88R3692 EAS-F
By: Herrero H.B. No. 4886
A BILL TO BE ENTITLED
AN ACT
relating to sexually violent predators and the prosecution of
certain offenses involving prohibited items at correctional or
civil commitment facilities; creating a criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 20.02(c), Penal Code, is amended to read
as follows:
(c) An offense under this section is a Class A misdemeanor,
except that the offense is:
(1) a state jail felony if the person restrained was a
child younger than 17 years of age;
(2) a felony of the third degree if:
(A) the actor recklessly exposes the victim to a
substantial risk of serious bodily injury;
(B) the actor restrains an individual the actor
knows is a public servant while the public servant is lawfully
discharging an official duty or in retaliation or on account of an
exercise of official power or performance of an official duty as a
public servant; or
(C) the actor, while in custody or committed to a
civil commitment facility, restrains any other person; or
(3) notwithstanding Subdivision (2)(B), a felony of
the second degree if the actor restrains an individual the actor
knows is a peace officer or judge while the officer or judge is
lawfully discharging an official duty or in retaliation or on
account of an exercise of official power or performance of an
official duty as a peace officer or judge.
SECTION 2. Section 21.07(b), Penal Code, is amended to read
as follows:
(b) An offense under this section is a Class A misdemeanor,
except that the offense is a felony of the third degree if the actor
is civilly committed as a sexually violent predator under Chapter
841, Health and Safety Code.
SECTION 3. Section 21.08(b), Penal Code, is amended to read
as follows:
(b) An offense under this section is a Class B misdemeanor,
except that the offense is a felony of the third degree if the actor
is civilly committed as a sexually violent predator under Chapter
841, Health and Safety Code.
SECTION 4. Section 22.01(b-1), Penal Code, is amended to
read as follows:
(b-1) Notwithstanding Subsections [Subsection] (b) and (c),
an offense under Subsection (a) [(a)(1)] is a felony of the third
degree if the offense is committed:
(1) by an [while the] actor who is committed to a civil
commitment facility; and
(2) against:
(A) a person the actor knows is an officer or
employee of the Texas Civil Commitment Office:
(i) while the officer or employee is
lawfully discharging an official duty [at a civil commitment
facility]; or
(ii) in retaliation for or on account of an
exercise of official power or performance of an official duty by the
officer or employee; or
(B) a person the actor knows is contracting [who
contracts] with the state to perform a service in a civil commitment
facility or an employee of that person:
(i) while the person or employee is engaged
in performing a service within the scope of the contract[, if the
actor knows the person or employee is authorized by the state to
provide the service]; or
(ii) in retaliation for or on account of the
person's or employee's performance of a service within the scope of
the contract.
SECTION 5. Section 38.11, Penal Code, is amended by
amending Subsections (a), (d), and (k) and adding Subsection (j-1)
to read as follows:
(a) A person commits an offense if the person provides, or
possesses with the intent to provide:
(1) an alcoholic beverage, controlled substance, or
dangerous drug to a person in the custody of a correctional facility
or residing in a civil commitment facility, except on the
prescription of a practitioner;
(2) a deadly weapon to a person in the custody of a
correctional facility or residing in a civil commitment facility;
(3) a cellular telephone or other wireless
communications device or a component of one of those devices to a
person in the custody of a correctional facility;
(4) money to a person confined in a correctional
facility; or
(5) a cigarette or tobacco product to a person
confined in a correctional facility, except that if the facility is
a local jail regulated by the Commission on Jail Standards, the
person commits an offense only if providing the cigarette or
tobacco product violates a rule or regulation adopted by the
sheriff or jail administrator that:
(A) prohibits the possession of a cigarette or
tobacco product by a person confined in the jail; or
(B) places restrictions on:
(i) the possession of a cigarette or
tobacco product by a person confined in the jail; or
(ii) the manner in which a cigarette or
tobacco product may be provided to a person confined in the jail.
(d) A person commits an offense if the person:
(1) possesses an alcoholic beverage, [a] controlled
substance, or dangerous drug while in a correctional facility or
civil commitment facility or on property owned, used, or controlled
by a correctional facility or civil commitment facility; or
(2) possesses a deadly weapon while in a correctional
facility or civil commitment facility.
(j-1) A person commits an offense if the person, while
residing in a civil commitment facility, possesses a cellular
telephone or other wireless communications device or a component of
one of those devices unless the device or component is authorized by
the Texas Civil Commitment Office.
(k) A person commits an offense if, with the intent to
provide to or make a cellular telephone or other wireless
communications device or a component of one of those devices
available for use by a person in the custody of a correctional
facility or residing in a civil commitment facility, the person:
(1) acquires a cellular telephone or other wireless
communications device or a component of one of those devices to be
delivered to the person in custody or residing in the facility;
(2) provides a cellular telephone or other wireless
communications device or a component of one of those devices to
another person for delivery to the person in custody or residing in
the facility; or
(3) makes a payment to a communication common carrier,
as defined by Article 18A.001, Code of Criminal Procedure, or to any
communication service that provides to its users the ability to
send or receive wire or electronic communications.
