the person ’s
267	461		appearance at such hearing improper and unsaf e.
268		-
269	462		D. All witnesses shall be subject to cross -examination in the
270	463		same manner as is provided by law. If so stipulated by counsel for
271	464		a person whose competency is in question, the district attorney and
272	465		the court, testimony may be given by telephone or othe r electronic
273	466		transmitting device approved by the court. No statement, admission
274	467		or confession made by t he person whose competency is in question
275	468		obtained during the examination for competency may be used for any
276	469		purpose except for proceedings under this act Section 1175.1 et seq.
277	470		of this title. No such statement, admission or confession may be
278	471		used against such person in any criminal action whether pending at
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279	499		the time the hearing is held or filed against such person at any
280	500		later time, directly, indirectly or in any manner or form.
281		-
282	501		E. If the question of competency is submitted to a jury, the
283	502		court shall instruct the jury as to the law regarding competency,
284	503		and the findings they are to make. If the trial of the question is
285	504		to the court, the court shall mak e the required findings.
286		-
287	505		SECTION 4. AMENDATORY 22 O.S. 2021, Section 1175.6b, i s
288	506		amended to read as follows:
289		-
290	507		Section 1175.6b. A. If the person is found to be incompetent
291	508		primarily because the person is intellectually disabled as defined
292	509		in Section 1408 of Title 10 of the Oklahoma Statutes , and is also
293	510		found by the court to be dang erous as defined by Section 1175.1 of
294	511		this title, the court shall suspend the criminal proceedings , and
295	512		shall place the person into the custody of the O ffice of Public
296	513		Guardian. The Office of Public Guardian shall act with all powers
297	514		set forth in the Oklah oma Public Guardianship Act, and:
298		-
299	515		1. The Office of Public Guardian shall place any person placed
300	516		in its custody under this title in a facility or resi dential
301	517		setting, private or public, willing to accept the individual and
302	518		that has a level of supervision and security that is appropriate to
303	519		the needs of the person;
304		-
305	520		2. Such placements shall be within the sole discretion of the
306	521		Office of Public Guardian;
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309		-	ENR. S. B. NO. 771 Page 8
310	549		3. All such placements made by the Office of Public Guardian
311	550		shall be made within six (6) months of the date of the order
312	551		awarding custody to the Office of Public Guardian;
313		-
314	552		4. The Office of Public Guardian shall report to the court at
315	553		least every six (6) months as to the status of the person including,
316	554		but not limited to, the type of placement, services pr ovided, level
317	555		of supervision, the medical and psychological health of the person,
318	556		whether the person would be dangerous if conditionally released into
319	557		a nonsecure environment, the assistance and services that would be
320	558		required for such conditional release a nd whether the person has
321	559		achieved competency;
322		-
323	560		5. If the person is determined by the Office of Public Guardian
324	561		to have regained competency or that con ditional release to a private
325	562		guardian or other caretaker is appropriate, a hearing shall be
326	563		scheduled within twenty (20) days. If found competent by the court
327	564		or a jury after such rehearing, criminal proceedings shall be
328	565		resumed. If the court finds cond itional release to be appropriate,
329	566		the court shall make an appropriate order for conditional release;
330	567		and
331		-
332	568		6. The provisions of subsections C, H and I of Section 6 -101 of
333	569		Title 30 of the Oklahoma Statutes shall not apply to custody orders
334	570		arising under this title.
335		-
336	571		B. If the person is found to be incompetent for reasons other
337	572		than the person is a person requ iring treatment as defined by
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338	600		Section 1-103 of Title 43A of the Oklahoma Statutes and is found to
339	601		be not dangerous as defined by Section 1175.1 of this title, the
340	602		court shall suspend the criminal proceedings and either refer the
341	603		person to the Department of Human Services for consideration of
342	604		voluntary assistance or conditionally release the person as set
343	605		forth in this section.
