83R2721 GCB-D
By: Zerwas H.B. No. 2349
A BILL TO BE ENTITLED
AN ACT
relating to alternate methods for providing mental health and
related services to certain defendants found incompetent to stand
trial or acquitted by reason of insanity in a criminal case.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter D, Chapter 46B, Code of Criminal
Procedure, is amended by adding Article 46B.0731 to read as
follows:
Art. 46B.0731. JAIL-BASED COMPETENCY RESTORATION. (a)
Notwithstanding Article 46B.073 or any other provision of this
chapter and except as provided by Subsection (b), instead of
committing the defendant to a mental health facility or a
residential care facility under Article 46B.073, a court may issue
an order committing the defendant to the jail in that county for
purposes of receiving competency restoration treatment under this
subchapter if the department has established a jail-based
competency restoration program under Section 1001.078, Health and
Safety Code, and if the department has made the program available in
that county.
(b) A court may not issue an order of commitment under this
article with respect to a defendant who is subject to Article
46B.073(c).
(c) A court's order of commitment under this article has the
same effect as an order of commitment issued under Article 46B.073
and, for purposes of the procedures described by this chapter,
shall be treated as if it had been issued under that article. The
court may extend an initial order of commitment under this article
in the same manner as an initial order of commitment may be extended
under Article 46B.080.
(d) With respect to each commitment order issued under this
article and each extension granted under this article,
notwithstanding Article 46B.001 or any other provision of this
chapter and solely in the context of a commitment occurring
pursuant to an initial order of commitment or an extension of that
order:
(1) a reference in this chapter to a facility means a
reference to a county jail designated as an appropriate venue for
competency restoration treatment under a jail-based competency
restoration program established under Section 1001.078, Health and
Safety Code; and
(2) a reference in this chapter to the head of that
facility means the department.
(e) Notwithstanding Subsection (c), a duty imposed by this
subchapter to transport a defendant to or from the county jail,
including the duties described by Articles 46B.075 and 46B.0755(b),
does not apply to a defendant who has been committed to that jail
under this article.
(f) For purposes of Article 46B.009(2), the period of
confinement for which the defendant may receive a time credit on the
defendant's sentence ends on the date of the final judicial
determination that the defendant has been restored to competency.
(g) A defendant who is committed to a county jail under this
article may not be committed to the jail or any other correctional
facility using civil commitment proceedings under Subtitle C or D,
Title 7, Health and Safety Code.
SECTION 2. Article 46B.086(g), Code of Criminal Procedure,
is amended to read as follows:
(g) For a defendant described by Subsection (a)(2)(A), an
order issued under this article[:
[(1)] authorizes the initiation of any appropriate
mental health treatment for the defendant awaiting transfer. The
order[; and
[(2)] does not in itself constitute authorization to
retain the defendant in a correctional facility for competency
restoration treatment, but authorization to retain the defendant in
such a manner may be available with respect to a defendant ordered
to receive competency restoration treatment under Article 46B.0731
through a program established by the department under Section
1001.078, Health and Safety Code.
SECTION 3. Subchapter C, Chapter 574, Health and Safety
Code, is amended by adding Section 574.038 to read as follows:
Sec. 574.038. CONDITIONAL RELEASE PILOT PROGRAM. (a) In
this section:
(1) "Program" means the conditional release pilot
program established under Section 1001.079.
(2) "Provider" means a community-based mental health
services provider designated by the department to provide mental
health services through the program in the county in which the
provider is located.
(b) A patient is eligible to participate in the program if
the patient:
(1) is a person:
(A) acquitted by reason of insanity under Chapter
46C, Code of Criminal Procedure, and subsequently:
(i) committed for inpatient treatment at a
mental health facility under Article 46C.256, Code of Criminal
Procedure; or
(ii) ordered to receive extended inpatient
mental health services under Section 574.035; or
(B) found incompetent to stand trial and
subsequently committed to a mental health facility under Subchapter
E, Chapter 46B, Code of Criminal Procedure;
(2) for a period of more than one year, has remained in
residence in a mental health facility to which the patient is
committed;
(3) has a documented history of taking medications
prescribed under the treatment plan administered to patients at the
mental health facility;
(4) has not recently been restrained, secluded, or
ordered to take emergency medication at the mental health facility
to which the patient is committed;
(5) was assessed as stable or declining in severity in
the two most recent assessments of the patient conducted; and
(6) has the capacity to reliably participate in a
conditional release program.
