By: Menendez, Hartnett H.B. No. 748
(Senate Sponsor - Van de Putte)
(In the Senate - Received from the House May 13, 2011;
May 13, 2011, read first time and referred to Committee on Criminal
Justice; May 21, 2011, reported favorably by the following vote:
Yeas 6, Nays 0; May 21, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to a criminal defendant's incompetency to stand trial, to
certain related time credits, and to the maximum period allowed for
restoration of the defendant to competency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2(a), Article 42.03, Code of Criminal
Procedure, is amended to read as follows:
(a) In all criminal cases the judge of the court in which the
defendant is convicted shall give the defendant credit on the
defendant's sentence for the time that the defendant has spent:
(1) in jail for the case, including confinement served
as described by Article 46B.009 and excluding [other than]
confinement served as a condition of community supervision, from
the time of his arrest and confinement until his sentence by the
trial court; [or]
(2) in a substance abuse treatment facility operated
by the Texas Department of Criminal Justice under Section 493.009,
Government Code, or another court-ordered residential program or
facility as a condition of deferred adjudication community
supervision granted in the case if the defendant successfully
completes the treatment program at that facility; or
(3) confined in a mental health facility or
residential care facility as described by Article 46B.009.
SECTION 2. Article 46B.009, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.009. TIME CREDITS. 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
time] the person may be [is] confined in a mental health facility,
residential care facility, or jail:
(1) any period of confinement that occurs pending a
determination [trial] 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.
SECTION 3. Article 46B.0095, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.0095. MAXIMUM PERIOD OF [FACILITY] COMMITMENT OR
OUTPATIENT TREATMENT PROGRAM PARTICIPATION DETERMINED BY MAXIMUM
TERM FOR OFFENSE. (a) A defendant may not, under this chapter, be
committed to a mental hospital or other inpatient or residential
facility, ordered to participate in an outpatient treatment
program, or subjected to both inpatient and outpatient treatment
for a cumulative period that exceeds the maximum term provided by
law for the offense for which the defendant was to be tried, except
that if the defendant is charged with a misdemeanor and has been
ordered only to participate in an outpatient treatment program
under Subchapter D or E, the maximum period of restoration is two
years [beginning on the date of the initial order for outpatient
treatment program participation was entered].
(b) On expiration of the maximum restoration period under
Subsection (a), the mental hospital or other inpatient or
residential facility or outpatient treatment program provider
identified in the most recent order of commitment or order of
outpatient treatment program participation under this chapter
shall assess the defendant to determine if civil proceedings under
Subtitle C or D, Title 7, Health and Safety Code, are appropriate.
The [the] defendant may be confined for an additional period in a
mental hospital or other inpatient or residential facility or
ordered to participate for an additional period in an outpatient
treatment program, as appropriate, only pursuant to civil
commitment proceedings.
(c) The cumulative period described by Subsection (a):
(1) begins on the date the initial order of commitment
or initial order for outpatient treatment program participation is
entered under this chapter; and
(2) includes any time that, following the entry of an
order described by Subdivision (1), the defendant is confined in a
correctional facility, as defined by Section 1.07, Penal Code,
while awaiting:
(A) transfer to a mental hospital or other
inpatient or residential facility;
(B) release on bail to participate in an
outpatient treatment program; or
(C) a criminal trial following any temporary
restoration of the defendant's competency to stand trial.
(d) The court may credit to the cumulative period described
by Subsection (a):
(1) any time that a defendant, following arrest for
the offense for which the defendant was to be tried, is confined in
a correctional facility, as defined by Section 1.07, Penal Code,
before the initial order of commitment or initial order for
outpatient treatment program participation is entered under this
chapter; and
(2) any good conduct time the defendant has been
granted under Article 42.032 in relation to the defendant's
confinement as described by Subdivision (1).
SECTION 4. Article 46B.010, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.010. MANDATORY DISMISSAL OF MISDEMEANOR CHARGES.
If a court orders that a defendant charged with a misdemeanor
punishable by confinement be committed to a mental hospital or
other inpatient or residential facility, participate in an
outpatient treatment program, or be subjected to both inpatient and
outpatient treatment, [the commitment of or participation in an
outpatient treatment program by a defendant who is charged with a
misdemeanor punishable by confinement] and the defendant is not
tried before the [date of] expiration of the maximum period of
restoration [under this chapter as] described by Article 46B.0095:
(1) on the motion of the attorney representing the
state, the court shall dismiss the charge; or
(2) on the motion of the attorney representing the
defendant, the court shall:
(A) set the matter to be heard not later than the
10th day after the date of filing of the motion; and
(B) dismiss the charge on a finding that the
defendant was not tried before the expiration of the maximum period
of restoration[, the court on the motion of the attorney
representing the state shall dismiss the charge].
SECTION 5. Section 574.110(b), Health and Safety Code, is
amended to read as follows:
(b) An order issued under Section 574.106 for a patient who
is returned to a correctional facility, as defined by Section 1.07,
Penal Code, to await [awaiting] trial in a criminal proceeding
continues to be in effect until the earlier of the following dates,
as applicable:
(1) the 180th day after the date the defendant was
returned to the correctional facility;
(2) [expires on] the date the defendant is acquitted,
is convicted, or enters a plea of guilty; or
(3) the date on which charges in the case are
dismissed. [An order continued under this subsection shall be
reviewed by the issuing court every six months.]
SECTION 6. (a) Except as provided by Subsection (b) of this
section, the change in law made by this Act applies only to a
defendant with respect to which any proceeding under Chapter 46B,
Code of Criminal Procedure, is conducted on or after the effective
date of this Act.
(b) The change in law made by this Act in amending Section
574.110(b), Health and Safety Code, applies only to an order issued
under Section 574.106 of that code on or after the effective date of
this Act.
SECTION 7. This Act takes effect September 1, 2011.
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