85R9538 LHC-F
By: Price H.B. No. 3001
A BILL TO BE ENTITLED
AN ACT
relating to procedures regarding criminal defendants who are or may
be persons with a mental illness or an intellectual disability.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 15.17, Code of Criminal Procedure, is
amended by adding Subsection (a-1) to read as follows:
(a-1) If a magistrate is provided written or electronic
notice of credible information that may establish reasonable cause
to believe that a person brought before the magistrate has a mental
illness or is a person with an intellectual disability, the
magistrate shall conduct the proceedings described by Article 16.22
or 17.032, as appropriate.
SECTION 2. Article 16.22, Code of Criminal Procedure, is
amended to read as follows:
Art. 16.22. EARLY IDENTIFICATION OF DEFENDANT SUSPECTED OF
HAVING MENTAL ILLNESS OR INTELLECTUAL DISABILITY [MENTAL
RETARDATION]. (a)(1) Not later than four [72] hours after the
sheriff or other person having custody of a defendant for an offense
punishable as a Class B misdemeanor or any higher category of
offense determines that [receiving credible information that may
establish] reasonable cause may exist to believe that the [a]
defendant [committed to the sheriff's custody] has a mental illness
or is a person with an intellectual disability [mental retardation,
including observation of the defendant's behavior immediately
before, during, and after the defendant's arrest and the results of
any previous assessment of the defendant], the sheriff or other
person shall provide written or electronic notice [of the
information] to the magistrate. The notice must include any
information related to the sheriff's or other person's
determination, such as information regarding the defendant's
behavior immediately before, during, and after the defendant's
arrest and, if applicable, the results of any previous assessment
of the defendant. On a determination that there is reasonable cause
to believe that the defendant has a mental illness or is a person
with an intellectual disability [mental retardation], the
magistrate, except as provided by Subdivision (2), shall order the
local mental health [or mental retardation] authority, local
intellectual and developmental disability authority, or another
qualified mental health or intellectual disability [mental
retardation] expert to:
(A) collect information regarding whether the
defendant has a mental illness as defined by Section 571.003,
Health and Safety Code, or is a person with an intellectual
disability [mental retardation] as defined by Section 591.003,
Health and Safety Code, including, if applicable, information
obtained from any previous assessment of the defendant and
information regarding any previously recommended treatment; and
(B) provide to the magistrate a written
assessment of the information collected under Paragraph (A) on the
form approved by the Texas Correctional Office on Offenders with
Medical or Mental Impairments under Section 614.0032(b)(3), Health
and Safety Code.
(2) The magistrate is not required to order the
collection of information under Subdivision (1) if the defendant in
the year preceding the defendant's applicable date of arrest has
been determined to have a mental illness or to be a person with an
intellectual disability [mental retardation] by the local mental
health [or mental retardation] authority, local intellectual and
developmental disability authority, or another mental health or
intellectual disability [mental retardation] expert described by
Subdivision (1). A court that elects to use the results of that
previous determination may proceed under Subsection (c).
(3) If the defendant fails or refuses to submit to the
collection of information regarding the defendant as required under
Subdivision (1), the magistrate may order the defendant to submit
to an examination in a jail or in another place [mental health
facility] determined to be appropriate by the local mental health
[or mental retardation] authority or local intellectual and
developmental disability authority for a reasonable period not to
exceed 48 hours [21 days]. If applicable, the [The magistrate may
order a defendant to a facility operated by the Department of State
Health Services or the Department of Aging and Disability Services
for examination only on request of the local mental health or mental
retardation authority and with the consent of the head of the
facility. If a defendant who has been ordered to a facility
operated by the Department of State Health Services or the
Department of Aging and Disability Services for examination remains
in the facility for a period exceeding 21 days, the head of that
facility shall cause the defendant to be immediately transported to
the committing court and placed in the custody of the sheriff of the
county in which the committing court is located. That] county in
which the committing court is located shall reimburse the local
mental health authority or local intellectual and developmental
disability authority [facility] for the mileage and per diem
expenses of the personnel required to transport the defendant,
calculated in accordance with the state travel regulations in
effect at the time.
(b) Except as otherwise permitted by the magistrate for good
cause shown, a [A] written assessment of the information collected
under Subsection (a)(1)(A) shall be provided to the magistrate:
(1) for a defendant held in custody, not later than 72
hours after the time an order was issued under Subsection (a); or
(2) for a defendant released from custody, not later
than the 30th day after the date an [of any] order was issued under
Subsection (a).