(c) A director of a mental health facility located in a
county selected by the department under Section 1001.079(a), in
consultation with the local mental health authority, shall identify
patients committed to the facility who are eligible to participate
in the program. The facility shall provide to each identified
patient care and treatment to prepare the patient to participate in
the program. If the facility determines an identified patient is
likely to receive adequate treatment under the program and comply
with conditions of release imposed by a court, the facility shall
prepare and submit to the department a conditional release
treatment plan for the patient indicating community-based mental
health services to be administered to the patient through the
program, including, if applicable to the patient, services
appropriate to prevent a patient from engaging in acts of violence.
(d) If the department determines, based on the department's
psychiatric security review process described by Section
1001.079(c), that the patient is not likely to be a danger to the
community, the department shall:
(1) approve a patient's participation in the program;
and
(2) subject to available resources of the program and
the applicable provider, recommend the patient's participation in
the program to a court in the county having jurisdiction over civil
commitment proceedings conducted under this subtitle.
(e) On a recommendation of the department, a court may order
a patient to participate in the program if:
(1) a provider certifies to the court that the
provider is capable of providing the mental health services
indicated for the patient in the patient's conditional release
treatment plan; and
(2) the patient agrees in a signed writing to
participate in the program by:
(A) following the course of treatment indicated
for the patient in the patient's conditional release treatment
plan; and
(B) complying with any other condition imposed by
the court as a condition of the patient's release.
(f) A court order issued under Subsection (e) must impose on
the patient minimum treatment and supervision requirements as
conditions of release, including a condition that the patient must
abstain from consuming alcohol or illicit drugs and a condition
that the patient must comply with random alcohol and drug testing
administered by the provider.
(g) On an order issued by the court pursuant to Subsection
(e), a mental health facility shall:
(1) release a patient to the care of the provider; and
(2) transport the patient to the location designated
by the provider.
(h) For purposes of the application of this subtitle and any
order for court-ordered mental health services, a patient
conditionally released under this section remains committed to the
mental health facility from which the patient was conditionally
released under this section. If a court sets aside the order for
court-ordered mental health services under which the patient was
initially committed at a hearing held for that purpose, or if the
order for court-ordered mental health services expires, as provided
by Section 574.110, the patient is released from commitment to the
facility and is no longer a patient receiving mental health
services through the program.
(i) If the provider or the local mental health authority
certifies to the court that the patient has violated a condition
imposed by the court, the patient's condition has deteriorated, or,
in the opinion of a mental health professional, the patient is a
danger to self or others, the court, within 24 hours of receiving
the certification, shall revoke the order for conditional release.
(j) The court shall order the patient transported to and
returned to the care of the applicable mental health facility not
later than 24 hours after:
(1) as described by Subsection (i), the court revokes
the order for conditional release on certification from the
provider or the local mental health authority that:
(A) the patient has violated a condition imposed
by the court;
(B) the patient's condition has deteriorated; or
(C) in the opinion of a mental health
professional, the patient is a danger to self or others;
(2) the court order for conditional release to
participate in the program expires; or
(3) the program expires.
(k) A patient ordered to receive mental health services
through the program is not eligible for a pass or furlough under
Section 574.082.
(l) This section expires September 1, 2017. An order issued
under this section authorizing the conditional release of a patient
must expire before that date.
