82R4044 KEL-F
By: Williams S.B. No. 931
A BILL TO BE ENTITLED
AN ACT
relating to the determination of incompetency in criminal cases.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 46B.001, Code of Criminal Procedure, is
amended by adding Subdivision (1-a) to read as follows:
(1-a) "Developmental disability" has the meaning
assigned by Section 112.001, Human Resources Code.
SECTION 2. 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):
(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.
SECTION 3. 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 4. Article 46B.024, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.024. FACTORS CONSIDERED IN EXAMINATION. During an
examination under this subchapter and in any report based on that
examination, an expert shall consider, in addition to other issues
determined relevant by the expert, the following:
(1) the capacity of the defendant during criminal
proceedings to:
(A) rationally understand the charges against
the defendant and the potential consequences of the pending
criminal proceedings;
(B) disclose to counsel pertinent facts, events,
and states of mind;
(C) engage in a reasoned choice of legal
strategies and options;
(D) understand the adversarial nature of
criminal proceedings;
(E) exhibit appropriate courtroom behavior; and
(F) testify;
(2) as supported by current indications or the
defendant's personal history, whether the defendant:
(A) has a [diagnosable] mental illness;
(B) [or] is a person with mental retardation or
other developmental disability; or
(C) has any other medical condition that
significantly limits the defendant's cognitive functioning;
(3) whether the identified condition has lasted or is
expected to last continuously for at least one year;
(4) the degree of impairment resulting from [impact
of] the mental illness, [or] mental retardation or other
developmental disability, or other cognitive impairment, if
existent, and the specific impact on the defendant's capacity to
engage with counsel in a reasonable and rational manner; and
(5) [(4)] if the defendant is taking psychoactive or
other medication:
(A) whether the medication is necessary to
maintain the defendant's competency; and
(B) the effect, if any, of the medication on the
defendant's appearance, demeanor, or ability to participate in the
proceedings.
SECTION 5. Articles 46B.025(a) and (b), Code of Criminal
Procedure, are amended to read as follows:
(a) An expert's report to the court must state an opinion on
a defendant's competency or incompetency to stand trial or explain
why the expert is unable to state such an opinion and must also:
(1) identify and address specific issues referred to
the expert for evaluation;
(2) document that the expert explained to the
defendant the purpose of the evaluation, the persons to whom a
report on the evaluation is provided, and the limits on rules of
confidentiality applying to the relationship between the expert and
the defendant;
(3) in specific [general] terms, describe procedures,
techniques, and tests used in the examination, [and] the purpose of
each procedure, technique, or test, and the conclusions reached;
and
(4) state the expert's clinical observations,
findings, and opinions on each specific issue referred to the
expert by the court, state the specific criteria supporting the
expert's diagnosis, and state specifically any issues on which the
expert could not provide an opinion.
(b) If in the opinion of an expert appointed under Article
46B.021 the defendant is incompetent to proceed, the expert shall
state in the report:
(1) the symptoms, exact nature, severity, and expected
duration of the deficits resulting from the defendant's mental
illness, [or] mental retardation or other developmental
disability, or other cognitive impairment, if any, and the [that]
impact of the identified condition on the factors listed in Article
46B.024[, contributing to the defendant's incompetency]; [and]
(2) an estimate of the period needed to restore the
defendant's competency, including whether the defendant is likely
to be restored to competency in the foreseeable future; and
(3) prospective treatment options and the least
restrictive setting in which treatment may be delivered, as [, if
any,] appropriate for the defendant.
SECTION 6. Article 46B.071, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.071. OPTIONS ON DETERMINATION OF INCOMPETENCY.
(a) Except as provided by Subsection (b), on [On] a determination
that a defendant is incompetent to stand trial, the court shall:
(1) commit the defendant to a facility under Article
46B.073; or
(2) release the defendant on bail under Article
46B.072.
