85R12180 MAW-F
By: Ortega H.B. No. 3638
A BILL TO BE ENTITLED
AN ACT
relating to the identification and assessment of defendants
suspected of having mental illness or intellectual disability.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. 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) This article applies only to a defendant who is
committed to a sheriff's custody after arrest for an offense that
was committed in the sheriff's jurisdiction and that is punishable
as a Class B misdemeanor or any higher category of offense.
(a-1)(1) [(a)(1)] Not later than 72 hours after receiving
credible information that may establish reasonable cause to believe
that a defendant described by Subsection (a) [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 shall provide
written or electronic notice of the information to the magistrate.
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 information obtained from any
previous assessment of the defendant; and
(B) provide to the magistrate a written
assessment of the information collected under Paragraph (A).
(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 intellectual and developmental disability [mental
retardation] 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 (d) [(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 mental health facility determined to be
appropriate by the local mental health or intellectual and
developmental disability [mental retardation] authority for a
reasonable period not to exceed 21 days. The magistrate may order a
defendant to a facility operated by the Department of State Health
Services or the Health and Human Services Commission [Department of
Aging and Disability Services] for examination only on request of
the local mental health or intellectual and developmental
disability [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
Health and Human Services Commission [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 shall reimburse the
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) A written assessment of the information collected under
Subsection (a-1)(1)(A) [(a)(1)(A)] shall be provided to the
magistrate not later than the 30th day after the date of any order
issued under Subsection (a-1) [(a)] 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:
(1) the defense counsel;
(2) [,] the prosecuting attorney;
(3) [, and] the trial court;
(4) the sheriff or other person responsible for the
defendant's medical records while the defendant is confined in
county jail; and
(5) as applicable:
(A) any personal bond office established under
Article 17.42 for the county in which the defendant is being
confined; or
(B) the director of the office or department that
is responsible for supervising the defendant while the defendant is
released on bail and receiving mental health or intellectual
disability services as a condition of bail.
(c) A [The] written assessment under this article must
include a description of the procedures used in the collection of
information under Subsection (a-1)(1)(A) [(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) recommended treatment.
(d) [(c)] After the trial court receives the applicable
expert's written assessment relating to the defendant under
Subsection (b) or elects to use the results of a previous
determination as described by Subsection (a-1)(2) [(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;
(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.
(e) [(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; or
(2) ordering an examination regarding the defendant's
competency to stand trial.
SECTION 2. The change in law made by this Act applies only
to a person who is arrested on or after the effective date of this
Act. A person arrested before the effective date of this Act is
governed by the law in effect on the date the person was arrested,
and the former law is continued in effect for that purpose.
SECTION 3. This Act takes effect September 1, 2017.