By: Perry S.B. No. 1183
(In the Senate - Filed March 1, 2017; March 9, 2017, read
first time and referred to Committee on Criminal Justice;
April 20, 2017, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 7, Nays 0; April 20, 2017,
sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 1183 By: Perry
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 and
to the period for which a person may be committed to receive certain
temporary mental health services.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. 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 2. Article 46B.001, Code of Criminal Procedure, is
amended by adding Subdivision (9) to read as follows:
(9) "Competency restoration" means the treatment or
education process for restoring a person's ability to consult with
the person's attorney with a reasonable degree of rational
understanding, including a rational and factual understanding of
the court proceedings and charges against the person.
SECTION 3. 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 4. 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
competency restoration program, ordered to participate in an
outpatient competency restoration or treatment program, or
subjected to any combination of [both] inpatient treatment, [and]
outpatient competency restoration or treatment program
participation, or jail-based competency restoration under this
chapter 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
competency restoration or 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 competency restoration or 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 may be 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 competency restoration or treatment
program participation is entered under this chapter; and
(2) in addition to any inpatient or outpatient
competency restoration [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 competency restoration
program;
(B) the defendant's release on bail to
participate in an outpatient competency restoration or 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 competency restoration or treatment program
participation is entered under this chapter.
SECTION 5. 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
competency restoration program, participate in an outpatient
competency restoration or treatment program, or be subjected to any
combination of [both] inpatient treatment, [and] outpatient
competency restoration or treatment program participation, or
jail-based competency restoration under this chapter, 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 6. 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 7. 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, the court shall:
(1) if the defendant is charged with an offense
punishable as a Class B misdemeanor:
(A) [commit the defendant to a facility under
Article 46B.073; or
[(2)] release the defendant on bail under Article
46B.0711; or
(B) commit the defendant to:
(i) a jail-based competency restoration
program under Article 46B.073(e); or
(ii) a mental health facility or
residential care facility under Article 46B.073(f); or
(2) if the defendant is charged with an offense
punishable as a Class A misdemeanor or any higher category of
offense:
(A) release the defendant on bail under Article
46B.072; or
(B) commit the defendant to a facility or a
jail-based competency restoration program under Article 46B.073(c)
or (d).
SECTION 8. 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) This article applies only to a defendant who is subject to an
initial restoration period based on Article 46B.071.
(b) 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, and an appropriate outpatient competency
restoration program is available for the defendant, 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 competency restoration program for a period not to
exceed 60 days.
(c) Notwithstanding Subsection (b), the court may order a
defendant to participate in an outpatient competency restoration
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.
(d) An order issued under this article may require the
defendant to participate in:
(1) as appropriate, an outpatient competency
restoration program administered by a community center or an
outpatient competency restoration program administered by any
other entity that provides competency restoration services; and
(2) an appropriate prescribed regimen of medical,
psychiatric, or psychological care or treatment, including care or
treatment involving the administration of psychoactive medication,
including those required under Article 46B.086.
SECTION 9. The heading to Article 46B.072, Code of Criminal
Procedure, is amended to read as follows:
Art. 46B.072. RELEASE ON BAIL FOR FELONY OR CLASS A
MISDEMEANOR.
SECTION 10. Articles 46B.072(a-1), (b), (c), and (d), Code
of Criminal Procedure, are amended 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 charged with an
offense punishable as a felony or a Class A 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, and [if] an appropriate
outpatient competency restoration [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.
(b) The court shall order a defendant released on bail under
Subsection (a-1) to participate in an outpatient competency
restoration [treatment] program for a period not to exceed 120
days.
(c) Notwithstanding Subsection (a-1), the court may order a
defendant to participate in an outpatient competency restoration
[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.
(d) An order issued under this article may require the
defendant to participate in:
(1) as appropriate, an outpatient competency
restoration [treatment] program administered by a community center
or an outpatient competency restoration [treatment] program
administered by any other entity that provides outpatient
competency restoration services; and
(2) an appropriate prescribed regimen of medical,
psychiatric, or psychological care or treatment, including care or
treatment involving the administration of psychoactive medication,
including those required under Article 46B.086.
SECTION 11. Article 46B.073, Code of Criminal Procedure, is
amended by amending Subsections (b), (c), (d), and (e) and adding
Subsection (f) to read as follows:
(b) For purposes of further examination and competency
restoration services with [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 competency restoration program for the applicable
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.
(c) If the defendant is charged with an offense listed in
Article 17.032(a), other than an offense under Section 22.01(a)(1),
Penal Code [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 competency
restoration services 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.
