82R9562 KEL-F
By: Huffman S.B. No. 1503
A BILL TO BE ENTITLED
AN ACT
relating to procedures regarding certain 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 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 Subchapter D or E
or any other provision of 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 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 under Subtitle C or D, Title 7,
Health and Safety Code.
(c) The cumulative period described by Subsection (a)
begins on the date that, following the entry of the initial order of
commitment or initial order for outpatient treatment program
participation, the defendant is:
(1) transferred to a mental hospital or other
inpatient or residential facility; or
(2) released on bail to participate in an outpatient
treatment program.
SECTION 2. The heading to Article 46B.013, Code of Criminal
Procedure, is amended to read as follows:
Art. 46B.013. USE OF TELEPHONIC CONFERENCING OR ELECTRONIC
BROADCAST SYSTEM IN CERTAIN PROCEEDINGS UNDER THIS CHAPTER.
SECTION 3. Articles 46B.013(a) and (b), Code of Criminal
Procedure, are amended to read as follows:
(a) A hearing may be conducted using telephonic
conferencing or an electronic broadcast system as permitted by this
chapter and in accordance with the other provisions of this code if:
(1) written consent to the use of telephonic
conferencing or an electronic broadcast system is filed with the
court by:
(A) the defendant or the attorney representing
the defendant; and
(B) the attorney representing the state;
(2) if applicable, the electronic broadcast system to
be used will provide [provides] for a simultaneous, compressed full
motion video, and interactive communication of image and sound
between the judge, the attorney representing the state, the
attorney representing the defendant, and the defendant;
(3) the communication to be made through telephonic
conferencing or the electronic broadcast system can be recorded in
full as required by Subsection (c); and
(4) [(3)] on request of the defendant or the attorney
representing the defendant, the defendant and the attorney
representing the defendant are able to communicate privately
without being recorded or heard by the judge or the attorney
representing the state.
(b) On the motion of the defendant, the attorney
representing the defendant, or the attorney representing the state
or on the court's own motion, the court shall [may] terminate an
appearance made through telephonic conferencing or an electronic
broadcast system at any time during the appearance and require an
appearance by the defendant in open court.
SECTION 4. Article 46B.022(a), Code of Criminal Procedure,
is amended to read as follows:
(a) To qualify for appointment under this subchapter as an
expert, a psychiatrist or psychologist must:
(1) as appropriate, be a physician licensed in this
state or be a psychologist licensed in this state who has a doctoral
degree in psychology; and
(2) have the following certification [or experience]
or training:
(A) as appropriate, certification by:
(i) the American Board of Psychiatry and
Neurology with added or special qualifications in forensic
psychiatry; or
(ii) the American Board of Professional
Psychology in forensic psychology; or
(B) [experience or] training consisting of[:
[(i)] at least 24 hours of specialized
forensic training relating to incompetency or insanity
evaluations[;
[(ii) for an appointment made before
January 1, 2005, at least five years of experience before January 1,
2004, in performing criminal forensic evaluations for courts; or
[(iii) for an appointment made on or after
January 1, 2005, at least five years of experience before January 1,
2004, in performing criminal forensic evaluations for courts and
eight or more hours of continuing education relating to forensic
evaluations, completed in the 12 months preceding the appointment
and documented with the court].
SECTION 5. Article 46B.025(c), Code of Criminal Procedure,
is amended to read as follows:
(c) An expert's report may not state the expert's opinion on
the defendant's competency or incompetency based only on a refusal
by the defendant to communicate information in good faith. The
report may not state the expert's opinion on the defendant's sanity
at the time of the alleged offense, if in the opinion of the expert
the defendant is incompetent to proceed.
SECTION 6. Article 46B.051, Code of Criminal Procedure, is
amended by adding Subsection (d) to read as follows:
(d) The trial must be conducted not later than the 15th day
after the date that the last report of an expert, from among all of
the experts involved in examining the defendant, is submitted to
the court.
SECTION 7. Article 46B.079(a), Code of Criminal Procedure,
is amended to read as follows:
(a) The head of the facility or the provider of the
outpatient treatment program, as appropriate, not later than the
15th day before the date on which the initial [a] restoration period
is to expire, shall notify the applicable court that the
[restoration] period is about to expire.
SECTION 8. Article 46B.080(b), Code of Criminal Procedure,
is amended to read as follows:
(b) The court may enter an order under Subsection (a) only
if the court determines that, on the basis of information provided
by the head of the facility or the treatment program provider:
(1) the defendant has not attained competency; and
(2) an extension of the initial restoration period may
[will likely] enable the facility or program to restore the
defendant to competency within the period of the extension.
SECTION 9. Article 46B.080(c), Code of Criminal Procedure,
is redesignated as Article 46B.0805, Code of Criminal Procedure,
and amended to read as follows:
Art. 46B.0805. SECOND EXTENSION PERMITTED IN CERTAIN
CIRCUMSTANCES. [(c)] The court may grant a second [only one]
extension with respect to [under this article for] a period of
restoration ordered under this subchapter only if the court
determines that:
(1) the defendant has not attained competency; and
(2) a second extension may enable the facility or
program to restore the defendant to competency within the period of
the extension.