SECTION 6. Chapter 39, Penal Code, is amended by adding
Section 39.041 to read as follows:
Sec. 39.041. IMPROPER SEXUAL ACTIVITY WITH COMMITTED
PERSON. (a) In this section, "deviate sexual intercourse,"
"sexual contact," and "sexual intercourse" have the meanings
assigned by Section 21.01.
(b) An officer or employee of the Texas Civil Commitment
Office, a person who contracts with this state to perform a service
in a civil commitment facility or an employee of that person, or a
volunteer at a civil commitment facility commits an offense if the
person intentionally engages in deviate sexual intercourse, sexual
contact, or sexual intercourse with a person committed to a civil
commitment facility.
(c) An offense under this section is a felony of the third
degree.
(d) It is an affirmative defense to prosecution under this
section that, at the time of the offense, the actor was the spouse
of the person committed to the civil commitment facility.
(e) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section, the other law, or both.
SECTION 7. Article 62.005(j), Code of Criminal Procedure,
is amended to read as follows:
(j) The department, for law enforcement purposes or for
supervision and treatment purposes, shall release all relevant
information described by Subsection (a), including information
that is not public information under Subsection (b), to a peace
officer, an employee of a local law enforcement authority, the
Texas Civil Commitment Office, or the attorney general on the
request of the applicable person or entity.
SECTION 8. Article 62.051, Code of Criminal Procedure, is
amended by amending Subsections (b), (e), and (f) and adding
Subsection (e-1) to read as follows:
(b) The department shall provide the Texas Department of
Criminal Justice, the Texas Juvenile Justice Department, the Texas
Civil Commitment Office, and each local law enforcement authority,
authority for campus security, county jail, and court with a form
for registering persons required by this chapter to register.
(e) Not later than the third day after the registration of a
person [a person's registering], the local law enforcement
authority with whom the person is registered shall send a copy of
the registration form to the department and, if the person resides
on the campus of a public or private institution of higher
education, to any authority for campus security for that
institution.
(e-1) The Texas Civil Commitment Office shall register with
the applicable local law enforcement authority on behalf of a
person who is civilly committed as a sexually violent predator
under Chapter 841, Health and Safety Code, and required to reside in
a civil commitment center. A person for whom registration is
completed under this subsection is not required to verify the
registration until the person is authorized to reside outside of
the civil commitment center.
(f) Not later than the seventh day after the date on which
the person is released or, for a person who is civilly committed as
a sexually violent predator under Chapter 841, Health and Safety
Code, authorized to reside outside of the civil commitment center,
a person for whom registration is completed under this chapter
shall report to the applicable local law enforcement authority to
verify the information in the registration form received by the
authority under this chapter. The authority shall require the
person to produce proof of the person's identity and residence
before the authority gives the registration form to the person for
verification. If the information in the registration form is
complete and accurate, the person shall verify registration by
signing the form. If the information is not complete or not
accurate, the person shall make any necessary additions or
corrections before signing the form.
SECTION 9. Subtitle A, Title 2, Civil Practice and Remedies
Code, is amended by adding Chapter 14A to read as follows:
CHAPTER 14A. LITIGATION BY CIVILLY COMMITTED INDIVIDUAL
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 14A.001. DEFINITIONS. In this chapter:
(1) "Civilly committed individual" means a sexually
violent predator as described by Section 841.003, Health and Safety
Code, who has been committed to a facility operated by or under
contract with the office.
(2) "Claim" means a cause of action governed by this
chapter.
(3) "Office" means the Texas Civil Commitment Office.
(4) "Trust account" means a civilly committed
individual's trust account administered by the office or by a
facility under contract with the office.
(5) "Unsworn declaration" means a document executed in
accordance with Chapter 132.
Sec. 14A.002. SCOPE OF CHAPTER. (a) This chapter applies
only to an action, including an appeal or original proceeding,
brought by a civilly committed individual in a district, county, or
justice court or an appellate court, including the supreme court or
the court of criminal appeals, in which an affidavit or unsworn
declaration of inability to pay costs is filed by the civilly
committed individual.
(b) This chapter does not apply to an action brought under
the Family Code.
SUBCHAPTER B. DISMISSAL OF AND REQUIREMENTS FOR CLAIM
Sec. 14A.051. DISMISSAL OF FALSE, FRIVOLOUS, OR MALICIOUS
CLAIM. (a) A court may dismiss a claim, either before or after
service of process, if the court finds that:
(1) the allegation of poverty in the affidavit or
unsworn declaration is false;
(2) the claim is frivolous or malicious; or
(3) the civilly committed individual filed an
affidavit or unsworn declaration required by this chapter that the
individual knew was false.
