By: Madden H.B. No. 3907
A BILL TO BE ENTITLED
AN ACT
relating to the court-ordered administration of psychoactive
medication to certain criminal defendants and to the release of
those defendants from certain facilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 16.22, Code of Criminal Procedure, is
amended by amending Subsection (d) and adding Subsection (e) to
read as follows:
(d) This article does not prevent [Nothing in this article
prevents] the court from, pending an evaluation of the defendant as
described by this article:
(1) subject to Subsection (e), releasing a mentally
ill or mentally retarded defendant from custody on personal or
surety bond; or
(2) ordering an examination regarding the defendant's
competency to stand trial.
(e) If a sheriff releases a defendant who is a person with
mental illness or mental retardation from custody, except on final
disposition of the criminal proceedings, the sheriff must, before
releasing the person:
(1) notify the local mental health or mental
retardation authority, as applicable, of the impending release; and
(2) if possible, arrange for the release of the person
during normal business hours.
SECTION 2. Article 46B.072(d), Code of Criminal Procedure,
is amended to read as follows:
(d) An order issued under this article may require the
defendant to participate in:
(1) as appropriate, an outpatient treatment program
administered by a community center or an outpatient treatment
program administered by any other entity that provides outpatient
competency restoration services; and
(2) an appropriate prescribed regimen of medical,
psychiatric, or psychological care or treatment, including:
(A) care or treatment involving the
administration of psychoactive medication, including those
required under Article 46B.086; and
(B) if applicable, care or treatment
administered in a correctional facility pending release to an
outpatient treatment program described by Subdivision (1).
SECTION 3. Article 46B.086, Code of Criminal Procedure, is
amended by amending Subsections (a), (b), and (c) and adding
Subsection (g) 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, or an outpatient treatment
program;
(B) is committed to an inpatient mental health
facility or a residential care facility for the purpose of
competency restoration;
(C) is confined in a correctional facility while
awaiting further criminal proceedings following competency
restoration treatment; or
(D) is subject to Article 46B.072, if the court
has made the determinations required by Subsection (a) 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, or an outpatient treatment
program provider has prepared a continuity of care plan that
requires the defendant to take psychoactive medications; and
(4) [(3)] who, after a hearing held under Section
574.106, Health and Safety Code, if applicable, has been found to
not [to] meet the criteria prescribed by Sections 574.106(a) and
(a-1), Health and Safety Code, for court-ordered administration of
psychoactive medications[; or
[(4) who is subject to Article 46B.072].
(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, Health and Safety Code, except
that, [. The motion to compel medication] 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 fifth day after the defendant is returned to the
committing court, may authorize the director of the [a]
correctional facility or the program provider, as applicable, to
have the medication administered to the defendant, by reasonable
force if necessary.
(g) For a defendant described by Subsection (a)(2)(A), an
order issued under this article:
(1) authorizes the initiation of any appropriate
mental health treatment for the defendant awaiting transfer; and
(2) does not constitute authorization to retain the
defendant in a correctional facility for competency restoration
treatment.
SECTION 4. Subchapter D, Chapter 46B, Code of Criminal
Procedure, is amended by adding Article 46B.087 to read as follows:
Art. 46B.087. ORDER OF RELEASE: CONTINUATION OF TREATMENT.
If a defendant is released under Article 46B.0095 or 46B.010, the
court ordering the defendant's release shall consider whether the
defendant could benefit from continued treatment. If the court
finds that the defendant could benefit from continued treatment,
the court shall include in the order of release a requirement that
the sheriff, before releasing the defendant:
(1) arrange for the release of the defendant during
normal business hours, if possible; and
(2) notify the local mental health or mental
retardation authority, as applicable, of the impending release.
