By: Duncan S.B. No. 1557
(In the Senate - Filed March 9, 2009; March 17, 2009, read
first time and referred to Committee on Criminal Justice;
April 8, 2009, reported favorably by the following vote: Yeas 6,
Nays 0; April 8, 2009, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the early identification of criminal defendants who are
or may be persons with mental illness or mental retardation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 16.22, Code of Criminal Procedure, is
amended to read as follows:
Art. 16.22. EARLY IDENTIFICATION [EXAMINATION AND
TRANSFER] OF DEFENDANT SUSPECTED OF HAVING MENTAL ILLNESS OR MENTAL
RETARDATION. (a)(1) Not later than 72 hours after receiving
credible information [evidence or a statement] that may establish
reasonable cause to believe that a defendant committed to the
sheriff's custody has a mental illness or is a person with mental
retardation, including observation of the defendant's behavior
immediately before, during, and after the defendant's arrest and
the results of any previous assessment of the defendant, the
sheriff shall provide written or electronic notice of the
information to the [notify a] magistrate [of that fact]. [A
defendant's behavior or the result of a prior evaluation indicating
a need for referral for further mental health or mental retardation
assessment must be considered in determining whether reasonable
cause exists to believe the defendant has a mental illness or is a
person with mental retardation.] On a determination that there is
reasonable cause to believe that the defendant has a mental illness
or is a person with mental retardation, the magistrate, except as
provided by Subdivision (2), shall order [an examination of the
defendant by] the local mental health or mental retardation
authority or another qualified mental health or mental retardation
expert to:
(A) collect information regarding [determine]
whether the defendant has a mental illness as defined by Section
571.003, Health and Safety Code, or is a person with mental
retardation as defined by Section 591.003, Health and Safety Code,
including information obtained from any previous assessment of the
defendant; and
(B) provide to the magistrate a written
assessment of the information collected under Paragraph (A).
(2) The magistrate is not required to order the
collection of information under [an examination described by]
Subdivision (1) if the defendant in the year preceding the
defendant's applicable date of arrest has been [evaluated and]
determined to have a mental illness or to be a person with mental
retardation by the local mental health or mental retardation
authority or another mental health or mental retardation expert
described by Subdivision (1). A court that elects to use the
results of that previous determination [evaluation] may proceed
under Subsection (c).
(3) If the defendant fails or refuses to submit to the
collection of information regarding the defendant as [an
examination] required under Subdivision (1), the magistrate may
order the defendant to submit to an examination in a mental health
facility determined to be appropriate by the local mental health or
mental retardation authority for a reasonable period not to exceed
21 days. The magistrate may order a defendant to a facility
operated by the Department of State Health Services or the
Department of Aging and Disability Services for examination only on
request of the local mental health or mental retardation authority
and with the consent of the head of the facility. If a defendant
who has been ordered to a facility operated by the Department of
State Health Services or the Department of Aging and Disability
Services for examination remains in the facility for a period
exceeding 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 regulations in effect at the time.
(b) A written assessment of the information collected under
Subsection (a)(1)(A) [report of the examination] shall be provided
[submitted] to the magistrate not later than the 30th day after the
date of any order [of examination] issued under Subsection (a) in a
felony case and not later than the 10th day after the date of any
order [of examination] issued under that subsection in a
misdemeanor case, and the magistrate shall provide copies of the
written assessment [report] to the defense counsel, [and] the
prosecuting attorney, and the trial court. The written assessment
[report] must include a description of the procedures used in the
collection of information under Subsection (a)(1)(A) [examination]
and the applicable expert's [examiner's] observations and findings
pertaining to:
(1) whether the defendant is a person who has a mental
illness or is a person with mental retardation;
(2) whether there is clinical evidence to support a
belief that the defendant may be incompetent to stand trial and
should undergo a complete competency examination under Subchapter
B, Chapter 46B; and
(3) recommended treatment.
(c) After the trial court receives the applicable
[examining] expert's written assessment [report] relating to the
defendant under Subsection (b) or elects to use the results of a
previous determination as [an evaluation] described by Subsection
(a)(2), the trial court may, as applicable:
(1) resume criminal proceedings against the
defendant, including any appropriate proceedings related to the
defendant's release on personal bond under Article 17.032; [or]
(2) resume or initiate competency proceedings, if
required, as provided by Chapter 46B or other proceedings affecting
the defendant's receipt of appropriate court-ordered mental health
or mental retardation services, including proceedings related to
the defendant's receipt of outpatient mental health services under
Section 574.034, Health and Safety Code; or
(3) consider the written assessment during the
punishment phase after a conviction of the offense for which the
defendant was arrested, as part of a presentence investigation
report, or in connection with the impositions of conditions
following placement on community supervision, including deferred
adjudication community supervision.
(d) This article does not prevent [Nothing in this article
prevents] the applicable court from, before, during, or after the
collection of information regarding the defendant [pending an
evaluation of the defendant] as described by this article:
(1) 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.
SECTION 2. Subsection (b), Article 17.032, Code of Criminal
Procedure, is amended to read as follows:
(b) A magistrate shall release a defendant on personal bond
unless good cause is shown otherwise if the:
(1) defendant is not charged with and has not been
previously convicted of a violent offense;
(2) defendant is examined by the local mental health
or mental retardation authority or another mental health expert
under Article 16.22 of this code;
(3) applicable [examining] expert, in a written
assessment [report] submitted to the magistrate under Article
16.22:
(A) concludes that the defendant has a mental
illness or is a person with mental retardation and is nonetheless
competent to stand trial; and
(B) recommends mental health treatment for the
defendant; and
(4) magistrate determines, in consultation with the
local mental health or mental retardation authority, that
appropriate community-based mental health or mental retardation
services for the defendant are available through the Texas
Department of Mental Health and Mental Retardation under Section
534.053, Health and Safety Code, or through another mental health
or mental retardation services provider.
SECTION 3. Subsection (d), Section 11, Article 42.12, Code
of Criminal Procedure, is amended to read as follows:
(d) If the judge places a defendant on community supervision
and the defendant is determined to have a mental illness or be a
person with mental retardation as provided by [an examining expert
under] Article 16.22 or Chapter 46B or in a psychological
evaluation conducted under Section 9(i) of this article, the judge
may require the defendant as a condition of community supervision
to submit to outpatient or inpatient mental health or mental
retardation treatment if the:
(1) defendant's:
(A) mental impairment is chronic in nature; or
(B) ability to function independently will
continue to deteriorate if the defendant does not receive mental
health or mental retardation services; and
(2) judge determines, in consultation with a local
mental health or mental retardation services provider, that
appropriate mental health or mental retardation services for the
defendant are available through the Texas Department of Mental
Health and Mental Retardation under Section 534.053, Health and
Safety Code, or through another mental health or mental retardation
services provider.
SECTION 4. The change in law made by this Act applies only
to a defendant charged with an offense committed on or after the
effective date of this Act. A defendant charged with 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 section,
an offense was committed before the effective date of this Act if
any element of the offense occurred before that date.
SECTION 5. This Act takes effect September 1, 2009.
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