(b-1) The [in a felony case and not later than the 10th day
after the date of any order issued under that subsection in a
misdemeanor case, and the] magistrate shall provide copies of the
written assessment to the defense counsel, the [prosecuting]
attorney representing the state, and the trial court. The written
assessment must include a description of the procedures used in the
collection of information under Subsection (a)(1)(A) and the
applicable expert's observations and findings pertaining to:
(1) whether the defendant is a person who has a mental
illness or is a person with an intellectual disability [mental
retardation];
(2) whether there is clinical evidence to support a
belief that the defendant may be incompetent to stand trial and
should undergo a complete competency examination under Subchapter
B, Chapter 46B; and
(3) any appropriate or recommended treatment or
service.
(c) After the trial court receives the applicable expert's
written assessment relating to the defendant under Subsection (b-1)
[(b)] or elects to use the results of a previous determination as
described by Subsection (a)(2), the trial court may, as applicable:
(1) resume criminal proceedings against the
defendant, including any appropriate proceedings related to the
defendant's release on personal bond under Article 17.032 if the
defendant is being held in custody;
(2) resume or initiate competency proceedings, if
required, as provided by Chapter 46B or other proceedings affecting
the defendant's receipt of appropriate court-ordered mental health
or intellectual disability [mental retardation] services,
including proceedings related to the defendant's receipt of
outpatient mental health services under Section 574.034, Health and
Safety Code; [or]
(3) consider the written assessment during the
punishment phase after a conviction of the offense for which the
defendant was arrested, as part of a presentence investigation
report, or in connection with the impositions of conditions
following placement on community supervision, including deferred
adjudication community supervision; or
(4) refer the defendant to an appropriate specialty
court established or operated under Subtitle K, Title 2, Government
Code.
(d) This article does not prevent the applicable court from,
before, during, or after the collection of information regarding
the defendant as described by this article:
(1) releasing a defendant who has a mental illness
[mentally ill] or is a person with an intellectual disability
[mentally retarded defendant] from custody on personal or surety
bond, including imposing as a condition of release that the
defendant submit to an examination or other assessment; or
(2) ordering an examination regarding the defendant's
competency to stand trial.
(e) The magistrate shall submit to the Office of Court
Administration of the Texas Judicial System on a monthly basis the
number of written assessments provided to the court under
Subsection (a)(1)(B).
SECTION 3. Articles 17.032(a), (b), (c), and (d), Code of
Criminal Procedure, are amended to read as follows:
(a) In this article, "violent offense" means an offense
under the following sections of the Penal Code:
(1) Section 19.02 (murder);
(2) Section 19.03 (capital murder);
(3) Section 20.03 (kidnapping);
(4) Section 20.04 (aggravated kidnapping);
(5) Section 21.11 (indecency with a child);
(6) Section 22.01(a)(1) (assault), if the offense
involved family violence as defined by Section 71.004, Family Code;
(7) Section 22.011 (sexual assault);
(8) Section 22.02 (aggravated assault);
(9) Section 22.021 (aggravated sexual assault);
(10) Section 22.04 (injury to a child, elderly
individual, or disabled individual);
(11) Section 29.03 (aggravated robbery);
(12) Section 21.02 (continuous sexual abuse of young
child or children); or
(13) Section 20A.03 (continuous trafficking of
persons).
(b) Notwithstanding Article 17.03(b), or a bond schedule
adopted or a standing order entered by a judge, a [A] magistrate
shall release a defendant on personal bond unless good cause is
shown otherwise if [the]:
(1) the defendant is not charged with and has not been
previously convicted of a violent offense;
(2) the defendant is examined by the local mental
health [or mental retardation] authority, local intellectual and
developmental disability authority, or another qualified mental
health or intellectual disability expert under Article 16.22 [of
this code];
(3) the applicable expert, in a written assessment
submitted to the magistrate under Article 16.22, [:
[(A)] concludes that the defendant has a mental
illness or is a person with an intellectual disability [mental
retardation] and requires treatment not available in jail [is
nonetheless competent to stand trial]; [and
[(B) recommends mental health treatment for the
defendant; and]
(4) the magistrate determines, in consultation with
the local mental health [or mental retardation] authority or local
intellectual and developmental disability authority, that
appropriate community-based mental health or intellectual
disability [mental retardation] services for the defendant are
available in accordance with [through the Texas Department of
Mental Health and Mental Retardation under] Section 534.053 or
534.103, Health and Safety Code, or through another mental health
or intellectual disability [mental retardation] services provider;
and
(5) the magistrate finds, after considering all the
circumstances, a pretrial risk assessment, if applicable, and any
other credible information provided by the attorney representing
the state or the defendant, that release on personal bond would
reasonably ensure the defendant's appearance in court as required
and the safety of the community and the victim of the alleged
offense.
