Texas 2011 - 82nd Regular

Texas Senate Bill SB931 Compare Versions

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1	1	By: Williams S.B. No. 931
2	2	(In the Senate - Filed February 24, 2011; March 8, 2011,
3	3	read first time and referred to Committee on Criminal Justice;
4	4	May 2, 2011, reported adversely, with favorable Committee
5	5	Substitute by the following vote: Yeas 6, Nays 0; May 2, 2011,
6	6	sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR S.B. No. 931 By: Huffman
8	8
9	9
10	10	A BILL TO BE ENTITLED
11	11	AN ACT
12	12	relating to the determination of incompetency in criminal cases.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	SECTION 1. Subsection (a), Section 2, Article 42.03, Code
15	15	of Criminal Procedure, is amended to read as follows:
16	16	(a) In all criminal cases the judge of the court in which the
17	17	defendant is convicted shall give the defendant credit on the
18	18	defendant's sentence for the time that the defendant has spent:
19	19	(1) in jail for the case, including confinement served
20	20	as described by Article 46B.009 and excluding [other than]
21	21	confinement served as a condition of community supervision, from
22	22	the time of his arrest and confinement until his sentence by the
23	23	trial court; [or]
24	24	(2) in a substance abuse treatment facility operated
25	25	by the Texas Department of Criminal Justice under Section 493.009,
26	26	Government Code, or another court-ordered residential program or
27	27	facility as a condition of deferred adjudication community
28	28	supervision granted in the case if the defendant successfully
29	29	completes the treatment program at that facility; or
30	30	(3) confined in a mental health facility or
31	31	residential care facility as described by Article 46B.009.
32	32	SECTION 2. Article 46B.009, Code of Criminal Procedure, is
33	33	amended to read as follows:
34	34	Art. 46B.009. TIME CREDITS. A court sentencing a person
35	35	convicted of a criminal offense shall credit to the term of the
36	36	person's sentence each of the following periods for which [the
37	37	time] the person may be [is] confined in a mental health facility,
38	38	residential care facility, or jail:
39	39	(1) any period of confinement that occurs pending a
40	40	determination [trial] under Subchapter C as to the defendant's
41	41	competency to stand trial; and
42	42	(2) any period of confinement that occurs between the
43	43	date of any initial determination of the defendant's incompetency
44	44	under that subchapter and the date the person is transported to jail
45	45	following a final judicial determination that the person has been
46	46	restored to competency.
47	47	SECTION 3. Article 46B.0095, Code of Criminal Procedure, is
48	48	amended to read as follows:
49	49	Art. 46B.0095. MAXIMUM PERIOD OF [FACILITY] COMMITMENT OR
50	50	OUTPATIENT TREATMENT PROGRAM PARTICIPATION DETERMINED BY MAXIMUM
51	51	TERM FOR OFFENSE. (a) A defendant may not, under Subchapter D or E
52	52	or any other provision of this chapter, be committed to a mental
53	53	hospital or other inpatient or residential facility, ordered to
54	54	participate in an outpatient treatment program, or subjected to
55	55	both inpatient and outpatient treatment for a cumulative period
56	56	that exceeds the maximum term provided by law for the offense for
57	57	which the defendant was to be tried, except that if the defendant is
58	58	charged with a misdemeanor and has been ordered only to participate
59	59	in an outpatient treatment program under Subchapter D or E, the
60	60	maximum period of restoration is two years [beginning on the date of
61	61	the initial order for outpatient treatment program participation
62	62	was entered].
63	63	(b) On expiration of the maximum restoration period under
64	64	Subsection (a), the defendant may be confined for an additional
65	65	period in a mental hospital or other inpatient or residential
66	66	facility or ordered to participate for an additional period in an
67	67	outpatient treatment program, as appropriate, only pursuant to
68	68	civil [commitment] proceedings conducted under Subtitle C or D,
69	69	Title 7, Health and Safety Code, by a court with probate
70	70	jurisdiction.
