By: Williams S.B. No. 931
(In the Senate - Filed February 24, 2011; March 8, 2011,
read first time and referred to Committee on Criminal Justice;
May 2, 2011, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 0; May 2, 2011,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 931 By: Huffman
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. Subsection (a), Section 2, 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 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 conducted under Subtitle C or D,
Title 7, Health and Safety Code, by a court with probate
jurisdiction.
(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) in addition to any inpatient or outpatient
treatment periods described by Subsection (a), 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, or is otherwise in the custody of the
sheriff during or while awaiting, as applicable:
(A) the defendant's transfer to a mental hospital
or other inpatient or residential facility;
(B) the defendant's 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 shall credit to the cumulative period
described by Subsection (a) 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.
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 and notice to the attorney representing the state, the
court:
(A) shall set the matter to be heard not later
than the 10th day after the date of filing of the motion; and
(B) may 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. Subsection (a), Article 46B.022, 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; and
(ii) at least [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 6. 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 and the
defendant's personal history, whether the defendant:
(A) has a [diagnosable] mental illness; or
(B) is a person with mental retardation;
(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, 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 7. Article 46B.025, Code of Criminal Procedure, is
amended by amending Subsections (a) and (b) and adding Subsection
(a-1) 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.
(a-1) The expert's opinion on the defendant's competency or
incompetency may not be based solely on the defendant's refusal to
communicate during the examination.
(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, 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, if any,
appropriate for the defendant.
SECTION 8. 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) release the defendant on bail as permitted under
Chapter 17.
SECTION 9. 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 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 10. Subsections (a) and (b), Article 46B.073, 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) For further examination and treatment toward the
specific objective of the defendant attaining competency to stand
trial, the [The] court shall commit a defendant described by
Subsection (a) to a mental health facility or residential care
facility for the applicable [a] period as follows:
(1) a period of not more than 60 days, if the defendant
is charged with an offense punishable as a misdemeanor; or
(2) a period of not more than 120 days, if the
defendant is charged with an offense punishable as a felony [not to
exceed 120 days for further examination and treatment toward the
specific objective of attaining competency to stand trial].
SECTION 11. Subchapter D, Chapter 46B, Code of Criminal
Procedure, is amended by adding Article 46B.0755 to read as
follows:
Art. 46B.0755. PROCEDURES ON CREDIBLE EVIDENCE OF IMMEDIATE
RESTORATION. (a) Notwithstanding any other provision of this
subchapter, if the court receives credible evidence indicating that
the defendant has been restored to competency at any time after the
defendant's incompetency trial under Subchapter C but before the
defendant is transported under Article 46B.075 to a mental health
facility, residential care facility, or outpatient treatment
program, as applicable, the court may appoint disinterested experts
to reexamine the defendant in accordance with Subchapter B. The
court is not required to appoint the same expert or experts who
performed the initial examination of the defendant under that
subchapter.
(b) If after a reexamination of the defendant the applicable
expert's report states an opinion that the defendant remains
incompetent, the court's order under Article 46B.072 or 46B.073
remains in effect, and the defendant shall be transported to the
facility or outpatient treatment program as required by Article
46B.075. If after a reexamination of the defendant the applicable
expert's report states an opinion that the defendant has been
restored to competency, the court shall withdraw its order under
Article 46B.072 or 46B.073 and proceed under Subsection (c) or (d).
(c) The court shall find the defendant competent to stand
trial and proceed in the same manner as if the defendant had been
found restored to competency at a hearing if:
(1) both parties agree that the defendant is competent
to stand trial; and
(2) the court concurs.
(d) The court shall hold a hearing to determine whether the
defendant has been restored to competency if any party fails to
agree or if the court fails to concur that the defendant is
competent to stand trial. If a court holds a hearing under this
subsection, on the request of the counsel for either party or the
motion of the court, a jury shall make the competency
determination. For purposes of the hearing, incompetency is
presumed, and the defendant's competency must be proved by a
preponderance of the evidence. If after the hearing the defendant
is again found to be incompetent to stand trial, the court shall
issue a new order under Article 46B.072 or 46B.073, as appropriate
based on the defendant's current condition.
SECTION 12. Subsection (a), Article 46B.077, Code of
Criminal Procedure, is amended to read as follows:
(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.
SECTION 13. 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 according to the
terms of the order or under Article 46B.0095 or other applicable
provisions of this chapter, 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 prescribed for [with
which] the defendant [was treated for mental illness] while the
defendant was 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 60 days and an
explanation for the basis of the request. An explanation provided
under this subsection must include a description of any evidence
indicating a reduction in the severity of the defendant's symptoms
or impairment.
SECTION 14. Subsections (b) and (c), Article 46B.080, Code
of Criminal Procedure, are 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
will likely enable the facility or program to restore the defendant
to competency within the period of the extension.
(c) The court may grant only one 60-day extension under this
article in connection with the specific offense with which the
defendant is charged [for a period of restoration ordered under
this subchapter].
SECTION 15. Subsection (a), Article 46B.084, 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. A[, unless any] party may object [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 16. Subsection (a), Article 46B.086, 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. Subsection (a), Article 46B.151, 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. The Department of State Health Services, in
coordination with the Health and Human Services Commission, shall
study the feasibility of providing home and community-based
services, instead of institutional care, to persons with severe and
persistent mental illness who have a history of more than one
inpatient commitment under Chapter 46B, Code of Criminal Procedure.
Not later than December 1, 2012, the department shall issue a report
to the legislature regarding the results of the feasibility study.
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.
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