(c) The magistrate, unless good cause is shown for not
requiring treatment, shall require as a condition of release on
personal bond under this article that the defendant submit to
outpatient or inpatient mental health or intellectual disability
[mental retardation] treatment as recommended by the local mental
health [or mental retardation] authority, local intellectual and
developmental disability authority, or another qualified mental
health or intellectual disability expert if the defendant's:
(1) mental illness or intellectual disability [mental
retardation] is chronic in nature; or
(2) ability to function independently will continue to
deteriorate if the defendant is not treated.
(d) In addition to a condition of release imposed under
Subsection (c) [of this article], the magistrate may require the
defendant to comply with other conditions that are reasonably
necessary to ensure the defendant's appearance in court as required
and the safety of [protect] the community and the victim of the
alleged offense.
SECTION 4. Article 32A.01, Code of Criminal Procedure, is
amended by amending Subsection (a) and adding Subsection (c) to
read as follows:
(a) Insofar as is practicable, the trial of a criminal
action shall be given preference over trials of civil cases, and the
trial of a criminal action against a defendant who is detained in
jail pending trial of the action shall be given preference over
trials of other criminal actions not described by Subsection (b) or
(c).
(c) Except as provided by Subsection (b), the trial of a
criminal action against a defendant who has been determined to be
restored to competency under Article 46B.084 shall be given
preference over other matters before the court, whether civil or
criminal.
SECTION 5. The heading to Article 46B.0095, Code of
Criminal Procedure, is amended to read as follows:
Art. 46B.0095. MAXIMUM PERIOD OF COMMITMENT OR [OUTPATIENT
TREATMENT] PROGRAM PARTICIPATION DETERMINED BY MAXIMUM TERM FOR
OFFENSE.
SECTION 6. Articles 46B.0095(a), (b), (c), and (d), Code of
Criminal Procedure, are amended to read as follows:
(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 or to a jail-based
restoration of competency program, ordered to participate in an
outpatient [treatment] program, or subjected to any combination of
[both] inpatient or [and] outpatient treatment or program
participation 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.
(b) On expiration of the maximum restoration period under
Subsection (a), the mental hospital, [or other inpatient or
residential] facility, or [outpatient treatment] program provider
identified in the most recent order of commitment or order of
outpatient [treatment] program participation under this chapter
shall assess the defendant to determine if civil proceedings under
Subtitle C or D, Title 7, Health and Safety Code, are appropriate.
The defendant may be confined for an additional period in a mental
hospital or other [inpatient or residential] facility or jail-based
program or ordered to participate for an additional period in an
outpatient [treatment] program, as appropriate, only pursuant to
civil 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 or program participation 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:
(i) a mental hospital or other inpatient or
residential facility; or
(ii) a jail-based restoration of competency
program;
(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 7. 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 or to a jail-based
restoration of competency program, participate in an outpatient
[treatment] program, or be subjected to any combination of [both]
inpatient or [and] outpatient treatment or program participation,
and the defendant is not tried before the expiration of the maximum
period of restoration 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.
SECTION 8. Article 46B.026, Code of Criminal Procedure, is
amended by adding Subsection (d) to read as follows:
(d) The court shall submit to the Office of Court
Administration of the Texas Judicial System on a monthly basis the
number of reports provided to the court under this article.
SECTION 9. Article 46B.071(a), Code of Criminal Procedure,
is amended to read as follows:
(a) Except as provided by Subsection (b), on a determination
that a defendant is incompetent to stand trial and is subject to an
initial restoration period, the court shall:
(1) if the defendant is charged with an offense
punishable as a Class B misdemeanor:
(A) commit the defendant to a program [facility]
under Article 46B.073; or
(B) [(2)] release the defendant on bail under
Article 46B.0711; or
(2) if the defendant is charged with an offense
punishable as a Class A misdemeanor or any higher category of
offense:
(A) commit the defendant to a facility or program
under Article 46B.073; or
(B) release the defendant on bail under Article
46B.072.
