By: Zaffirini S.B. No. 1739
A BILL TO BE ENTITLED
AN ACT
relating to procedures regarding defendants who are or may be
persons with a mental illness or intellectual disability.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 16.22(a)(2), Code of Criminal Procedure,
is amended to read as follows:
(2) The magistrate is not required to order the
interview and collection of other information under Subdivision (1)
if the defendant is no longer in custody or 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).
SECTION 2. Article 17.04, Code of Criminal Procedure, is
amended to read as follows:
Art. 17.04. REQUISITES OF A PERSONAL BOND. (a) A personal
bond is sufficient if it includes the requisites of a bail bond as
set out in Article 17.08, except that no sureties are required. In
addition, a personal bond shall contain:
(1) the defendant's name, address, and place of
employment;
(2) identification information, including the
defendant's:
(A) date and place of birth;
(B) height, weight, and color of hair and eyes;
(C) driver's license number and state of
issuance, if any; and
(D) nearest relative's name and address, if any;
and
(3) except as provided by Subsection (b), the
following oath sworn and signed by the defendant:
"I swear that I will appear before (the court or magistrate)
at (address, city, county) Texas, on the (date), at the hour of
(time, a.m. or p.m.) or upon notice by the court, or pay to the court
the principal sum of (amount) plus all necessary and reasonable
expenses incurred in any arrest for failure to appear."
(b) A personal bond is not required to contain the oath
described by Subsection (a)(3) if:
(1) the magistrate makes a determination under Article
16.22 that the defendant has a mental illness or is a person with an
intellectual disability, including by using the results of a
previous determination under that article;
(2) the defendant is released on personal bond under
Article 17.032; or
(3) the defendant is found incompetent to stand trial
in accordance with Chapter 46B.
SECTION 3. Subchapter B, Chapter 45, Code of Criminal
Procedure, is amended by adding Article 45.0214 to read as follows:
Art. 45.0214. DEFENDANT WITH MENTAL ILLNESS, INTELLECTUAL
OR DEVELOPMENTAL DISABILITY, OR LACK OF CAPACITY. (a) In this
article:
(1) "Caregiver" means a person, including a guardian,
who is authorized by law, contract, or familial relationship to
provide care to another person.
(2) "Defendant" includes a child as defined by Article
45.058(h).
(b) On motion by the state, the defendant, or a person who
stands in a parental relation to the defendant or who acts as the
defendant's caregiver, or on the court's own motion, a justice or
judge shall determine whether probable cause exists to believe that
a defendant, including a defendant with a mental illness or an
intellectual or developmental disability:
(1) lacks the capacity to understand the proceedings
in criminal court or to assist in the defendant's own defense; and
(2) is unfit to proceed.
(c) If the court determines that probable cause exists for a
finding under Subsection (a), after providing notice to the state,
the court may dismiss the complaint.
(d) A dismissal of a complaint under Subsection (c) may be
appealed as provided by Article 44.01.
SECTION 4. Subchapter B, Chapter 45, Code of Criminal
Procedure, is amended by adding Article 45.0241 to read as follows:
Art. 45.0241. ACCEPTANCE OF PLEA OF GUILTY OR NOLO
CONTENDERE. Notwithstanding any other law, a justice or judge may
not accept a plea of guilty or plea of nolo contendere under Article
45.022 or 45.023(a) unless it appears that the defendant is
mentally competent and the plea is free and voluntary.
SECTION 5. Article 46B.009, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.009. TIME CREDITS. (a) A court sentencing a
person convicted of a criminal offense shall credit to the term of
the person's sentence each of the following periods for which the
person may be confined in a mental health facility, residential
care facility, or jail:
(1) any period of confinement that occurs pending a
determination under Subchapter C as to the defendant's competency
to stand trial; and
(2) any period of confinement that occurs between the
date of any initial determination of the defendant's incompetency
under that subchapter and the date the person is transported to jail
following a final judicial determination that the person has been
restored to competency.
(b) A court sentencing a person convicted of a criminal
offense shall credit to the term of the person's sentence any period
during which the person participated in an outpatient competency
restoration program.
