81R10735 KEL-F
By: Coleman, Farrar, Miklos, Moody H.B. No. 2973
Substitute the following for H.B. No. 2973:
By: Gallego C.S.H.B. No. 2973
A BILL TO BE ENTITLED
AN ACT
relating to the insanity defense in a criminal case.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 8.01(a), Penal Code, is amended to read
as follows:
(a) It is an affirmative defense to prosecution that, at the
time of the commission of the acts constituting the offense, the
defendant, as a result of a severe mental disease or defect, was
unable to appreciate the nature and quality or the wrongfulness of
his or her acts. [conduct charged, the actor, as a result of severe
mental disease or defect, did not know that his conduct was wrong.]
SECTION 2. Chapter 46C, Code of Criminal Procedure, is
amended by adding Subchapter G to read as follows:
SUBCHAPTER G. PROVISIONS APPLICABLE TO PERSONS ACQUITTED BY REASON
OF INSANITY UNDER THIS CHAPTER OR PRIOR LAW
Art. 46C.301. APPLICABILITY OF SUBCHAPTER. This subchapter
applies to a person acquitted by reason of insanity under this
chapter or under former Article 46.03, as that article existed
before September 1, 2005.
SECTION 3. Articles 46C.002, 46C.268, and 46C.269, Code of
Criminal Procedure, are transferred to Subchapter G, Chapter 46C,
Code of Criminal Procedure, as added by this Act, renumbered as
Articles 46C.302, 46C.303, and 46C.304, respectively, and amended
to read as follows:
Art. 46C.302 [46C.002]. MAXIMUM PERIOD OF COMMITMENT
DETERMINED BY MAXIMUM TERM FOR OFFENSE. (a) A person acquitted by
reason of insanity may not be committed to a mental hospital or
other inpatient or residential care facility or ordered to receive
outpatient or community-based treatment and supervision under
Subchapter F or under former Article 46.03, as applicable, for a
cumulative period that exceeds the maximum term provided by law for
the offense for which the acquitted person was tried.
(b) On expiration of that maximum term, the acquitted person
may be further confined in a mental hospital or other inpatient or
residential care facility or ordered to receive outpatient or
community-based treatment and supervision only under civil
commitment proceedings.
Art. 46C.303 [46C.268]. ADVANCE DISCHARGE OF ACQUITTED
PERSON AND TERMINATION OF JURISDICTION. (a) A [An acquitted]
person acquitted by reason of insanity, the head of the facility to
which the acquitted person is committed, the person responsible for
providing the outpatient or community-based treatment and
supervision, or the state may request that the court discharge an
acquitted person from inpatient commitment or outpatient or
community-based treatment and supervision.
(b) Not later than the 14th day after the date of the
request, the court shall hold a hearing on a request made by the
head of the facility to which the acquitted person is committed or
the person responsible for providing the outpatient or
community-based treatment and supervision.
(c) If a request is made by an acquitted person, the court
must act on the request not later than the 14th day after the date of
the request. A hearing under this subsection is at the discretion
of the court, except that the court shall hold a hearing if the
request and any accompanying material indicate that modification of
the order may be appropriate.
(d) If a request is made by an acquitted person not later
than the 90th day after the date of a hearing on a previous request,
the court is not required to act on the request except on the
expiration of the order or on the expiration of the 90-day period
following the date of the hearing on the previous request.
(e) The court shall rule on the request during or shortly
after any hearing that is held and in any case not later than the
14th day after the date of the request.
(f) The court shall discharge the acquitted person from all
court-ordered commitment and treatment and supervision and
terminate the court's jurisdiction over the person if the court
finds that the acquitted person has established by a preponderance
of the evidence that:
(1) the acquitted person does not have a severe mental
illness or mental retardation; or
(2) the acquitted person is not likely to cause
serious harm to another because of any severe mental illness or
mental retardation.
Art. 46C.304 [46C.269]. TERMINATION OF COURT'S
JURISDICTION. (a) The jurisdiction of the court over a person
acquitted by reason of insanity [covered by this subchapter]
automatically terminates on the date when the cumulative total
period of institutionalization and outpatient or community-based
treatment and supervision imposed under Subchapter F or under
former Article 46.03, as applicable, [this subchapter] equals the
maximum term of imprisonment provided by law for the offense of
which the person was acquitted [by reason of insanity].
(b) On the termination of the court's jurisdiction under
this article, the acquitted person must be discharged from any
inpatient treatment or residential care or outpatient or
community-based treatment and supervision ordered under Subchapter
F or under former Article 46.03, as applicable [this subchapter].
(c) The [An] inpatient or residential care facility to which
the acquitted [a] person has been committed [under this subchapter]
or the [a] person responsible for administering a regimen of
outpatient or community-based treatment and supervision [under
this subchapter] must notify the court not later than the 30th day
before the court's jurisdiction over the acquitted person ends
under this article.
(d) This article [subchapter] does not affect whether a
person may be ordered to receive care or treatment under Subtitle C
or D, Title 7, Health and Safety Code.
SECTION 4. Article 46C.154, Code of Criminal Procedure, is
amended to read as follows:
Art. 46C.154. INFORMING JURY REGARDING CONSEQUENCES OF
ACQUITTAL. The court[, the attorney representing the state, or the
attorney for the defendant may not inform a juror or a prospective
juror of] shall provide instruction to the jury in order to inform
the jury of the consequences to the defendant if a verdict of not
guilty by reason of insanity is returned[.], in substantially the
form as follows:
" Under the law applicable in this case, if you find the
defendant not guilty by reason of insanity, you will be discharged
and the court will determine the disposition of the defendant.