SECTION 10. Subchapter D, Chapter 46B, Code of Criminal
Procedure, is amended by adding Article 46B.0711 to read as
follows:
Art. 46B.0711. RELEASE ON BAIL FOR CLASS B MISDEMEANOR. (a)
Subject to conditions reasonably related to ensuring public safety
and the effectiveness of the defendant's treatment, if the court
determines that a defendant charged with an offense punishable as a
Class B misdemeanor and 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,
the court shall:
(1) release the defendant on bail or continue the
defendant's release on bail; and
(2) order the defendant to participate in an
outpatient treatment program for a period not to exceed 90 days.
(b) If the defendant successfully completes the outpatient
treatment program described by Subsection (a), the court shall:
(1) on the motion of the attorney representing the
state, dismiss the charge; or
(2) proceed as otherwise required by this subchapter.
(c) If the defendant does not successfully complete the
outpatient treatment program described by Subsection (a), the court
may:
(1) for the remainder of the 90-day period described
by Subsection (a)(2), commit the defendant to a jail-based
restoration of competency program under Article 46B.073 if the
maximum period of restoration described by Article 46B.0095 has not
expired; or
(2) on the motion of the attorney representing the
state, dismiss the charge.
SECTION 11. The heading to Article 46B.072, Code of
Criminal Procedure, is amended to read as follows:
Art. 46B.072. RELEASE ON BAIL FOR CLASS A MISDEMEANOR OR
FELONY.
SECTION 12. Article 46B.072, Code of Criminal Procedure, is
amended by amending Subsection (a-1) and adding Subsections (e) and
(f) to read as follows:
(a-1) Subject to conditions reasonably related to ensuring
[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 an offense punishable as 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 an offense punishable as
a Class A [a] misdemeanor or shall continue the defendant's release
on bail.
(e) If the defendant successfully completes the outpatient
treatment program described by Subsection (a-1), the court shall:
(1) on the motion of the attorney representing the
state, dismiss the charge; or
(2) proceed as otherwise required by this subchapter.
(f) If the defendant does not successfully complete the
outpatient treatment program described by Subsection (a-1), the
court may:
(1) for the remainder of the 120-day period described
by Subsection (b), commit the defendant to a facility or to a
jail-based restoration of competency program under Article 46B.073
if the maximum period of restoration described by Article 46B.0095
has not expired; or
(2) on the motion of the attorney representing the
state, dismiss the charge.
SECTION 13. Article 46B.073, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.073. COMMITMENT FOR RESTORATION TO COMPETENCY. (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 and who:
(1) was not released on bail; or
(2) if released on bail, is made subject to this
article by action of the court under Article 46B.0711(c) or
46B.072(f).
(b) For further examination, psychiatric stabilization, and
treatment toward the specific objective of the defendant attaining
competency to stand trial, the court shall commit a defendant
described by Subsection (a) to a mental health facility, [or]
residential care facility, or jail-based restoration of competency
program for the applicable period as follows:
(1) a period of not more than 60 days, if the defendant
is described by Subsection (a)(1) and charged with an offense
punishable as a misdemeanor; [or]
(2) a period of not more than 120 days, if the
defendant is described by Subsection (a)(1) and charged with an
offense punishable as a felony; or
(3) the remainder of the restoration period specified
by the court under Article 46B.0711 or 46B.072, as applicable.
(b-1) A defendant charged with an offense punishable as a
Class B misdemeanor may be committed under this subchapter only to a
jail-based restoration of competency program.
(c) If the defendant is charged with an offense listed in
Article 17.032(a), other than an offense listed in Article
17.032(a)(6), or the indictment alleges an affirmative finding
under Article 42A.054(c) or (d), the court shall enter an order
committing the defendant for psychiatric stabilization to the
maximum security unit of any facility designated by the Department
of State Health Services, to an agency of the United States
operating a mental hospital, [or] to a Department of Veterans
Affairs hospital, or to a jail-based restoration of competency
program.
(d) If the defendant is not charged with an offense
described by Subsection (c) and the indictment does not allege an
affirmative finding under Article 42A.054(c) or (d), the court
shall enter an order committing the defendant for psychiatric
stabilization to a jail-based restoration of competency program or
to a mental health facility or residential care facility determined
to be appropriate by the local mental health authority or local
intellectual and developmental disability authority.
(e) On notification from the head of a facility or a program
provider under Article 46B.079(b)(1), the court shall order the
defendant to receive competency restoration education services in a
jail-based restoration of competency program or in an outpatient
competency restoration education program, as appropriate.
