By: Price, et al. (Senate Sponsor - Zaffirini) H.B. No. 601
(In the Senate - Received from the House April 11, 2019;
April 15, 2019, read first time and referred to Committee on
Criminal Justice; May 16, 2019, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 5, Nays 0;
May 16, 2019, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR H.B. No. 601 By: Whitmire
A BILL TO BE ENTITLED
AN ACT
relating to procedures and reporting requirements 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 16.22(a), Code of Criminal Procedure, as
amended by Chapters 748 (S.B. 1326) and 950 (S.B. 1849), Acts of the
85th Legislature, Regular Session, 2017, is reenacted and amended
to read as follows:
(a)(1) Not later than 12 hours after the sheriff or
municipal jailer having custody of a defendant for an offense
punishable as a Class B misdemeanor or any higher category of
offense receives credible information that may establish
reasonable cause to believe that the defendant has a mental illness
or is a person with an intellectual disability, the sheriff or
municipal jailer shall provide written or electronic notice to the
magistrate. The notice must include any information related to the
sheriff's or municipal jailer'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, the
magistrate, except as provided by Subdivision (2), shall order the
service provider that contracts with the jail to provide mental
health or intellectual and developmental disability services, the
local mental health authority, the local intellectual and
developmental disability authority, or another qualified mental
health or intellectual and developmental disability expert to:
(A) interview the defendant if the defendant has
not previously been interviewed by a qualified mental health or
intellectual and developmental disability expert on or after the
date the defendant was arrested for the offense for which the
defendant is in custody and otherwise 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 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 or service; and
(B) provide to the magistrate a written report
[assessment] of an interview described by Paragraph (A) and the
other information collected under that paragraph [Paragraph (A)] on
the form approved by the Texas Correctional Office on Offenders
with Medical or Mental Impairments under Section 614.0032(c)
[614.0032(b)], Health and Safety Code.
(2) The magistrate is not required to order the
interview and collection of other 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 by the service provider
that contracts with the jail to provide mental health or
intellectual and developmental disability services, the local
mental health authority, the local intellectual and developmental
disability authority, or another mental health or intellectual and
developmental disability 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
interview and collection of other 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 determined to be appropriate by the local mental
health authority or local intellectual and developmental
disability authority, for a reasonable period not to exceed 72
hours. If applicable, the county in which the committing court is
located shall reimburse the local mental health authority or local
intellectual and developmental disability authority 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.
SECTION 2. Article 16.22, Code of Criminal Procedure, is
amended by adding Subsections (a-1), (a-2), (a-3), (a-4), and (f)
and amending Subsections (b), (b-1), (c), (d), and (e) to read as
follows:
(a-1) If a magistrate orders a local mental health
authority, a local intellectual and developmental disability
authority, or another qualified mental health or intellectual and
developmental disability expert to conduct an interview or collect
information under Subsection (a)(1), the commissioners court for
the county in which the magistrate is located shall reimburse the
local mental health authority, local intellectual and
developmental disability authority, or qualified mental health or
intellectual and developmental disability expert for the cost of
performing those duties in the amount provided by the fee schedule
adopted under Subsection (a-2) or in the amount determined by the
judge under Subsection (a-3), as applicable.
(a-2) The commissioners court for a county may adopt a fee
schedule to pay for the costs to conduct an interview and collect
information under Subsection (a)(1). In developing the fee
schedule, the commissioners court shall consider the generally
accepted reasonable cost in that county of performing the duties
described by Subsection (a)(1). A fee schedule described by this
subsection must be adopted in a public hearing and must be
periodically reviewed by the commissioners court.
(a-3) If the cost of performing the duties described by
Subsection (a)(1) exceeds the amount provided by the applicable fee
schedule or if the commissioners court for the applicable county
has not adopted a fee schedule, the authority or expert who
performed the duties may request that the judge who has
jurisdiction over the underlying offense determine the reasonable
amount for which the authority or expert is entitled to be
reimbursed under Subsection (a-1). The amount determined under
this subsection may not be less than the amount provided by the fee
schedule, if applicable. The judge shall determine the amount not
later than the 45th day after the date the request is made. The
judge is not required to hold a hearing before making a
determination under this subsection.
(a-4) An interview under Subsection (a)(1) may be conducted
in person in the jail, by telephone, or through a telemedicine
medical service or telehealth service.
(b) Except as otherwise permitted by the magistrate for good
cause shown, a written report [assessment] of an interview
described by Subsection (a)(1)(A) and the other information
collected under that paragraph [Subsection (a)(1)(A)] shall be
provided to the magistrate:
(1) for a defendant held in custody, not later than 96
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 order was issued under
Subsection (a).