SECTION 6. Articles 46B.0095(c) and (d), Code of Criminal
Procedure, are amended to read as follows:
(c) The cumulative period described by Subsection (a):
(1) begins on the later of:
(A) the date the initial order of commitment or
initial order for outpatient competency restoration or treatment
program participation is entered under this chapter; or
(B) the date competency restoration services
actually begin; and
(2) in addition to any inpatient or outpatient
competency restoration periods or program participation periods
described by Subsection (a), includes any time that, following the
entry of an order described by Subdivision (1)(A), 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 date the cumulative period begins as
described by Subsection (c) [initial order of commitment or initial
order for outpatient competency restoration or treatment program
participation is entered under this chapter].
SECTION 7. Article 46B.090, Code of Criminal Procedure, is
amended by amending Subsections (a-1), (b), (c), (f), (g), (i),
(j), (k), (l), (m), and (n) and adding Subsections (f-1), (l-1),
(l-2), and (o) to read as follows:
(a-1) If the legislature appropriates to the commission
[department] the funding necessary for the commission [department]
to operate a jail-based restoration of competency pilot program as
described by this article, the commission [department] shall
develop and implement the pilot program in one or two counties in
this state that choose to participate in the pilot program. In
developing the pilot program, the commission [department] shall
coordinate and allow for input from each participating county.
(b) The commission [department] shall contract with a
provider of jail-based competency restoration services to provide
services under the pilot program if the commission [department]
develops a pilot program under this article.
(c) The executive [Not later than November 1, 2013, the]
commissioner [of the department] shall adopt rules as necessary to
implement the pilot program. [In adopting rules under this article,
the commissioner shall specify the types of information the
department must collect during the operation of the pilot program
for use in evaluating 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 department that]:
(1) be [the provider:
[(A) has previously provided jail-based
competency restoration services for one or more years; or
[(B) 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 [that has previously provided
competency restoration services]; and
(2) contract with a county or counties to develop and
implement a jail-based competency restoration program.
(f-1) The [the] provider's jail-based competency
restoration program must:
(1) through the use of a multidisciplinary treatment
team, provide jail-based competency restoration services that are:
(A) [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
(B) [(ii)] similar to other [the clinical
treatment provided as part of a] competency restoration programs
[program at an inpatient mental health facility];
(2) employ [(B) employs] or contract [contracts] for
the services of at least one psychiatrist or psychologist;
(3) provide jail-based competency restoration
services through licensed or qualified mental health
professionals;
(4) provide [and (C) provides] weekly competency
restoration [treatment] hours commensurate to the [treatment]
hours provided as part of other [a] competency restoration programs
[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
[(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 the
designated provider to collect and submit to the commission
[department] the information specified by rules adopted under
Subsection (c).
(i) A [The] psychiatrist or psychologist for the provider
who has the qualifications described by Article 46B.022 shall
evaluate the defendant's competency and report to the court as
required by Article 46B.079 [conduct at least two full psychiatric
evaluations of the defendant during the period the defendant
receives competency restoration services in the jail. The
psychiatrist 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 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 the
jail-based restoration of competency pilot program 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 the
jail-based restoration of competency pilot program 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 the pilot
program has not been restored to competency by the end of the 60th
day after the date the defendant began to receive services in the
pilot program, the jail-based competency restoration program shall
continue to provide competency restoration services to the
defendant for the period authorized by this subchapter, including
any extension ordered under Article 46B.080, unless the jail-based
competency restoration program is notified that space at a facility
or outpatient competency restoration program appropriate for the
defendant is available and, as applicable:
(1) for a defendant charged with a felony, not less
than 45 days are remaining in the initial restoration period; or
(2) for a defendant charged with a felony or a
misdemeanor, an extension has been ordered under Article 46B.080
and not less than 45 days are remaining under the extension order.
(l-1) After receipt of a notice under Subsection (l), [:
[(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 the transfer of] the defendant shall be transferred
without unnecessary delay to the appropriate mental health
facility, [or] residential care facility, or outpatient competency
restoration program [as provided by Article 46B.073(d)] for the
remainder of the period permitted by this subchapter, including any
extension ordered under Article 46B.080. If the defendant is not
transferred, and if the psychiatrist or psychologist for the
provider determines that the defendant has not been restored to
competency by the end of the period authorized by this subchapter,
the defendant shall be returned to the court for further
proceedings. For a defendant charged with a misdemeanor, the court
may:
(1) [under the extension;
[(B)] proceed under Subchapter E or F;
(2) [(C)] release the defendant on bail as permitted
under Chapter 17; or
(3) [(D)] dismiss the charges in accordance with
Article 46B.010.