71	71	(c) The cumulative period described by Subsection (a):
72	72	(1) begins on the date the initial order of commitment
73	73	or initial order for outpatient treatment program participation is
74	74	entered under this chapter; and
75	75	(2) in addition to any inpatient or outpatient
76	76	treatment periods described by Subsection (a), includes any time
77	77	that, following the entry of an order described by Subdivision (1),
78	78	the defendant is confined in a correctional facility, as defined by
79	79	Section 1.07, Penal Code, or is otherwise in the custody of the
80	80	sheriff during or while awaiting, as applicable:
81	81	(A) the defendant's transfer to a mental hospital
82	82	or other inpatient or residential facility;
83	83	(B) the defendant's release on bail to
84	84	participate in an outpatient treatment program; or
85	85	(C) a criminal trial following any temporary
86	86	restoration of the defendant's competency to stand trial.
87	87	(d) The court shall credit to the cumulative period
88	88	described by Subsection (a) any time that a defendant, following
89	89	arrest for the offense for which the defendant was to be tried, is
90	90	confined in a correctional facility, as defined by Section 1.07,
91	91	Penal Code, before the initial order of commitment or initial order
92	92	for outpatient treatment program participation is entered under
93	93	this chapter.
94	94	SECTION 4. Article 46B.010, Code of Criminal Procedure, is
95	95	amended to read as follows:
96	96	Art. 46B.010. MANDATORY DISMISSAL OF MISDEMEANOR CHARGES.
97	97	If a court orders that a defendant charged with a misdemeanor
98	98	punishable by confinement be committed to a mental hospital or
99	99	other inpatient or residential facility, participate in an
100	100	outpatient treatment program, or be subjected to both inpatient and
101	101	outpatient treatment, [the commitment of or participation in an
102	102	outpatient treatment program by a defendant who is charged with a
103	103	misdemeanor punishable by confinement] and the defendant is not
104	104	tried before the [date of] expiration of the maximum period of
105	105	restoration [under this chapter as] described by Article 46B.0095:
106	106	(1) on the motion of the attorney representing the
107	107	state, the court shall dismiss the charge; or
108	108	(2) on the motion of the attorney representing the
109	109	defendant and notice to the attorney representing the state, the
110	110	court:
111	111	(A) shall set the matter to be heard not later
112	112	than the 10th day after the date of filing of the motion; and
113	113	(B) may dismiss the charge on a finding that the
114	114	defendant was not tried before the expiration of the maximum period
115	115	of restoration[, the court on the motion of the attorney
116	116	representing the state shall dismiss the charge].
117	117	SECTION 5. Subsection (a), Article 46B.022, Code of
118	118	Criminal Procedure, is amended to read as follows:
119	119	(a) To qualify for appointment under this subchapter as an
120	120	expert, a psychiatrist or psychologist must:
121	121	(1) as appropriate, be a physician licensed in this
122	122	state or be a psychologist licensed in this state who has a doctoral
123	123	degree in psychology; and
124	124	(2) have the following certification [or experience]
125	125	or training:
126	126	(A) as appropriate, certification by:
127	127	(i) the American Board of Psychiatry and
128	128	Neurology with added or special qualifications in forensic
129	129	psychiatry; or
130	130	(ii) the American Board of Professional
131	131	Psychology in forensic psychology; or
132	132	(B) [experience or] training consisting of:
133	133	(i) at least 24 hours of specialized
134	134	forensic training relating to incompetency or insanity
135	135	evaluations; and
136	136	(ii) at least [for an appointment made
137	137	before January 1, 2005, at least five years of experience before
138	138	January 1, 2004, in performing criminal forensic evaluations for
139	139	courts; or
140	140	[(iii) for an appointment made on or after
141	141	January 1, 2005, at least five years of experience before January 1,
142	142	2004, in performing criminal forensic evaluations for courts and]
143	143	eight [or more] hours of continuing education relating to forensic
144	144	evaluations, completed in the 12 months preceding the appointment
145	145	[and documented with the court].