(f) If a defendant for whom an order is entered under
Subsection (e) was committed for psychiatric stabilization to a
facility other than a jail-based restoration of competency program,
the court shall send a copy of that order to:
(1) the sheriff of the county in which the court is
located; and
(2) the head of the facility to which the defendant was
committed for psychiatric stabilization [Notwithstanding
Subsections (b), (c), and (d) and notwithstanding the contents of
the applicable order of commitment, in a county in which the
Department of State Health Services operates a jail-based
restoration of competency pilot program under Article 46B.090, a
defendant for whom an order is issued under this article committing
the defendant to a mental health facility or residential care
facility shall be provided competency restoration services at the
jail under the pilot program if the service provider at the jail
determines the defendant will immediately begin to receive
services. If the service provider at the jail determines the
defendant will not immediately begin to receive competency
restoration services, the defendant shall be transferred to the
appropriate mental health facility or residential care facility as
provided by the court order. This subsection expires September 1,
2019].
SECTION 14. Article 46B.074(a), Code of Criminal Procedure,
is amended to read as follows:
(a) A defendant may be committed to a jail-based restoration
of competency program, mental health facility, or residential care
facility under this subchapter only on competent medical or
psychiatric testimony provided by an expert qualified under Article
46B.022.
SECTION 15. Article 46B.075, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.075. TRANSFER OF DEFENDANT TO FACILITY OR
[OUTPATIENT TREATMENT] PROGRAM. An order issued under Article
46B.0711, 46B.072, or 46B.073 must place the defendant in the
custody of the sheriff for transportation to the facility or
[outpatient treatment] program, as applicable, in which the
defendant is to receive treatment for purposes of competency
restoration.
SECTION 16. Articles 46B.0755(a), (b), and (d), Code of
Criminal Procedure, are amended to read as follows:
(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 the [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.0711, 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.0711, 46B.072, or 46B.073 and proceed under
Subsection (c) or (d).
(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.0711, 46B.072, or 46B.073, as
appropriate based on the defendant's current condition.
SECTION 17. Article 46B.076, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.076. COURT'S ORDER. (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 applicable facility [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 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 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.
(b) The court shall order that the transcript of all medical
testimony received by the jury or court be promptly prepared by the
court reporter and forwarded to the applicable [proper] facility or
[outpatient treatment] program.
SECTION 18. Article 46B.077, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.077. INDIVIDUAL TREATMENT PROGRAM. (a) The
facility or jail-based program 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 competency in the foreseeable future; and
(3) report to the court and to the local mental health
authority or to the local intellectual and developmental disability
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, or jail-based
restoration of competency program, the facility or program 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,
or jail-based restoration of competency program, 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 30-day period
following the date of the report required by Subdivision (1).
SECTION 19. Article 46B.078, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.078. CHARGES SUBSEQUENTLY DISMISSED. If the
charges pending against a defendant are dismissed, the court that
issued the order under Article 46B.0711, 46B.072, or 46B.073 shall
send a copy of the order of dismissal to the sheriff of the county in
which the court is located and to the head of the facility, the
provider of the jail-based restoration of competency program, or
the provider of the outpatient [treatment] program, as appropriate.
On receipt of the copy of the order, the facility or [outpatient
treatment] program shall discharge the defendant into the care of
the sheriff for transportation in the manner described by Article
46B.082.
SECTION 20. 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, the provider of the jail-based restoration of
competency program, or the provider of the outpatient [treatment]
program, as appropriate, not later than the 15th day before the date
on which the initial 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 period is about to expire.
(b) The head of the facility, jail-based restoration of
competency program provider, 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 psychiatric
stabilization but has not attained competency to stand trial;
(2) the defendant has attained competency to stand
trial; or
(3) [(2)] the defendant is not likely to 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),
(b)(2), or (b)(3) [(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 the defendant 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-1), 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 21. Article 46B.080(a), Code of Criminal Procedure,
is amended to read as follows:
(a) On 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 60 days.
SECTION 22. Article 46B.081, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.081. RETURN TO COURT. Subject to Article
46B.082(b), a defendant committed or released on bail under this
subchapter shall be returned to the applicable court as soon as
practicable after notice to the court is provided under Article
46B.079(a), (b)(2), or (b)(3) [46B.079], but not later than the
date of expiration of the period for restoration specified by the
court under Article 46B.0711, 46B.072, or 46B.073.
SECTION 23. The heading to Article 46B.082, Code of
Criminal Procedure, is amended to read as follows:
Art. 46B.082. TRANSPORTATION OF DEFENDANT TO COURT.