(l-2) The court retains authority to order the transfer of a
defendant who is subject to an order for jail-based competency
restoration services to an outpatient competency restoration
program if:
(1) the court determines that the defendant 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
(2) the other requirements of this subchapter relating
to an order for outpatient competency restoration services are met.
(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 the pilot program in the same manner as
those provisions apply to any other defendant who is subject to
proceedings under this chapter.
(n) If the commission [department] develops and implements
a jail-based restoration of competency pilot program under this
article, not later than December 1, 2021 [2018], the executive
commissioner [of the department] shall submit a report concerning
the pilot program to the presiding officers of the standing
committees of the senate and house of representatives having
primary jurisdiction over health and human services issues and over
criminal justice issues. The report must include the information
collected by the commission [department] during the pilot program
and the executive commissioner's evaluation of the outcome of the
program as of the date the report is submitted.
(o) This article expires September 1, 2022. After the
expiration of this article, a pilot program established under this
article may continue to operate subject to the requirements of
Article 46B.091.
SECTION 8. Article 46B.091, Code of Criminal Procedure, is
amended by amending Subsections (g) and (j) and adding Subsections
(j-1) and (m) to read as follows:
(g) A psychiatrist or psychologist for the provider who has
the qualifications described by Article 46B.022 shall evaluate the
defendant's competency and report to the court as required by
Article 46B.079 [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].
(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 began to receive services
in the program, the jail-based competency restoration program shall
continue to provide competency restoration services to the
defendant for the period authorized by this subchapter, including
any extension ordered under Article 46B.080, unless the jail-based
competency restoration program is notified that space at a facility
or outpatient competency restoration program appropriate for the
defendant is available and, as applicable:
(1) for a defendant charged with a felony, not less
than 45 days are remaining in the initial restoration period; or
(2) for a defendant charged with a felony or a
misdemeanor, an extension has been ordered under Article 46B.080
and not less than 45 days are remaining under the extension order.
(j-1) After receipt of a notice under Subsection (j), [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 shall be transferred without unnecessary
delay to the appropriate mental health facility, [or] residential
care facility, or outpatient competency restoration program [as
provided by Article 46B.073(d)] for the remainder of the period
permitted by this subchapter, including any extension ordered under
Article 46B.080. If the defendant is not transferred, and if the
psychiatrist or psychologist for the provider determines that the
defendant has not been restored to competency by the end of the
period authorized by this subchapter, the defendant shall be
returned to the court for further proceedings. For a defendant
charged with a misdemeanor, the court may: [under the extension;]
(1) [(B)] proceed under Subchapter E or F;
(2) [(C)] release the defendant on bail as permitted
under Chapter 17; or
(3) [(D)] dismiss the charges in accordance with
Article 46B.010.
(m) The court retains authority to order the transfer of a
defendant who is subject to an order for jail-based competency
restoration services to an outpatient competency restoration
program if:
(1) the court determines that the defendant 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
(2) the other requirements of this subchapter relating
to an order for outpatient competency restoration services are met.
SECTION 9. Subchapter E, Chapter 46B, Code of Criminal
Procedure, is amended by adding Article 46B.1055 to read as
follows:
Art. 46B.1055. MODIFICATION OF ORDER FOLLOWING INPATIENT
CIVIL COMMITMENT PLACEMENT. (a) This article applies to a
defendant who has been transferred under Article 46B.105 from a
maximum security unit to any facility other than a maximum security
unit.
(b) The defendant, the head of the facility to which the
defendant is committed, or the attorney representing the state may
request that the court modify an order for inpatient treatment or
residential care to order the defendant to participate in an
outpatient treatment program.
(c) If the head of the facility to which the defendant is
committed makes a request under Subsection (b), not later than the
14th day after the date of the request the court shall hold a
hearing to determine whether the court should modify the order for
inpatient treatment or residential care.
(d) If the defendant or the attorney representing the state
makes a request under Subsection (b), not later than the 14th day
after the date of the request the court shall grant the request,
deny the request, or hold a hearing on the request to determine
whether the court should modify the order for inpatient treatment
or residential care. A court is not required to hold a hearing under
this subsection unless the request and any supporting materials
provided to the court provide a basis for believing modification of
the order may be appropriate.