146	146	SECTION 6. Article 46B.024, Code of Criminal Procedure, is
147	147	amended to read as follows:
148	148	Art. 46B.024. FACTORS CONSIDERED IN EXAMINATION. During an
149	149	examination under this subchapter and in any report based on that
150	150	examination, an expert shall consider, in addition to other issues
151	151	determined relevant by the expert, the following:
152	152	(1) the capacity of the defendant during criminal
153	153	proceedings to:
154	154	(A) rationally understand the charges against
155	155	the defendant and the potential consequences of the pending
156	156	criminal proceedings;
157	157	(B) disclose to counsel pertinent facts, events,
158	158	and states of mind;
159	159	(C) engage in a reasoned choice of legal
160	160	strategies and options;
161	161	(D) understand the adversarial nature of
162	162	criminal proceedings;
163	163	(E) exhibit appropriate courtroom behavior; and
164	164	(F) testify;
165	165	(2) as supported by current indications and the
166	166	defendant's personal history, whether the defendant:
167	167	(A) has a [diagnosable] mental illness; or
168	168	(B) is a person with mental retardation;
169	169	(3) whether the identified condition has lasted or is
170	170	expected to last continuously for at least one year;
171	171	(4) the degree of impairment resulting from [impact
172	172	of] the mental illness or mental retardation, if existent, and the
173	173	specific impact on the defendant's capacity to engage with counsel
174	174	in a reasonable and rational manner; and
175	175	(5) [(4)] if the defendant is taking psychoactive or
176	176	other medication:
177	177	(A) whether the medication is necessary to
178	178	maintain the defendant's competency; and
179	179	(B) the effect, if any, of the medication on the
180	180	defendant's appearance, demeanor, or ability to participate in the
181	181	proceedings.
182	182	SECTION 7. Article 46B.025, Code of Criminal Procedure, is
183	183	amended by amending Subsections (a) and (b) and adding Subsection
184	184	(a-1) to read as follows:
185	185	(a) An expert's report to the court must state an opinion on
186	186	a defendant's competency or incompetency to stand trial or explain
187	187	why the expert is unable to state such an opinion and must also:
188	188	(1) identify and address specific issues referred to
189	189	the expert for evaluation;
190	190	(2) document that the expert explained to the
191	191	defendant the purpose of the evaluation, the persons to whom a
192	192	report on the evaluation is provided, and the limits on rules of
193	193	confidentiality applying to the relationship between the expert and
194	194	the defendant;
195	195	(3) in specific [general] terms, describe procedures,
196	196	techniques, and tests used in the examination, [and] the purpose of
197	197	each procedure, technique, or test, and the conclusions reached;
198	198	and
199	199	(4) state the expert's clinical observations,
200	200	findings, and opinions on each specific issue referred to the
201	201	expert by the court, state the specific criteria supporting the
202	202	expert's diagnosis, and state specifically any issues on which the
203	203	expert could not provide an opinion.
204	204	(a-1) The expert's opinion on the defendant's competency or
205	205	incompetency may not be based solely on the defendant's refusal to
206	206	communicate during the examination.
207	207	(b) If in the opinion of an expert appointed under Article
208	208	46B.021 the defendant is incompetent to proceed, the expert shall
209	209	state in the report:
210	210	(1) the symptoms, exact nature, severity, and expected
211	211	duration of the deficits resulting from the defendant's mental
212	212	illness or mental retardation, if any, and the [that] impact of the
213	213	identified condition on the factors listed in Article 46B.024[,
214	214	contributing to the defendant's incompetency]; [and]
215	215	(2) an estimate of the period needed to restore the
216	216	defendant's competency, including whether the defendant is likely
217	217	to be restored to competency in the foreseeable future; and
218	218	(3) prospective treatment options, if any,
219	219	appropriate for the defendant.
220	220	SECTION 8. Article 46B.071, Code of Criminal Procedure, is
221	221	amended to read as follows:
222	222	Art. 46B.071. OPTIONS ON DETERMINATION OF INCOMPETENCY.
223	223	(a) Except as provided by Subsection (b), on [On] a determination
224	224	that a defendant is incompetent to stand trial, the court shall:
225	225	(1) commit the defendant to a facility under Article
226	226	46B.073; or
227	227	(2) release the defendant on bail under Article
228	228	46B.072.
229	229	(b) On a determination that a defendant is incompetent to
230	230	stand trial and is unlikely to be restored to competency in the
231	231	foreseeable future, the court shall:
232	232	(1) proceed under Subchapter E or F; or
233	233	(2) release the defendant on bail as permitted under
234	234	Chapter 17.