SECTION 24. Article 46B.082(b), Code of Criminal Procedure,
is amended to read as follows:
(b) If before the 15th day after the date on which the court
received notification under Article 46B.079(a), (b)(2), or (b)(3),
[46B.079] a defendant committed to a facility or jail-based program
or ordered to participate in an outpatient [treatment] program has
not been transported to the court that issued the order under
Article 46B.0711, 46B.072, or 46B.073, as applicable, the head of
the facility or provider of the jail-based program to which the
defendant is committed or the provider of the outpatient
[treatment] program in which the defendant is participating shall
cause the defendant to be promptly transported to the court and
placed in the custody of the sheriff of the county in which the
court is located. The county in which the court is located shall
reimburse the Department of State Health Services or the Health and
Human [Department of Aging and Disability] Services Commission, as
appropriate, for the mileage and per diem expenses of the personnel
required to transport the defendant, calculated in accordance with
rates provided in the General Appropriations Act for state
employees.
SECTION 25. Subchapter D, Chapter 46B, Code of Criminal
Procedure, is amended by adding Articles 46B.0825 and 46B.0826 to
read as follows:
Art. 46B.0825. DISCHARGE AND TRANSPORTATION OF DEFENDANT
AFTER PSYCHIATRIC STABILIZATION. (a) As soon as practicable after
receiving a copy of an order under Article 46B.073(f)(2), the
applicable facility shall discharge the defendant into the care of
the sheriff of the county in which the court is located, and the
sheriff or the sheriff's designee shall transport the defendant to
the jail-based restoration of competency program or outpatient
competency restoration education program, as appropriate.
(b) A jail-based restoration of competency program or
outpatient competency restoration education program that receives
a defendant under this article shall give to the court:
(1) notice regarding the defendant's entry into the
program for purposes of receiving competency restoration education
services; and
(2) subsequent notice as otherwise required under
Article 46B.079.
Art. 46B.0826. ADMINISTRATION OF MEDICATION WHILE IN
CUSTODY OF SHERIFF. A sheriff or other person having custody of a
defendant for transportation as required by Article 46B.075,
46B.082, or 46B.0825 shall, according to information available at
the time and unless directed otherwise by a physician treating the
defendant, ensure that the defendant is provided with the types and
dosages of medication prescribed for the defendant.
SECTION 26. Article 46B.083, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.083. SUPPORTING COMMITMENT INFORMATION PROVIDED
BY FACILITY [HEAD] OR [OUTPATIENT TREATMENT] PROGRAM [PROVIDER].
(a) If the head of the facility, the jail-based restoration of
competency program provider, or the outpatient [treatment] program
provider believes that the defendant is a person with mental
illness and meets the criteria for court-ordered mental health
services under Subtitle C, Title 7, Health and Safety Code, the head
of the facility or the [outpatient treatment] program provider
shall have submitted to the court a certificate of medical
examination for mental illness.
(b) If the head of the facility, the jail-based restoration
of competency program provider, or the outpatient [treatment]
program provider believes that the defendant is a person with an
intellectual disability, the head of the facility or the
[outpatient treatment] program provider shall have submitted to the
court an affidavit stating the conclusions reached as a result of
the examination.
SECTION 27. Articles 46B.086(a), (b), (c), and (d), Code of
Criminal Procedure, are 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, a jail-based restoration of
competency program, or an outpatient [treatment] program;
(B) is committed to an inpatient mental health
facility, [or] a residential care facility, or a jail-based
restoration of competency program for the purpose of competency
restoration;
(C) is confined in a correctional facility while
awaiting further criminal proceedings following competency
restoration treatment;
(D) is subject to Article 46B.0711, if the court
has made the determinations required by Subsection (a) of that
article; or
(E) [(D)] is subject to Article 46B.072, if the
court has made the determinations required by Subsection (a-1) 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, a jail-based restoration of
competency program, 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 or
592.156, Health and Safety Code, if applicable, has been found to
not meet the criteria prescribed by Sections 574.106(a) and (a-1)
or 592.156(a) and (b), Health and Safety Code, for court-ordered
administration of psychoactive medications.
(b) If a defendant described by Subsection (a) refuses to
take psychoactive medications as required by the defendant's
continuity of care plan, the director of the [correctional]
facility or [outpatient treatment] program provider, as
applicable, shall notify the court in which the criminal
proceedings are pending of that fact not later than the end of the
next business day following the refusal. The court shall promptly
notify the attorney representing the state and the attorney
representing the defendant of the defendant's refusal. The
attorney representing the state may file a written motion to compel
medication. The motion to compel medication must be filed not later
than the 15th day after the date a judge issues an order stating
that the defendant does not meet the criteria for court-ordered
administration of psychoactive medications under Section 574.106
or 592.156, Health and Safety Code, except that, for a defendant in
an outpatient [treatment] program, the motion may be filed at any
time.