344		-
345	606		1. For any person recommend ed for conditional release, a
346	607		written plan for services shall be prepared by the Department of
347	608		Human Services and filed with the court. In its order of
348	609		conditional release, the court shall specify the conditions of
349	610		release and shall direct the appropriate agencies or persons to
350	611		submit annual reports regarding the person ’s compliance with the
351	612		conditions of release and progress:
352		-
353		-	ENR. S. B. NO. 771 Page 9
354		-
355	613		a. to be eligible for conditional release, the person
356	614		shall agree, in writing, that during the period the
357	615		person is granted conditi onal release and is subject
358	616		to the provisions thereof, there shall be free
359	617		transmission of all pertinent information, including
360	618		clinical information regarding the person, among the
361	619		person’s treatment providers, the appropriate district
362	620		attorneys, law enfor cement and court personnel. To
363	621		effect this agreement, the person shall execute any
364	622		releases required by law to allow for the
365	623		dissemination of this information,
366	624
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367	651		b. the court’s order placing the person on conditional
368	652		release shall include notice that the pe rson’s
369	653		conditional release may be revoked upon good cause,
370		-
371	654		c. the district attorney, as well as any agen cy or
372	655		individual involved in providing services with regard
373	656		to the person’s conditional release, may prepare and
374	657		file an affidavit under oath if the dis trict attorney,
375	658		agency, or individual believes that the person has
376	659		failed to comply with the conditions o f release. The
377	660		court shall then conduct a hearing to determine if the
378	661		person has violated the conditions of release. Notice
379	662		of the hearing shall be i ssued, at least twenty -four
380	663		(24) hours before the hearing, to the Department of
381	664		Human Services, the pers on, trial counsel for the
382	665		person, and the client advocate general of the
383	666		Department of Human Services. After reviewing the
384	667		evidence concerning any alle ged violation of the
385	668		conditions of the release, the person ’s progress,
386	669		treatment alternatives, and the ne ed for public
387	670		safety, the court may order no change to the
388	671		conditions for the person ’s release or modify the
389	672		conditions of release, and
390	673
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391	700		d. the person placed on conditional release shall remain
392	701		in a conditional release status until the reviewing
393	702		court issues a full release from all conditions.
394		-
395		-
396		-	ENR. S. B. NO. 771 Page 10
397	703		2. If the person is determined by the Department of Human
398	704		Services to have regained competency, a hearing shall be scheduled
399	705		within twenty (20) days:
400		-
401	706		a. if found competent by the court or a jury after such
402	707		rehearing, criminal proceedings shall be resumed,
403		-
404	708		b. if the person is found to continue to be incompetent,
405	709		the person shall be returned to either conditional
406	710		release or referred to the Department of Human
407	711		Services for consideration of voluntary assistance.
408		-
409	712		C. The Office of Public Guardian shall have standing to
410	713		participate in any proceeding held pursuant to this section as
411	714		deemed necessary by the Office.
412		-
413	715		SECTION 5. This act shall become effective November 1, 2024.
414	716
415		-
416		-	ENR. S. B. NO. 771 Page 11
417		-	Passed the Senate the 5th day of March, 2024.
418		-
419		-
420		-
421		-	Presiding Officer of the Senate
422		-
423		-
424		-	Passed the House of Representatives the 16th day of April, 2024.
425		-
426		-
427		-
428		-	Presiding Officer of the House
429		-	of Representatives
430		-
431		-	OFFICE OF THE GOVERNOR
432		-	Received by the Office of the Governor this _______ _____________
433		-	day of _________________ __, 20_______, at _______ o'clock _______ M.
434		-	By: _________________________________
435		-	Approved by the Governor of the State of Oklahom a this _________
436		-	day of _________________ __, 20_______, at _______ o'clock _______ M.
437		-
438		-	_________________________________
439		-	Governor of the State of Oklahoma
440		-
441		-
442		-	OFFICE OF THE SECRETARY OF STATE
443		-	Received by the Office of the Secretary of State this _______ ___
444		-	day of _________________ _, 20 _______, at _______ o'clock _______ M.
445		-	By: _________________________________
	717	+	COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY - CIVIL, dated
	718	+	04/04/2024 - DO PASS.