235	235	SECTION 9. Article 46B.072, Code of Criminal Procedure, is
236	236	amended by amending Subsections (a), (b), and (c) and adding
237	237	Subsection (a-1) to read as follows:
238	238	(a) This article applies only to a defendant who is subject
239	239	to an initial restoration period based on Article 46B.071.
240	240	(a-1) Subject to conditions reasonably related to assuring
241	241	public safety and the effectiveness of the defendant's treatment,
242	242	if the court determines that a defendant found incompetent to stand
243	243	trial is not a danger to others and may be safely treated on an
244	244	outpatient basis with the specific objective of attaining
245	245	competency to stand trial and if an appropriate outpatient
246	246	treatment program is available for the defendant, the court:
247	247	(1) may release on bail a defendant found incompetent
248	248	to stand trial with respect to a felony or may continue the
249	249	defendant's release on bail; and
250	250	(2) shall release on bail a defendant found
251	251	incompetent to stand trial with respect to a misdemeanor or shall
252	252	continue the defendant's release on bail.
253	253	(b) The court shall order a defendant released on bail under
254	254	Subsection (a-1) [(a)] to participate in an outpatient treatment
255	255	program for a period not to exceed 120 days.
256	256	(c) Notwithstanding Subsection (a-1) [(a)], the court may
257	257	order a defendant to participate in an outpatient treatment program
258	258	under this article only if:
259	259	(1) the court receives and approves a comprehensive
260	260	plan that:
261	261	(A) provides for the treatment of the defendant
262	262	for purposes of competency restoration; and
263	263	(B) identifies the person who will be responsible
264	264	for providing that treatment to the defendant; and
265	265	(2) the court finds that the treatment proposed by the
266	266	plan will be available to and will be provided to the defendant.
267	267	SECTION 10. Subsections (a) and (b), Article 46B.073, Code
268	268	of Criminal Procedure, are amended to read as follows:
269	269	(a) This article applies only to a defendant not released on
270	270	bail who is subject to an initial restoration period based on
271	271	Article 46B.071.
272	272	(b) For further examination and treatment toward the
273	273	specific objective of the defendant attaining competency to stand
274	274	trial, the [The] court shall commit a defendant described by
275	275	Subsection (a) to a mental health facility or residential care
276	276	facility for the applicable [a] period as follows:
277	277	(1) a period of not more than 60 days, if the defendant
278	278	is charged with an offense punishable as a misdemeanor; or
279	279	(2) a period of not more than 120 days, if the
280	280	defendant is charged with an offense punishable as a felony [not to
281	281	exceed 120 days for further examination and treatment toward the
282	282	specific objective of attaining competency to stand trial].
283	283	SECTION 11. Subchapter D, Chapter 46B, Code of Criminal
284	284	Procedure, is amended by adding Article 46B.0755 to read as
285	285	follows:
286	286	Art. 46B.0755. PROCEDURES ON CREDIBLE EVIDENCE OF IMMEDIATE
287	287	RESTORATION. (a) Notwithstanding any other provision of this
288	288	subchapter, if the court receives credible evidence indicating that
289	289	the defendant has been restored to competency at any time after the
290	290	defendant's incompetency trial under Subchapter C but before the
291	291	defendant is transported under Article 46B.075 to a mental health
292	292	facility, residential care facility, or outpatient treatment
293	293	program, as applicable, the court may appoint disinterested experts
294	294	to reexamine the defendant in accordance with Subchapter B. The
295	295	court is not required to appoint the same expert or experts who
296	296	performed the initial examination of the defendant under that
297	297	subchapter.
298	298	(b) If after a reexamination of the defendant the applicable
299	299	expert's report states an opinion that the defendant remains
300	300	incompetent, the court's order under Article 46B.072 or 46B.073
301	301	remains in effect, and the defendant shall be transported to the
302	302	facility or outpatient treatment program as required by Article
303	303	46B.075. If after a reexamination of the defendant the applicable
304	304	expert's report states an opinion that the defendant has been
305	305	restored to competency, the court shall withdraw its order under
306	306	Article 46B.072 or 46B.073 and proceed under Subsection (c) or (d).