(c) The court, after notice and after a hearing held not
later than the 10th day after the motion to compel medication is
filed, may authorize the director of the [correctional] facility or
the program provider, as applicable, to have the medication
administered to the defendant, by reasonable force if necessary. A
hearing under this subsection may be conducted using an electronic
broadcast system as provided by Article 46B.013.
(d) The court may issue an order under this article only if
the order is supported by the testimony of two physicians, one of
whom is the physician at or with the applicable [correctional]
facility or [outpatient treatment] program who is prescribing the
medication as a component of the defendant's continuity of care
plan and another who is not otherwise involved in proceedings
against the defendant. The court may require either or both
physicians to examine the defendant and report on the examination
to the court.
SECTION 28. The heading to Article 46B.090, Code of
Criminal Procedure, is amended to read as follows:
Art. 46B.090. JAIL-BASED RESTORATION OF COMPETENCY [PILOT]
PROGRAM IMPLEMENTED BY COMMISSION.
SECTION 29. Articles 46B.090(a), (a-1), (b), (c), (f), (g),
(i), (j), (k), (l), and (m), Code of Criminal Procedure, are amended
to read as follows:
(a) In this article:
(1) "Commission" [, "department"] means the Health and
Human Services Commission [Department of State Health Services].
(2) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(a-1) The commission may [If the legislature appropriates
to the department the funding necessary for the department to
operate a jail-based restoration of competency pilot program as
described by this article, the department shall] develop and
implement a jail-based restoration of competency [the pilot]
program in any county [one or two counties] in this state that
chooses [choose] to participate in the [pilot] program. In
developing the [pilot] program, the commission [department] shall
coordinate and allow for input from a [each] participating county.
(b) The commission [department] shall contract with a
provider of jail-based competency restoration services to provide
services under a [the pilot] program implemented [if the department
develops a pilot program] under this article. The commission may
contract with a different provider for each program.
(c) The executive [Not later than November 1, 2013, the]
commissioner [of the department] shall adopt rules as necessary to
implement a [the pilot] program[. In adopting rules] under this
article, including rules that [the commissioner shall] specify the
types of information the commission [department] must collect
[during the operation of the pilot program] for use in evaluating a
[the outcome of the pilot] program.
(f) To contract with the commission [department] under
Subsection (b), a provider of jail-based competency restoration
services must demonstrate to the commission [department] that:
(1) the provider:
(A) has previously provided jail-based
competency restoration services for one or more years and is
certified by a nationwide nonprofit organization that accredits
behavioral health care organizations and programs; [or]
(B) is a local mental health authority in good
standing with the commission [that has previously provided
competency restoration services]; or
(C) operates under a contract with a local mental
health authority in good standing with the commission; and
(2) the provider's jail-based restoration of
competency [restoration] program:
(A) provides clinical treatment and competency
restoration through the use of [uses] a multidisciplinary treatment
team [to provide clinical treatment that is:
[(i) directed toward the specific objective
of restoring the defendant's competency to stand trial; and
[(ii) similar to the clinical treatment
provided as part of a competency restoration program at an
inpatient mental health facility];
(B) employs or contracts for the services of at
least one psychiatrist or psychologist;
(C) provides jail-based competency restoration
services through trained and experienced staff [assigns staff
members to defendants participating in the program at an average
ratio not lower than 3.7 to 1]; [and]
(D) ensures the safety of participants [provides
weekly treatment hours commensurate to the treatment hours provided
as part of a competency restoration program at an inpatient mental
health facility];
(E) operates in the jail in a designated space
that is separate from the space used for the general population of
the jail;
(F) provides general health care, mental health
treatment, and substance use disorder treatment to participants, as
necessary, for restoration of competency; and
(G) supplies clinically appropriate psychoactive
medications for purposes of administering court-ordered medication
to participants as applicable and in accordance with Article
46B.086 of this code and Section 574.106, Health and Safety Code
[(3) the provider is certified by a nationwide
nonprofit organization that accredits health care organizations
and programs, such as the Joint Commission on Health Care Staffing
Services, or the provider is a local mental health authority in good
standing with the department; and
[(4) the provider has a demonstrated history of
successful jail-based competency restoration outcomes or, if the
provider is a local mental health authority, a demonstrated history
of successful competency restoration outcomes].