(b) On a determination that a defendant is incompetent to
stand trial and is unlikely to be restored to competency in the
foreseeable future, the court shall:
(1) proceed under Subchapter E or F; or
(2) take other action authorized by law.
SECTION 7. Article 46B.072, Code of Criminal Procedure, is
amended by amending Subsections (a), (b), and (c) and adding
Subsection (a-1) to read as follows:
(a) This article applies only to a defendant who is subject
to an initial restoration period based on Article 46B.071.
(a-1) Subject to conditions reasonably related to assuring
public safety and the effectiveness of the defendant's treatment,
if the court determines that a defendant found incompetent to stand
trial is not a danger to others and may be safely treated on an
outpatient basis with the specific objective of attaining
competency to stand trial and if an appropriate outpatient
treatment program is available for the defendant, the court:
(1) may release on bail a defendant found incompetent
to stand trial with respect to a felony or may continue the
defendant's release on bail; and
(2) shall release on bail a defendant found
incompetent to stand trial with respect to a misdemeanor or shall
continue the defendant's release on bail.
(b) The court shall order a defendant released on bail under
Subsection (a-1) [(a)] to participate in an outpatient treatment
program for a period not to exceed 60 [120] days.
(c) Notwithstanding Subsection (a-1) [(a)], the court may
order a defendant to participate in an outpatient treatment program
under this article only if:
(1) the court receives and approves a comprehensive
plan that:
(A) provides for the treatment of the defendant
for purposes of competency restoration; and
(B) identifies the person who will be responsible
for providing that treatment to the defendant; and
(2) the court finds that the treatment proposed by the
plan will be available to and will be provided to the defendant.
SECTION 8. Articles 46B.073(a) and (b), Code of Criminal
Procedure, are amended to read as follows:
(a) This article applies only to a defendant not released on
bail who is subject to an initial restoration period based on
Article 46B.071.
(b) The court shall commit a defendant described by
Subsection (a) to a mental health facility or residential care
facility for a period not to exceed 60 [120] days for further
examination and treatment toward the specific objective of
attaining competency to stand trial.
SECTION 9. Article 46B.076(a), Code of Criminal Procedure,
is amended to read as follows:
(a) If the defendant is found incompetent to stand trial,
not later than the date of the order of commitment or of release on
bail, as applicable, the court shall send a copy of the order to the
facility of the department to which the defendant is committed or
the outpatient treatment program to which the defendant is
released. The court shall also provide to the facility or
outpatient treatment program copies of the following made available
to the court during the incompetency trial:
(1) reports of each expert;
(2) psychiatric, psychological, or social work
reports that relate to the medical [mental] condition of the
defendant;
(3) documents provided by the attorney representing
the state or the attorney representing the defendant that relate to
the defendant's current or past medical [mental] condition;
(4) copies of the indictment or information and any
supporting documents used to establish probable cause in the case;
(5) the defendant's criminal history record; and
(6) the addresses of the attorney representing the
state and the attorney representing the defendant.
SECTION 10. Article 46B.077, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.077. INDIVIDUAL TREATMENT PROGRAM. (a) The
facility to which the defendant is committed or the outpatient
treatment program to which the defendant is released on bail shall:
(1) develop an individual program of treatment;
(2) assess and evaluate whether the defendant is
likely to be restored to [will obtain] competency in the
foreseeable future; and
(3) report to the court and to the local mental health
authority or to the local mental retardation authority on the
defendant's progress toward achieving competency.
(b) If the defendant is committed to an inpatient mental
health facility or to a residential care facility, the facility
shall report to the court at least once during the commitment
period. If the defendant is released to a treatment program not
provided by an inpatient mental health facility or a residential
care facility, the treatment program shall report to the court:
(1) not later than the 14th day after the date on which
the defendant's treatment begins; and
(2) until the defendant is no longer released to the
treatment program, at least once during each 15-day [30-day] period
following the date of the report required by Subdivision (1).
SECTION 11. Article 46B.079, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.079. NOTICE AND REPORT TO COURT. (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.