307	307	(c) The court shall find the defendant competent to stand
308	308	trial and proceed in the same manner as if the defendant had been
309	309	found restored to competency at a hearing if:
310	310	(1) both parties agree that the defendant is competent
311	311	to stand trial; and
312	312	(2) the court concurs.
313	313	(d) The court shall hold a hearing to determine whether the
314	314	defendant has been restored to competency if any party fails to
315	315	agree or if the court fails to concur that the defendant is
316	316	competent to stand trial. If a court holds a hearing under this
317	317	subsection, on the request of the counsel for either party or the
318	318	motion of the court, a jury shall make the competency
319	319	determination. For purposes of the hearing, incompetency is
320	320	presumed, and the defendant's competency must be proved by a
321	321	preponderance of the evidence. If after the hearing the defendant
322	322	is again found to be incompetent to stand trial, the court shall
323	323	issue a new order under Article 46B.072 or 46B.073, as appropriate
324	324	based on the defendant's current condition.
325	325	SECTION 12. Subsection (a), Article 46B.077, Code of
326	326	Criminal Procedure, is amended to read as follows:
327	327	(a) The facility to which the defendant is committed or the
328	328	outpatient treatment program to which the defendant is released on
329	329	bail shall:
330	330	(1) develop an individual program of treatment;
331	331	(2) assess and evaluate whether the defendant is
332	332	likely to be restored to [will obtain] competency in the
333	333	foreseeable future; and
334	334	(3) report to the court and to the local mental health
335	335	authority or to the local mental retardation authority on the
336	336	defendant's progress toward achieving competency.
337	337	SECTION 13. Article 46B.079, Code of Criminal Procedure, is
338	338	amended to read as follows:
339	339	Art. 46B.079. NOTICE AND REPORT TO COURT. (a) The head of
340	340	the facility or the provider of the outpatient treatment program,
341	341	as appropriate, not later than the 15th day before the date on which
342	342	the initial [a] restoration period is to expire according to the
343	343	terms of the order or under Article 46B.0095 or other applicable
344	344	provisions of this chapter, shall notify the applicable court that
345	345	the [restoration] period is about to expire.
346	346	(b) The head of the facility or outpatient treatment program
347	347	provider shall promptly notify the court when the head of the
348	348	facility or outpatient treatment program provider believes that:
349	349	(1) the defendant has attained competency to stand
350	350	trial; or
351	351	(2) the defendant is not likely to [will not] attain
352	352	competency in the foreseeable future.
353	353	(c) When the head of the facility or outpatient treatment
354	354	program provider gives notice to the court under Subsection (a) or
355	355	(b), the head of the facility or outpatient treatment program
356	356	provider also shall file a final report with the court stating the
357	357	reason for the proposed discharge under this chapter and including
358	358	a list of the types and dosages of medications prescribed for [with
359	359	which] the defendant [was treated for mental illness] while the
360	360	defendant was in the facility or participating in the outpatient
361	361	treatment program. To enable any objection to the findings of the
362	362	report to be made in a timely manner under Article 46B.084(a), the
363	363	court shall provide copies of the report to the attorney
364	364	representing the defendant and the attorney representing the state.
365	365	(d) If the head of the facility or outpatient treatment
366	366	program provider notifies the court that the initial restoration
367	367	period is about to expire, the notice may contain a request for an
368	368	extension of the period for an additional period of 60 days and an
369	369	explanation for the basis of the request. An explanation provided
370	370	under this subsection must include a description of any evidence
371	371	indicating a reduction in the severity of the defendant's symptoms
372	372	or impairment.
373	373	SECTION 14. Subsections (b) and (c), Article 46B.080, Code
374	374	of Criminal Procedure, are amended to read as follows:
375	375	(b) The court may enter an order under Subsection (a) only
376	376	if the court determines that[, on the basis of information provided
377	377	by the head of the facility or the treatment program provider]:
378	378	(1) the defendant has not attained competency; and
379	379	(2) an extension of the initial restoration period
380	380	will likely enable the facility or program to restore the defendant
381	381	to competency within the period of the extension.