(b-1) The magistrate shall provide copies of the written
report [assessment] to the defense counsel, the attorney
representing the state, and the trial court. The written report
[assessment] must include a description of the procedures used in
the interview and collection of other 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;
(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 report [assessment] relating to the defendant under
Subsection (b-1) 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 and developmental disability services, including
proceedings related to the defendant's receipt of outpatient mental
health services under Section 574.034, Health and Safety Code;
(3) consider the written report [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 interview and collection of other
information regarding the defendant as described by this article:
(1) releasing a defendant who has a mental illness or
is a person with an intellectual disability 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 Texas Judicial Council shall adopt rules to require
the reporting of [The magistrate shall submit to the Office of
Court Administration of the Texas Judicial System on a monthly
basis] the number of written reports [assessments] provided to a
[the] court under Subsection (a)(1)(B). The rules must require
submission of the reports to the Office of Court Administration of
the Texas Judicial System on a monthly basis.
(f) A written report submitted to a magistrate under
Subsection (a)(1)(B) is confidential and not subject to disclosure
under Chapter 552, Government Code, but may be used or disclosed as
provided by this article.
SECTION 3. Articles 17.032(b) and (c), Code of Criminal
Procedure, as amended by Chapters 748 (S.B. 1326) and 950 (S.B.
1849), Acts of the 85th Legislature, Regular Session, 2017, are
reenacted and amended to read as follows:
(b) Notwithstanding Article 17.03(b), or a bond schedule
adopted or a standing order entered by a judge, a magistrate shall
release a defendant on personal bond unless good cause is shown
otherwise if:
(1) the defendant is not charged with and has not been
previously convicted of a violent offense;
(2) the defendant is examined by the service provider
that contracts with the jail to provide mental health or
intellectual and developmental disability services, the local
mental health authority, the local intellectual and developmental
disability authority, or another qualified mental health or
intellectual and developmental disability expert under Article
16.22;
(3) the applicable expert, in a written report
[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 and is
nonetheless competent to stand trial; and
(B) recommends mental health treatment or
intellectual and developmental disability services for the
defendant, as applicable;
(4) the magistrate determines, in consultation with
the local mental health authority or local intellectual and
developmental disability authority, that appropriate
community-based mental health or intellectual and developmental
disability services for the defendant are available in accordance
with Section 534.053 or 534.103, Health and Safety Code, or through
another mental health or intellectual and developmental disability
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 or services, shall require as a condition of
release on personal bond under this article that the defendant
submit to outpatient or inpatient mental health treatment or
intellectual and developmental disability services as recommended
by the service provider that contracts with the jail to provide
mental health or intellectual and developmental disability
services, the local mental health authority, the local intellectual
and developmental disability authority, or another qualified
mental health or intellectual and developmental disability expert
if the defendant's:
(1) mental illness or intellectual disability is
chronic in nature; or
(2) ability to function independently will continue to
deteriorate if the defendant does not receive the recommended
treatment or services [is not treated].
SECTION 4. Section 8(c), Article 42.09, Code of Criminal
Procedure, is amended to read as follows:
(c) A county that transfers a defendant to the Texas
Department of Criminal Justice under this article shall also
deliver to the designated officer any presentence or postsentence
investigation report, revocation report, psychological or
psychiatric evaluation of the defendant, including a written report
provided to a court under Article 16.22(a)(1)(B) or an evaluation
prepared for the juvenile court before transferring the defendant
to criminal court and contained in the criminal prosecutor's file,
and available social or psychological background information
relating to the defendant and may deliver to the designated officer
any additional information upon which the judge or jury bases the
punishment decision.
SECTION 5. Section 511.0085(a), Government Code, is amended
to read as follows:
(a) The commission shall develop a comprehensive set of risk
factors to use in assessing the overall risk level of each jail
under the commission's jurisdiction. The set of risk factors must
include:
(1) a history of the jail's compliance with state law
and commission rules, standards, and procedures;
(2) the population of the jail;
(3) the number and nature of complaints regarding the
jail, including complaints regarding a violation of any required
ratio of correctional officers to inmates;
(4) problems with the jail's internal grievance
procedures;
(5) available mental and medical health reports
relating to inmates in the jail, including reports relating to
infectious disease or pregnant inmates;
(6) recent turnover among sheriffs and jail staff;
(7) inmate escapes from the jail;
(8) the number and nature of inmate deaths at the jail,
including the results of the investigations of those deaths; and
(9) whether the jail is in compliance with commission
rules, standards developed by the Texas Correctional Office on
Offenders with Medical or Mental Impairments, and the requirements
of Article 16.22, Code of Criminal Procedure, regarding screening
and assessment protocols for the early identification of and
reports concerning persons with mental illness or an intellectual
disability.
SECTION 6. The heading to Section 614.0032, Health and
Safety Code, is amended to read as follows:
Sec. 614.0032. SPECIAL DUTIES RELATED TO MEDICALLY
RECOMMENDED SUPERVISION; DETERMINATIONS REGARDING MENTAL ILLNESS
OR INTELLECTUAL DISABILITY [COMPETENCY OR FITNESS TO PROCEED].
SECTION 7. Section 614.0032, Health and Safety Code, is
amended by adding Subsection (c) to read as follows:
(c) The office shall approve and make generally available in
electronic format a standard form for use by a person providing a
written report under Article 16.22(a)(1)(B), Code of Criminal
Procedure.
SECTION 8. 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 9. To the extent of any conflict, this Act prevails
over another Act of the 86th Legislature, Regular Session, 2019,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 10. This Act takes effect September 1, 2019.
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