(b) The head of the facility or outpatient treatment program
provider shall promptly notify the court when the head of the
facility or outpatient treatment program provider believes that:
(1) the defendant has attained competency to stand
trial; or
(2) the defendant is not likely to [will not] attain
competency in the foreseeable future.
(c) When the head of the facility or outpatient treatment
program provider gives notice to the court under Subsection (a) or
(b), the head of the facility or outpatient treatment program
provider also shall file a final report with the court stating the
reason for the proposed discharge under this chapter and including
a list of the types and dosages of medications with which the
defendant was treated [for mental illness] while in the facility or
participating in the outpatient treatment program. To enable any
objection to the findings of the report to be made in a timely
manner under Article 46B.084(a), the court shall provide copies of
the report to the attorney representing the defendant and the
attorney representing the state.
(d) If the head of the facility or outpatient treatment
program provider notifies the court that the initial restoration
period is about to expire, the notice may contain a request for an
extension of the period for an additional period of 30 [60] days and
an explanation for the basis of the request.
SECTION 12. Articles 46B.080(a) and (b), Code of Criminal
Procedure, are amended to read as follows:
(a) On its own motion or the motion of any party [a request
of the head of a facility or a treatment program provider that is
made under Article 46B.079(d)] and notwithstanding any other
provision of this subchapter, the court may enter an order
extending the initial restoration period for an additional period
of 30 [60] days.
(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
will likely enable the facility or program to restore the defendant
to competency within the period of the extension.
SECTION 13. 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 if medical evidence shows
a reduction in the severity of the defendant's symptoms or
functional impairment.
SECTION 14. Article 46B.084(a), Code of Criminal Procedure,
is amended to read as follows:
(a) On the return of a defendant to the court, the court
shall make a determination with regard to the defendant's
competency to stand trial. The court may make the determination
based [solely] on the report filed under Article 46B.079(c) and on
other medical information or personal history information relating
to the defendant, unless any party objects in writing or in open
court to the findings of the report not later than the 15th day
after the date on which the court received notification under
Article 46B.079. The court shall make the determination not later
than the 20th day after the date on which the court received
notification under Article 46B.079, regardless of whether a party
objects to the report as described by this subsection and the issue
is set for hearing under Subsection (b).
SECTION 15. 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 16. Article 46B.086(a), Code of Criminal Procedure,
is amended 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-1) [(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) who, after a hearing held under Section 574.106,
Health and Safety Code, if applicable, has been found to not meet
the criteria prescribed by Sections 574.106(a) and (a-1), Health
and Safety Code, for court-ordered administration of psychoactive
medications.
SECTION 17. Article 46B.101, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.101. APPLICABILITY. This subchapter applies to a
defendant against whom a court is required to proceed according to
[under] Article 46B.084(e) or according to the court's appropriate
determination under Article 46B.071.
SECTION 18. Article 46B.151(a), Code of Criminal Procedure,
is amended to read as follows:
(a) If a court is required by Article 46B.084(f) or by its
appropriate determination under Article 46B.071 to proceed under
this subchapter, or if the court is permitted by Article 46B.004(e)
to proceed under this subchapter, the court shall determine whether
there is evidence to support a finding that the defendant is either
a person with mental illness or a person with mental retardation.
SECTION 19. To increase community-based placement
alternatives to incarceration, the Health and Human Services
Commission shall apply for and actively pursue a waiver or other
authorization to the state Medicaid plan from the federal Centers
for Medicare and Medicaid Services or any other federal agency as
necessary to provide Medicaid home and community-based services to
persons with severe and persistent mental illness who have a
history of more than one forensic commitment under Chapter 46B,
Code of Criminal Procedure.
SECTION 20. The change in law made by this Act applies only
to a defendant with respect to whom any proceeding under Chapter
46B, Code of Criminal Procedure, is conducted on or after the
effective date of this Act.
SECTION 21. This Act takes effect September 1, 2011.