(e) On receipt of a request to modify an order under
Subsection (b), the court shall require the local mental health
authority or local behavioral health authority to submit to the
court, before any hearing is held under this article, a statement
regarding whether treatment and supervision for the defendant can
be safely and effectively provided on an outpatient basis and
whether appropriate outpatient mental health services are
available to the defendant.
(f) If the head of the facility to which the defendant is
committed believes that the defendant is a person with mental
illness who meets the criteria for court-ordered outpatient mental
health services under Subtitle C, Title 7, Health and Safety Code,
the head of the facility shall submit to the court before the
hearing a certificate of medical examination for mental illness
stating that the defendant meets the criteria for court-ordered
outpatient mental health services.
(g) If a request under Subsection (b) is made by a defendant
before the 91st day after the date the court makes a determination
on a previous request under that subsection, the court is not
required to act on the request until the earlier of:
(1) the expiration of the current order for inpatient
treatment or residential care; or
(2) the 91st day after the date of the court's previous
determination.
(h) Proceedings for commitment of the defendant to a
court-ordered outpatient treatment program are governed by
Subtitle C, Title 7, Health and Safety Code, to the extent that
Subtitle C applies and does not conflict with this chapter, except
that the criminal court shall conduct the proceedings regardless of
whether the criminal court is also the county court.
(i) The court shall rule on a request made under Subsection
(b) as soon as practicable after a hearing on the request, but not
later than the 14th day after the date of the request.
(j) An outpatient treatment program may not refuse to accept
a placement ordered under this article on the grounds that criminal
charges against the defendant are pending.
SECTION 10. Article 46C.102(a), Code of Criminal Procedure,
is amended to read as follows:
(a) The court may appoint qualified psychiatrists or
psychologists as experts under this chapter. To qualify for
appointment under this subchapter as an expert, a psychiatrist or
psychologist must:
(1) as appropriate, be a physician licensed in this
state or be a psychologist licensed in this state who has a doctoral
degree in psychology; and
(2) have the following certification [or experience]
or training:
(A) as appropriate, certification by:
(i) the American Board of Psychiatry and
Neurology with added or special qualifications in forensic
psychiatry; or
(ii) the American Board of Professional
Psychology in forensic psychology; or
(B) [experience or] training consisting of:
(i) at least 24 hours of specialized
forensic training relating to incompetency or insanity
evaluations; and
(ii) at least [five years of experience in
performing criminal forensic evaluations for courts; and
[(iii)] eight [or more] hours of continuing education
relating to forensic evaluations, completed in the 12 months
preceding the appointment [and documented with the court].
SECTION 11. Section 511.009(d), Government Code, is amended
to read as follows:
(d) The commission shall adopt reasonable rules and
procedures establishing minimum standards regarding the continuity
of prescription medications for the care and treatment of
prisoners. The rules and procedures shall require that:
(1) a qualified medical professional shall review as
soon as possible any prescription medication a prisoner is taking
when the prisoner is taken into custody; and
(2) a prisoner with a mental illness be provided with
each prescription medication that a qualified medical professional
or mental health professional determines is necessary for the care,
treatment, or stabilization of the prisoner.
SECTION 12. The following provisions of the Code of
Criminal Procedure are repealed:
(1) Articles 46B.090(a) and (h); and
(2) Article 46B.091(a).
SECTION 13. The change in law made by this Act to Article
17.04, Code of Criminal Procedure, applies only to a personal bond
that is executed on or after the effective date of this Act. A
personal bond executed before the effective date of this Act is
governed by the law in effect on the date the personal bond was
executed, and the former law is continued in effect for that
purpose.
SECTION 14. The change in law made by this Act to Article
46C.102(a), Code of Criminal Procedure, applies to a defendant
against whom proceedings are initiated under Chapter 46C, Code of
Criminal Procedure, before, on, or after the effective date of this
Act.
SECTION 15. Not later than December 1, 2021, the Commission
on Jail Standards shall adopt the rules and procedures required by
Section 511.009(d), Government Code, as amended by this Act.
SECTION 16. This Act takes effect September 1, 2021.