382	382	(c) The court may grant only one 60-day extension under this
383	383	article in connection with the specific offense with which the
384	384	defendant is charged [for a period of restoration ordered under
385	385	this subchapter].
386	386	SECTION 15. Subsection (a), Article 46B.084, Code of
387	387	Criminal Procedure, is amended to read as follows:
388	388	(a) On the return of a defendant to the court, the court
389	389	shall make a determination with regard to the defendant's
390	390	competency to stand trial. The court may make the determination
391	391	based [solely] on the report filed under Article 46B.079(c) and on
392	392	other medical information or personal history information relating
393	393	to the defendant. A[, unless any] party may object [objects] in
394	394	writing or in open court to the findings of the report not later
395	395	than the 15th day after the date on which the court received
396	396	notification under Article 46B.079. The court shall make the
397	397	determination not later than the 20th day after the date on which
398	398	the court received notification under Article 46B.079, regardless
399	399	of whether a party objects to the report as described by this
400	400	subsection and the issue is set for hearing under Subsection (b).
401	401	SECTION 16. Subsection (a), Article 46B.086, Code of
402	402	Criminal Procedure, is amended to read as follows:
403	403	(a) This article applies only to a defendant:
404	404	(1) who is determined under this chapter to be
405	405	incompetent to stand trial;
406	406	(2) who either:
407	407	(A) remains confined in a correctional facility,
408	408	as defined by Section 1.07, Penal Code, for a period exceeding 72
409	409	hours while awaiting transfer to an inpatient mental health
410	410	facility, a residential care facility, or an outpatient treatment
411	411	program;
412	412	(B) is committed to an inpatient mental health
413	413	facility or a residential care facility for the purpose of
414	414	competency restoration;
415	415	(C) is confined in a correctional facility while
416	416	awaiting further criminal proceedings following competency
417	417	restoration treatment; or
418	418	(D) is subject to Article 46B.072, if the court
419	419	has made the determinations required by Subsection (a-1) [(a)] of
420	420	that article;
421	421	(3) for whom a correctional facility that employs or
422	422	contracts with a licensed psychiatrist, an inpatient mental health
423	423	facility, a residential care facility, or an outpatient treatment
424	424	program provider has prepared a continuity of care plan that
425	425	requires the defendant to take psychoactive medications; and
426	426	(4) who, after a hearing held under Section 574.106,
427	427	Health and Safety Code, if applicable, has been found to not meet
428	428	the criteria prescribed by Sections 574.106(a) and (a-1), Health
429	429	and Safety Code, for court-ordered administration of psychoactive
430	430	medications.
431	431	SECTION 17. Article 46B.101, Code of Criminal Procedure, is
432	432	amended to read as follows:
433	433	Art. 46B.101. APPLICABILITY. This subchapter applies to a
434	434	defendant against whom a court is required to proceed according to
435	435	[under] Article 46B.084(e) or according to the court's appropriate
436	436	determination under Article 46B.071.
437	437	SECTION 18. Subsection (a), Article 46B.151, Code of
438	438	Criminal Procedure, is amended to read as follows:
439	439	(a) If a court is required by Article 46B.084(f) or by its
440	440	appropriate determination under Article 46B.071 to proceed under
441	441	this subchapter, or if the court is permitted by Article 46B.004(e)
442	442	to proceed under this subchapter, the court shall determine whether
443	443	there is evidence to support a finding that the defendant is either
444	444	a person with mental illness or a person with mental retardation.
445	445	SECTION 19. The Department of State Health Services, in
446	446	coordination with the Health and Human Services Commission, shall
447	447	study the feasibility of providing home and community-based
448	448	services, instead of institutional care, to persons with severe and
449	449	persistent mental illness who have a history of more than one
450	450	inpatient commitment under Chapter 46B, Code of Criminal Procedure.
451	451	Not later than December 1, 2012, the department shall issue a report
452	452	to the legislature regarding the results of the feasibility study.
453	453	SECTION 20. The change in law made by this Act applies only
454	454	to a defendant with respect to whom any proceeding under Chapter
455	455	46B, Code of Criminal Procedure, is conducted on or after the
456	456	effective date of this Act.
457	457	SECTION 21. This Act takes effect September 1, 2011.
458	458	* * * * *