SECTION 4. Subchapter D, Chapter 1001, Health and Safety
Code, is amended by adding Sections 1001.078 and 1001.079 to read as
follows:
Sec. 1001.078. JAIL-BASED COMPETENCY RESTORATION PROGRAM;
WORK GROUP. (a) The executive commissioner by rule may establish a
jail-based competency restoration program to be operated by the
department if the work group formed under this subsection
recommends the program's establishment. The department shall form
a work group to determine whether a jail-based competency
restoration program to provide competency restoration treatment in
county jails to defendants who are subject to competency
restoration under Subchapter D, Chapter 46B, Code of Criminal
Procedure, may be operated by the department without any increase
in state spending on mental health treatment. The work group shall
make a recommendation to the executive commissioner regarding the
establishment of a program under this section.
(b) A program established under this section must provide
for a partnership between a county and the department through which
the department provides competency restoration treatment to each
defendant who is subject to competency restoration under Subchapter
D, Chapter 46B, Code of Criminal Procedure, and is ordered to
receive competency restoration treatment under Article 46B.0731 of
that code in the county jail for the county in which the applicable
criminal case is pending. The department may enter into multiple
partnerships under this section.
(c) A program established under this section must include a
quality review process designed to ensure that competency
restoration treatment provided to a defendant through the program
in a county jail is equivalent to the treatment that would be
provided to the defendant if the defendant were committed to a
mental health facility operated by the department.
Sec. 1001.079. CONDITIONAL RELEASE PILOT PROGRAM. (a) The
executive commissioner by rule shall establish a conditional
release pilot program for eligible patients under Section
574.038(b), to be operated by the department in one or more counties
selected by the department.
(b) The department, in consultation with the local mental
health authority, shall designate a community-based mental health
services provider to provide mental health services in each county
in which the pilot program operates.
(c) The department shall solicit input from appropriate
local mental health authorities, community-based mental health
services providers, and mental health facilities in designing a
psychiatric security review process to evaluate whether a patient
would likely be a danger to the community if released from the
mental health facility to which the patient would be committed
under an order for conditional release to participate in the pilot
program.
(d) In adopting rules under this section, the executive
commissioner shall ensure that the pilot program provides patients
opportunities to be employed in the community, such as through a
supported work program, or to participate in community-based
vocational training.
(e) In adopting rules under this section, the executive
commissioner must specify what information the department must
collect during the operation of the pilot program for use in
evaluating the outcome of the program.
(f) The local mental health authority in a county in which
the pilot program operates, the community-based mental health
services provider designated by the department to provide mental
health services through the pilot program in that county, and the
mental health facility from which the patient is conditionally
released shall schedule regular meetings for the purpose of
evaluating the patient's mental health and the patient's adherence
to the conditions of the release imposed on the patient by the
court.
(g) During the operation of the pilot program, the
commissioner of state health services shall submit biennial reports
concerning the pilot program to the governor, the legislative
budget director of the Legislative Budget Board, and the presiding
officers of the standing committees of the senate and house of
representatives having primary jurisdiction over health and human
services issues and over criminal justice issues. The commissioner
shall submit the first report not later than December 1, 2014, and
the second report not later than December 1, 2016. Each report must
contain the information collected by the department during the
operation of the pilot program, the commissioner's evaluation of
the outcome of the program as of the date of the report, the
commissioner's recommendation as to whether to expand the operation
of the program, and the commissioner's determination of whether the
program has resulted in an increase in state spending on mental
health treatment.
(h) The conditional release pilot program established under
this section concludes and this section expires September 1, 2017.
SECTION 5. The change in law made by this Act to Chapter
46B, Code of Criminal Procedure, applies only to a proceeding under
that chapter that commences on or after the effective date of this
Act, regardless of when the defendant may have committed the
underlying offense for which the defendant became subject to the
proceeding.
SECTION 6. (a) The Department of State Health Services
shall form the work group as required by Section 1001.078, Health
and Safety Code, as added by this Act, as soon as practicable after
the effective date of this Act, and the work group shall make a
recommendation regarding the establishment of a jail-based
competency restoration program to the executive commissioner of the
Health and Human Services Commission not later than February 1,
2014.
(b) The executive commissioner of the Health and Human
Services Commission shall establish the pilot program required
under Section 1001.079, Health and Safety Code, as added by this
Act, not later than February 1, 2014.
SECTION 7. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2013.