SECTION 10. Article 46B.083, Code of Criminal Procedure, is
amended by adding Subsection (c) to read as follows:
(c) For each extension period ordered under this
subchapter, the court may request the submission of an additional
certificate or affidavit by the head of the facility or outpatient
treatment program provider, as applicable.
SECTION 11. Article 46B.084(b-1), Code of Criminal
Procedure, is amended to read as follows:
(b-1) If the hearing is before the court, the hearing may be
conducted by means of telephonic conferencing or an electronic
broadcast system as provided by Article 46B.013. Notwithstanding
any other provision of this chapter, the defendant is not required
to be returned to the court with respect to any hearing that is
conducted under this article in the manner described by this
subsection.
SECTION 12. Article 46B.085, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.085. SUBSEQUENT RESTORATION PERIODS AND
EXTENSIONS OF THOSE PERIODS PROHIBITED. (a) The court may order
only one initial period of restoration and two extensions [one
extension] under this subchapter in connection with the same
offense.
(b) After an initial restoration period and one or two
extensions [an extension] are ordered as described by Subsection
(a), any subsequent court orders for treatment must be issued under
Subchapter E or F.
SECTION 13. Article 46B.107(d), Code of Criminal Procedure,
is amended to read as follows:
(d) The court may, on motion of the attorney representing
the state or on its own motion, hold a hearing to determine whether
release is appropriate under the applicable criteria in Subtitle C
or D, Title 7, Health and Safety Code. The court may conduct the
hearing:
(1) at the facility; or
(2) by means of telephonic conferencing or an
electronic broadcast system as provided by Article 46B.013.
SECTION 14. Article 46B.113(c), Code of Criminal Procedure,
is amended to read as follows:
(c) If a court holds a hearing under this article, on the
request of the counsel for either party or the motion of the court,
a jury shall make the competency determination. If the competency
determination will be made by the court rather than a jury, the
court may conduct the hearing:
(1) at the facility; or
(2) by means of telephonic conferencing or an
electronic broadcast system as provided by Article 46B.013.
SECTION 15. Article 46B.114, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.114. TRANSPORTATION OF DEFENDANT TO COURT. If the
hearing is not conducted at the facility to which the defendant has
been committed under this chapter or conducted by means of
telephonic conferencing or an electronic broadcast system as
described by Article 46B.013 [this subchapter], an order setting a
hearing to determine whether the defendant has been restored to
competency shall direct that, as soon as practicable but not
earlier than 72 hours before the date the hearing is scheduled, the
defendant be placed in the custody of the sheriff of the county in
which the committing court is located or the sheriff's designee for
transportation to the court. The sheriff or the sheriff's designee
may not take custody of the defendant under this article until 72
hours before the date the hearing is scheduled.
SECTION 16. Article 46B.115(c), Code of Criminal Procedure,
is amended to read as follows:
(c) If the competency determination will be made by the
court, the court may conduct the hearing at the facility to which
the defendant has been committed under this chapter or may conduct
the hearing by means of telephonic conferencing or an electronic
broadcast system as provided by Article 46B.013.
SECTION 17. Article 46C.102(a), Code of Criminal Procedure,
is amended to read as follows:
(a) The court may appoint qualified psychiatrists or
psychologists as experts under this chapter. To qualify for
appointment under this subchapter as an expert, a psychiatrist or
psychologist must:
(1) as appropriate, be a physician licensed in this
state or be a psychologist licensed in this state who has a doctoral
degree in psychology; and
(2) have the following certification [or experience]
or training:
(A) as appropriate, certification by:
(i) the American Board of Psychiatry and
Neurology with added or special qualifications in forensic
psychiatry; or
(ii) the American Board of Professional
Psychology in forensic psychology; or
(B) [experience or] training consisting of[:
[(i)] at least 24 hours of specialized
forensic training relating to incompetency or insanity
evaluations[;
[(ii) at least five years of experience in
performing criminal forensic evaluations for courts; and
[(iii) eight or more hours of continuing
education relating to forensic evaluations, completed in the 12
months preceding the appointment and documented with the court].
SECTION 18. Article 46C.252(a), Code of Criminal Procedure,
is amended to read as follows:
(a) The report ordered under Article 46C.251 must be filed
with the court as soon as practicable before the hearing on
disposition but not later than the seventh [fourth] day before that
hearing.
SECTION 19. Article 46C.261(a), Code of Criminal Procedure,
is amended to read as follows:
(a) A criminal court that orders an acquitted person
committed to inpatient treatment or orders outpatient or
community-based treatment and supervision annually shall determine
whether to renew the order and has continuing jurisdiction over all
renewals for the purposes of this chapter.