"If the court finds that the offense of which the defendant
was acquitted involved conduct that caused serious bodily injury to
another person, placed another person in imminent danger of serious
bodily injury, or consisted of a threat of serious bodily injury to
another person through the use of a deadly weapon, the court must
commit the defendant to a maximum-security inpatient facility for a
mental health evaluation for a period not to exceed 30 days. Based
upon that evaluation, the defendant may receive continuing mental
health supervision or treatment for a period not to exceed the
maximum term of confinement for the offense of which the person was
acquitted, to be reviewed at least annually by the court, or upon
request of the defendant, the state, the head of a facility to which
the defendant is committed, or the person responsible for providing
outpatient or community-based treatment and supervision. If the
defendant has not been discharged by the court from mental health
supervision or treatment before the expiration of that maximum
term, upon the expiration of that maximum term the defendant must be
discharged from the criminal jurisdiction of this court. The
defendant may be further confined or treated after that time only
under civil commitment proceedings outside the criminal
jurisdiction of this court.
"If the court finds that the offense of which the defendant
was acquitted did not involve the dangerous conduct specified
above, then the court must determine whether the defendant is a
person with mental illness or mental retardation. If the court
finds that the defendant is a person with mental illness or mental
retardation, then the court must transfer the defendant for civil
mental health commitment proceedings outside the criminal
jurisdiction of this court. If the court does not find the defendant
to be a person with mental illness or mental retardation, then the
defendant must be discharged.
"It cannot accurately be predicted how the criminal and civil
commitment laws might be applied if the defendant is found not
guilty by reason of insanity because the application of these laws
will depend upon decisions made by the courts and mental health
authorities regarding the defendant's mental health needs.
Therefore, you may consider the existence of the criminal and civil
commitment laws described herein, but you are not to consider the
extent to which those laws may be applied to this defendant in
reaching your verdict."
SECTION 5. Article 46C.158, Code of Criminal Procedure, is
amended to read as follows:
Art. 46C.158. CONTINUING JURISDICTION OF DANGEROUS
ACQUITTED PERSON. If the court finds that the offense of which the
person was acquitted involved conduct that caused serious bodily
injury to another person, placed another person in imminent danger
of serious bodily injury, or consisted of a threat of serious bodily
injury to another person through the use of a deadly weapon, the
court retains jurisdiction over the acquitted person until either:
(1) the court discharges the person and terminates its
jurisdiction under Article 46C.303 [46C.268]; or
(2) the cumulative total period of
institutionalization and outpatient or community-based treatment
and supervision under the court's jurisdiction equals the maximum
term provided by law for the offense of which the person was
acquitted by reason of insanity and the court's jurisdiction is
automatically terminated under Article 46C.304 [46C.269].
SECTION 6. Article 46C.255(a), Code of Criminal Procedure,
is amended to read as follows:
(a) The following proceedings under this chapter must be
before the court, and the underlying matter determined by the
court, unless the acquitted person or the state requests a jury
trial or the court on its own motion sets the matter for jury trial:
(1) a hearing under Article 46C.253;
(2) a proceeding for renewal of an order under Article
46C.261;
(3) a proceeding on a request for modification or
revocation of an order under Article 46C.266; and
(4) a proceeding seeking discharge of an acquitted
person under Article 46C.303 [46C.268].
SECTION 7. Article 46C.259, Code of Criminal Procedure, is
amended to read as follows:
Art. 46C.259. STATUS OF COMMITTED PERSON. If an acquitted
person is committed under this subchapter, the person's status as a
patient or resident is governed by Subtitle C or D, Title 7, Health
and Safety Code, except that:
(1) transfer to a nonsecure unit is governed by
Article 46C.260;
(2) modification of the order to direct outpatient or
community-based treatment and supervision is governed by Article
46C.262; and
(3) discharge is governed by Article 46C.303
[46C.268].
SECTION 8. Article 46C.270(b), Code of Criminal Procedure,
is amended to read as follows:
(b) Either the acquitted person or the state may appeal
from:
(1) an Order of Commitment to Inpatient Treatment or
Residential Care entered under Article 46C.256;
(2) an Order to Receive Outpatient or Community-Based
Treatment and Supervision entered under Article 46C.257 or 46C.262;
(3) an order renewing or refusing to renew an Order for
Inpatient Commitment or Outpatient or Community-Based Treatment
and Supervision entered under Article 46C.261;
(4) an order modifying or revoking an Order for
Outpatient or Community-Based Treatment and Supervision entered
under Article 46C.266 or refusing a request to modify or revoke that
order; or
(5) an order discharging an acquitted person under
Article 46C.303 [46C.268] or denying a request for discharge of an
acquitted person.
SECTION 9. (a) Except as provided by Subsection (b) of this
section, the change in law made by this Act applies to a defendant
acquitted of an offense committed before, on, or after the
effective date of this Act.
(b) The change in law made by this Act in amending Section
8.01(a), Penal Code, and Article 46C.154, Code of Criminal
Procedure, applies only to a defendant acquitted of an offense
committed on or after the effective date of this Act. A defendant
acquitted of an offense committed before the effective date of this
Act is covered by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose. For
purposes of this subsection, an offense was committed before the
effective date of this Act if any element of the offense was
committed before that date.
SECTION 10. This Act takes effect September 1, 2009.