(g) A contract under Subsection (b) must require a [the]
designated provider to collect and submit to the commission
[department] the information specified by rules adopted under
Subsection (c).
(i) The psychiatrist or psychologist for the provider shall
conduct at least two full psychiatric or psychological evaluations
of the defendant during the period the defendant receives
competency restoration services in the jail. The psychiatrist or
psychologist must conduct one evaluation not later than the 21st
day and one evaluation not later than the 55th day after the date
the defendant begins to participate in the [pilot] program. The
psychiatrist or psychologist shall submit to the court a report
concerning each evaluation required under this subsection.
(j) If at any time during a defendant's participation in a
[the jail-based restoration of competency pilot] program
implemented under this article the psychiatrist or psychologist for
the provider determines that the defendant has attained competency
to stand trial:
(1) the psychiatrist or psychologist for the provider
shall promptly issue and send to the court a report demonstrating
that fact; and
(2) the court shall consider that report as the report
of an expert stating an opinion that the defendant has been restored
to competency for purposes of Article 46B.0755(a) or (b).
(k) If at any time during a defendant's participation in a
[the jail-based restoration of competency pilot] program
implemented under this article the psychiatrist or psychologist for
the provider determines that the defendant's competency to stand
trial is unlikely to be restored in the foreseeable future:
(1) the psychiatrist or psychologist for the provider
shall promptly issue and send to the court a report demonstrating
that fact; and
(2) the court shall:
(A) proceed under Subchapter E or F and order the
transfer of the defendant, without unnecessary delay, to the first
available facility that is appropriate for that defendant, as
provided under Subchapter E or F, as applicable; or
(B) release the defendant on bail as permitted
under Chapter 17.
(l) If the psychiatrist or psychologist for the provider
determines that a defendant ordered to participate in a [the pilot]
program implemented under this article has not been restored to
competency by the end of the 60th day after the date the defendant
began to participate in the [pilot] program:
(1) for a defendant charged with a felony, the
defendant shall be transferred, without unnecessary delay and for
the remainder of the period prescribed by Article 46B.073(b), to
the first available facility that is appropriate for that defendant
as provided by Article 46B.073(c) or (d); and
(2) for a defendant charged with a misdemeanor, the
court may:
(A) order a single extension under Article
46B.080 and, notwithstanding Article 46B.073(b-1), the transfer of
the defendant without unnecessary delay to the appropriate mental
health facility or residential care facility as provided by Article
46B.073(d) for the remainder of the period under the extension;
(B) proceed under Subchapter E or F;
(C) release the defendant on bail as permitted
under Chapter 17; or
(D) dismiss the charges in accordance with
Article 46B.010.
(m) Unless otherwise provided by this article, the
provisions of this chapter, including the maximum periods
prescribed by Article 46B.0095, apply to a defendant receiving
competency restoration services, including competency restoration
education services, under a [the pilot] program implemented under
this article in the same manner as those provisions apply to any
other defendant who is subject to proceedings under this chapter.
SECTION 30. Section 614.0032(b), Health and Safety Code, is
amended to read as follows:
(b) The office shall:
(1) with the special assistance of committee members
appointed under Section 614.002(b)(1):
(A) review examinations to determine the
competency of defendants in criminal cases to stand trial and
examinations to determine the fitness of children to proceed with
respect to adjudications of delinquent conduct or conduct
indicating a need for supervision; and
(B) periodically report to the legislature and
the court of criminal appeals findings made as a result of the
review described by Paragraph (A); [and]
(2) approve and make generally available in electronic
format a standard form for use by experts in reporting competency
examination results under Chapter 46B, Code of Criminal Procedure;
and
(3) approve and make generally available in electronic
format a standard form for use by experts in reporting mental health
assessment results under Article 16.22, Code of Criminal Procedure.
SECTION 31. Articles 46B.090(h), (n), and (o), Code of
Criminal Procedure, are repealed.
SECTION 32. The changes in law made by this Act apply only
to a defendant charged with an offense committed on or after the
effective date of this Act. A defendant charged with an offense
committed before the effective date of this Act is governed by the
law in effect on the date the offense was committed, and the former
law is continued in effect for that purpose. For purposes of this
section, an offense was committed before the effective date of this
Act if any element of the offense occurred before that date.
SECTION 33. This Act takes effect September 1, 2017.