SECTION 20. Section 551.042, Health and Safety Code, is
amended to read as follows:
Sec. 551.042. OUTPATIENT CLINICS AND TRANSITIONAL
FACILITIES. (a) If funds are available, the department may
establish in locations the department considers necessary
outpatient clinics and transitional facilities to treat persons
with mental illness.
(b) As necessary to establish and operate the clinics and
transitional facilities, the department may:
(1) acquire facilities;
(2) hire personnel;
(3) adopt rules; and
(4) contract with persons, corporations, and local,
state, and federal agencies.
SECTION 21. Sections 572.004(c) and (d), Health and Safety
Code, are amended to read as follows:
(c) The notified physician shall evaluate the patient to
determine whether there is reasonable cause to believe that the
patient might meet the criteria for court-ordered mental health
services or emergency detention. The notified physician shall
discharge the patient on completion of the evaluation [before the
end of the four-hour period] unless the physician finds [has]
reasonable cause to believe that the patient might meet the
criteria for court-ordered mental health services or emergency
detention.
(d) A physician who finds [has] reasonable cause to believe
that a patient might meet the criteria for court-ordered mental
health services or emergency detention shall examine the patient as
soon as possible within 24 hours after the time the request for
discharge is filed. The physician shall discharge the patient on
completion of the examination unless the physician determines that
the person meets the criteria for court-ordered mental health
services or emergency detention. If the physician makes a
determination that the patient meets the criteria for court-ordered
mental health services or emergency detention, the physician shall,
not later than 4 p.m. on the next succeeding business day after the
date on which the examination occurs, either discharge the patient
or file an application for court-ordered mental health services or
emergency detention and obtain a written order for further
detention. The physician shall notify the patient if the physician
intends to detain the patient under this subsection or intends to
file an application for court-ordered mental health services or
emergency detention. A decision to detain a patient under this
subsection and the reasons for the decision shall be made a part of
the patient's clinical record.
SECTION 22. Section 574.086, Health and Safety Code, is
amended by adding Subsections (d) and (e) to read as follows:
(d) Notwithstanding Subsection (a), a discharge under this
section is subject to judicial review and disapproval under Section
574.090 if:
(1) one of the criteria that formed the basis for the
decision to commit the patient was a finding that the patient was
likely to cause serious harm to others;
(2) regardless of the criteria that formed the basis
for the decision to commit, a treating physician now believes that
the patient poses a substantial risk of causing harm to others; or
(3) the patient has a violent criminal history.
(e) For purposes of this subsection, a patient has a violent
criminal history if the patient:
(1) has a prior conviction or has received community
supervision for an offense listed in Article 17.032(a), Code of
Criminal Procedure;
(2) is currently charged with an offense listed in
Article 17.032(a), Code of Criminal Procedure;
(3) has been charged with an offense listed in Article
17.032(a), Code of Criminal Procedure, in the five years preceding
the date of the patient's current commitment; or
(4) has ever been found not guilty by reason of
insanity of an offense listed in Article 17.032(a), Code of
Criminal Procedure.
SECTION 23. Subchapter F, Chapter 574, Health and Safety
Code, is amended by adding Section 574.090 to read as follows:
Sec. 574.090. JUDICIAL REVIEW OF DISCHARGE. (a) A facility
administrator who determines that a patient described by Section
574.086(d) does not meet the criteria for court-ordered inpatient
mental health services shall prepare a discharge certificate as
required by Section 574.087 and file it with the court that entered
the order committing the patient to court-ordered inpatient mental
health services.
(b) On the filing of a discharge certificate under
Subsection (a), the court shall notify the attorney representing
the state and the patient's last attorney of record and provide each
attorney a copy of the discharge certificate.
(c) On the request of the attorney representing the state,
the court must conduct a hearing to determine whether the patient no
longer meets the criteria for court-ordered inpatient mental health
services and should be discharged. The court may hold the hearing
on its own motion.
(d) The court may order further psychiatric or
psychological testing the court considers necessary for
determining whether the patient no longer meets the criteria for
court-ordered inpatient mental health services and should be
discharged.
(e) At the hearing conducted under this section, the court
shall determine whether the person meets any criteria for
court-ordered inpatient mental health services listed in Section
574.035(a). If the court finds by clear and convincing evidence
that the patient meets one of the criteria for court-ordered
inpatient mental health services, the court shall disapprove the
patient's release and enter a new order committing the patient for
court-ordered extended inpatient mental health services. If the
court does not find by clear and convincing evidence that the
patient meets one of the criteria for court-ordered inpatient
mental health services, the court shall approve the patient's
discharge.
SECTION 24. The changes in law made by this Act in amending
Chapters 46B and 46C, Code of Criminal Procedure, apply only to a
defendant with respect to whom any proceeding under Chapter 46B or
46C, Code of Criminal Procedure, is conducted on or after the
effective date of this Act.
SECTION 25. This Act takes effect September 1, 2011.