SECTION 5. Section 574.104, Health and Safety Code, is
amended by adding Subsections (a-1) and (a-2) to read as follows:
(a-1) A physician who is treating a patient ordered to
receive inpatient mental health services after having been
determined to be incompetent to stand trial may:
(1) proceed under Subsection (a); or
(2) file, in the court in which the criminal matter is
pending, an application for an order to authorize the
administration of a psychoactive medication regardless of the
patient's refusal if:
(A) the physician believes that the patient lacks
the capacity to make a decision regarding the administration of the
psychoactive medication;
(B) the physician determines that the medication
is the proper course of treatment for the patient; and
(C) the patient, verbally or by other indication,
refuses to take the medication.
(a-2) An application filed as described by Subsection
(a-1)(2) is subject to the requirements and procedures provided by
Article 46B.086, Code of Criminal Procedure. Subsections (b)(3),
(c), (d), and (e) do not apply to the application.
SECTION 6. Section 574.106, Health and Safety Code, is
amended by amending Subsection (a-1) and adding Subsection (l) to
read as follows:
(a-1) The court may issue an order under this section only
if the court finds by clear and convincing evidence after the
hearing:
(1) that the patient lacks the capacity to make a
decision regarding the administration of the proposed medication
and treatment with the proposed medication is in the best interest
of the patient; or
(2) if the patient was ordered to receive inpatient
mental health services by a criminal court with jurisdiction over
the patient, that treatment with the proposed medication is in the
best interest of the patient and either:
(A) the patient presents a danger to the patient
or others in the inpatient mental health facility in which the
patient is being treated as a result of a mental disorder or mental
defect as determined under Section 574.1065; or
(B) the patient:
(i) has remained confined in a correctional
facility, as defined by Section 1.07, Penal Code, for a period
exceeding 72 hours while awaiting transfer for competency
restoration treatment; and
(ii) presents a danger to the patient or
others in the correctional facility as a result of a mental disorder
or mental defect as determined under Section 574.1065 [and
[(B) treatment with the proposed medication is in
the best interest of the patient].
(l) For a patient described by Subsection (a-1)(2)(B), an
order issued under this section:
(1) authorizes the initiation of any appropriate
mental health treatment for the patient awaiting transfer; and
(2) does not constitute authorization to retain the
patient in a correctional facility for competency restoration
treatment.
SECTION 7. Section 574.106(c), Health and Safety Code, is
amended to read as follows:
(c) Except as provided by Subsection (d), a [A] hearing
under this subchapter shall be conducted on the record by the
probate judge, a [or] judge with probate jurisdiction, or, if
applicable, the judge of a criminal court who ordered the patient to
receive inpatient mental health services in accordance with Chapter
46B, Code of Criminal Procedure [except as provided by Subsection
(d)].
SECTION 8. Section 574.1065, Health and Safety Code, is
amended to read as follows:
Sec. 574.1065. FINDING THAT PATIENT PRESENTS A DANGER. In
making a finding under Section 574.106(a-1)(2) that, as a result of
a mental disorder or mental defect, the patient presents a danger to
the patient or others in the inpatient mental health facility in
which the patient is being treated or in the correctional facility,
as applicable, [as a result of a mental disorder or mental defect]
the court shall consider:
(1) an assessment of the patient's present mental
condition;
(2) whether the patient has inflicted, attempted to
inflict, or made a serious threat of inflicting substantial
physical harm to the patient's self or to another while in the
facility; and
(3) whether the patient, in the six months preceding
the date the patient was placed in the facility, has inflicted,
attempted to inflict, or made a serious threat of inflicting
substantial physical harm to another that resulted in the patient
being placed in the facility.
SECTION 9. Section 574.107(b), Health and Safety Code, is
amended to read as follows:
(b) The county in which the applicable criminal charges are
pending or were adjudicated shall pay as provided by Subsection (a)
the costs of a hearing that is held under Section 574.106 to
evaluate the court-ordered administration of psychoactive
medication to:
(1) a patient ordered to receive [inpatient] mental
health services as described by Section 574.106(a)(1) after having
been determined to be incompetent to stand trial or having been
acquitted of an offense by reason of insanity; or
(2) a patient who:
(A) is awaiting trial after having been
determined to be competent to stand trial; and
(B) was ordered to receive [inpatient] mental
health services as described by Section 574.106(a)(2).
SECTION 10. 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, 2009.