(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 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 or to a jail-based competency
restoration program. A defendant may be committed to a jail-based
competency restoration program only if the program provider
determines the defendant will begin to receive competency
restoration services within 72 hours of arriving at the program.
(e) Except as provided by Subsection (f), a defendant
charged with an offense punishable as a Class B misdemeanor may be
committed under this subchapter only to a jail-based competency
restoration program.
(f) A defendant charged with an offense punishable as a
Class B misdemeanor may be committed to a mental health facility or
residential care facility described by Subsection (d) only if a
jail-based competency restoration program is not available
[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 12. Article 46B.074(a), Code of Criminal Procedure,
is amended to read as follows:
(a) A defendant may be committed to a jail-based competency
restoration 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 13. 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 services.
SECTION 14. 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 15. 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 16. 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 competency restoration program to which the
defendant is committed or the outpatient competency restoration
[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
competency restoration program, the facility or program shall
report to the court at least once during the commitment period.
(c) If the defendant is released to an outpatient competency
restoration [a treatment] program [not provided by an inpatient
mental health facility or a residential care facility], the
[treatment] program shall report to the court:
(1) not later than the 14th day after the date on which
the defendant's competency restoration services begin [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 17. 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 competency restoration program, or the
provider of the outpatient competency restoration [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 18. 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 competency restoration
program, or the provider of the outpatient competency restoration
[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 or jail-based competency
restoration [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 is clinically ready and can be
safely transferred to a competency restoration program for
education services but has not yet 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.
(b-1) The outpatient competency restoration program
provider shall promptly notify the court when the program provider
believes that:
(1) the defendant has attained competency to stand
trial; or
(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),
[or] (b), or (b-1), 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 or transfer
under this chapter and including a list of the types and dosages of
medications prescribed for the defendant while the defendant was
receiving competency restoration services in the facility or
through [participating in] the [outpatient treatment] program. The
[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 copies of a
report based on notice under this article, other than notice under
Subsection (b)(1), to enable any objection to the findings of the
report to be made in a timely manner as required under Article
46B.084(a-1).
(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 19. 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 20. Subchapter D, Chapter 46B, Code of Criminal
Procedure, is amended by adding Articles 46B.0805 and 46B.0825 to
read as follows:
Art. 46B.0805. COMPETENCY RESTORATION EDUCATION SERVICES.
(a) 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 competency restoration program or an outpatient
competency restoration program, as appropriate and if available.
(b) If a defendant for whom an order is entered under
Subsection (a) was committed for competency restoration to a
facility other than a jail-based competency restoration program,
the court shall send a copy of that order to:
(1) the sheriff of the county in which the court is
located;
(2) the head of the facility to which the defendant was
committed for competency restoration; and
(3) the local mental health authority or local
intellectual and developmental disability authority, as
appropriate.
(c) As soon as practicable but not later than the 10th day
after the date of receipt of a copy of an order under Subsection
(b)(2), the applicable facility shall discharge the defendant into
the care of the sheriff of the county in which the court is located.
The sheriff shall transport the defendant to the jail-based
competency restoration program or outpatient competency
restoration program, as appropriate.
(d) A jail-based competency restoration program or
outpatient competency restoration 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.0825. ADMINISTRATION OF MEDICATION WHILE IN
CUSTODY OF SHERIFF. (a) A sheriff having custody of a defendant
for transportation as required by Article 46B.075, 46B.0805, or
46B.082 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.
(b) To the extent funds are appropriated for that purpose, a
sheriff is entitled to reimbursement from the state for providing
the medication required by Subsection (a).
(c) If the sheriff determines that funds are not available
from the state to reimburse the sheriff as provided by Subsection
(b), the sheriff is not required to comply with Subsection (a).
SECTION 21. 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), (b)(3), or (b-1) [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 22. 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 23. 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), (b)(3), or
(b-1) [46B.079] a defendant committed to a facility or jail-based
competency restoration program or ordered to participate in an
outpatient competency restoration [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 competency restoration
program to which the defendant is committed or the provider of the
outpatient competency restoration [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 or program provider, 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 24. 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 competency
restoration program provider, or the outpatient competency
restoration [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 competency
restoration program provider, or the outpatient competency
restoration [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 25. Article 46B.084(a-1)(1), Code of Criminal
Procedure, is amended to read as follows:
(1) Following the defendant's return 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 only on the most recent report that is filed under Article
46B.079(c) and based on notice under that article, other than
notice under Subsection (b)(1) of that article, and on other
medical information or personal history information relating to the
defendant. A party may object in writing or in open court to the
findings of the most recent report not later than the 15th day after
the date on which the court received the applicable notice
[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 the applicable notice [notification] under
Article 46B.079, or not later than the fifth day after the date of
the defendant's return to court, whichever occurs first, 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 26. 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 competency
restoration program, or an outpatient competency restoration
[treatment] program;
(B) is committed to an inpatient mental health
facility, [or] a residential care facility, or a jail-based
competency restoration 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 (b) 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 or jail-based
competency restoration program that employs or contracts with a
licensed psychiatrist, an inpatient mental health facility, a
residential care facility, or an outpatient competency restoration
[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 the [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 competency restoration [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 27. Subchapter D, Chapter 46B, Code of Criminal
Procedure, is amended by adding Article 46B.091 to read as follows:
Art. 46B.091. JAIL-BASED COMPETENCY RESTORATION PROGRAM
IMPLEMENTED BY COUNTY. (a) In this article:
(1) "Commission" means the Health and Human Services
Commission.
(2) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(b) A county or counties jointly may develop and implement a
jail-based competency restoration program.
(c) A county that implements a program under this article
shall contract with a provider of jail-based competency restoration
services that is a local mental health authority or local
behavioral health authority that is in good standing with the
commission, which may include an authority that is in good standing
with the commission and subcontracts with a provider of jail-based
competency restoration services.
(d) A jail-based competency restoration program must:
(1) provide jail-based competency restoration
services through the use of a multidisciplinary treatment team that
is:
(A) directed toward the specific objective of
restoring the defendant's competency to stand trial; and
(B) similar to other competency restoration
programs;
(2) employ or contract for the services of at least one
psychiatrist;
(3) provide jail-based competency restoration
services through licensed or qualified mental health
professionals;
(4) provide weekly competency restoration hours
commensurate to the hours provided as part of a competency
restoration program at an inpatient mental health facility;
(5) operate in the jail in a designated space that is
separate from the space used for the general population of the jail;
(6) ensure coordination of general health care;
(7) provide mental health treatment and substance use
disorder treatment to defendants, as necessary, for competency
restoration; and
(8) supply clinically appropriate psychoactive
medications for purposes of administering court-ordered medication
to defendants as applicable and in accordance with Article 46B.086
of this code or Section 574.106, Health and Safety Code.
(e) The executive commissioner shall adopt rules as
necessary for a county to develop and implement a program under this
article. The commission shall, as part of the rulemaking process,
establish contract monitoring and oversight requirements for a
local mental health authority or local behavioral health authority
that contracts with a county to provide jail-based competency
restoration services under this article. The contract monitoring
and oversight requirements must be consistent with local mental
health authority or local behavioral health authority performance
contract monitoring and oversight requirements, as applicable.
(f) The commission may inspect on behalf of the state any
aspect of a program implemented under this article.
(g) A 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 is committed to the program. The psychiatrist or
psychologist shall submit to the court a report concerning each
evaluation required under this subsection.
(h) If at any time during a defendant's commitment to a
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).
(i) If at any time during a defendant's commitment to a
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.
(j) If the psychiatrist or psychologist for the provider
determines that a defendant committed to a program implemented
under this article has not been restored to competency by the end of
the 60th day after the date the defendant was committed to the
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 Articles 46B.073(e) and (f), 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.
(k) 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 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.
(l) This article does not affect the responsibility of a
county to ensure the safety of a defendant who is committed to the
program and to provide the same adequate care to the defendant as is
provided to other inmates of the jail in which the defendant is
located.
SECTION 28. Section 574.034(g), Health and Safety Code, is
amended to read as follows:
(g) An order for temporary inpatient or outpatient mental
health services shall state that treatment is authorized for not
longer than 45 [90] days, except that the order may specify a period
not to exceed 90 days if the judge finds that the longer period is
necessary. [The order may not specify a shorter period.]
SECTION 29. 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.
SECTION 30. The following provisions are repealed:
(1) Article 46B.026(c), Code of Criminal Procedure;
(2) Article 46B.090(o), Code of Criminal Procedure;
and
(3) Section 614.0032(c), Health and Safety Code.
SECTION 31. Not later than November 1, 2017, the executive
commissioner of the Health and Human Services Commission shall
adopt the rules described by Article 46B.091(e), Code of Criminal
Procedure, as added by this Act.
SECTION 32. (a) Except as provided by Subsection (b) of
this section, 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
subsection, an offense was committed before the effective date of
this Act if any element of the offense occurred before that date.
(b) The change in law made by this Act to Section
574.034(g), Health and Safety Code, applies only to an order for
court-ordered temporary mental health services that is issued on or
after the effective date of this Act. An order issued before the
effective date of this Act is governed by the law in effect on the
date the order was issued, and the former law is continued in effect
for that purpose.
SECTION 33. This Act takes effect September 1, 2017.
* * * * *