(b) In determining whether a claim is frivolous or
malicious, the court may consider whether:
(1) the claim's realistic chance of ultimate success
is slight;
(2) the claim has no arguable basis in law or in fact;
(3) it is clear that the civilly committed individual
cannot prove the facts in support of the claim; or
(4) the claim is substantially similar to a previous
claim filed by the civilly committed individual because the claim
arises from the same operative facts.
(c) In determining whether Subsection (a) applies, the
court may hold a hearing. The hearing may be held before or after
service of process, and it may be held on motion of the court, a
party, or the court clerk.
(d) On the filing of a motion under Subsection (c), the
court shall suspend discovery relating to the claim pending the
hearing.
(e) A court that dismisses a claim brought by a civilly
committed individual housed in a facility operated by or under
contract with the office may notify the office of the dismissal and,
on the court's own motion or the motion of any party or the court
clerk, may advise the office that a mental health evaluation of the
individual may be appropriate.
Sec. 14A.052. AFFIDAVIT RELATING TO PREVIOUS FILINGS. (a)
A civilly committed individual who files an affidavit or unsworn
declaration of inability to pay costs shall file a separate
affidavit or declaration:
(1) identifying the court that ordered the
individual's civil commitment under Chapter 841, Health and Safety
Code;
(2) indicating whether any cause of action or
allegation contained in the petition has previously been filed in
any other court, and if so, stating the cause of action or
allegation previously filed and complying with Subdivision (6) and
Subsection (b);
(3) identifying each action, other than an action
under the Family Code, previously brought by the individual in
which the individual was not represented by an attorney, without
regard to whether the individual was civilly committed at the time
the action was brought;
(4) certifying that all grievance processes
applicable to the matter that is the basis of the claim, if any,
have been exhausted;
(5) certifying that no court has found the individual
to be a vexatious litigant under Chapter 11; and
(6) describing each action that was previously brought
by:
(A) stating the operative facts for which relief
was sought;
(B) listing the case name, the cause number, and
the court in which the action was brought;
(C) identifying each party named in the action;
and
(D) stating the result of the action, including
whether the action or a claim that was a basis for the action was
dismissed as frivolous or malicious under Section 13.001, 14.003,
or 14A.051 or otherwise.
(b) If the affidavit or unsworn declaration filed under this
section states that a previous action or claim was dismissed as
frivolous or malicious, the affidavit or unsworn declaration must
state the date of the final order affirming the dismissal.
(c) The affidavit or unsworn declaration must be
accompanied by the certified copy of the trust account statement
required by Section 14A.054(f).
Sec. 14A.053. GRIEVANCE SYSTEM DECISION; EXHAUSTION OF
ADMINISTRATIVE REMEDIES. (a) A civilly committed individual who
files a claim that is subject to a grievance system established by
the office or a facility under contract with the office shall file
with the court:
(1) an affidavit or unsworn declaration stating the
date that the grievance was filed and the date the written decision
was received by the individual; and
(2) a copy of the written decision from the grievance
system.
(b) A court shall dismiss a claim if the civilly committed
individual fails to file the claim before the 31st day after the
date the individual receives the written decision from the
grievance system.
(c) If a claim is filed before the grievance system
procedure is complete, the court shall stay the proceeding with
respect to the claim for a period not to exceed 180 days to permit
completion of the grievance system procedure.
Sec. 14A.054. COURT FEES, COURT COSTS, OTHER COSTS. (a) A
court may order a civilly committed individual who has filed a claim
to pay court fees, court costs, and other costs in accordance with
this section and Section 14A.055. The court clerk shall mail a copy
of the court's order and a certified bill of costs to the office or
facility under contract with the office, as appropriate.
(b) On the court's order, the civilly committed individual
shall pay an amount equal to the lesser of:
(1) 20 percent of the preceding six months' deposits to
the individual's trust account; or
(2) the total amount of court fees, court costs, and
other costs.
(c) In each month following the month in which payment is
made under Subsection (b), the civilly committed individual shall
pay an amount equal to the lesser of:
(1) 10 percent of that month's deposits to the trust
account; or
(2) the total amount of court fees, court costs, and
other costs that remains unpaid.
(d) Payments under Subsection (c) shall continue until the
total amount of court fees, court costs, and other costs are paid or
until the civilly committed individual is released from
confinement.
(e) On receipt of a copy of an order issued under Subsection
(a), the office or facility under contract with the office shall
withdraw money from the trust account in accordance with
Subsections (b), (c), and (d). The office or facility shall hold the
money in a separate account and shall forward the money to the court
clerk on the earlier of the following dates:
(1) the date the total amount to be forwarded equals
the total amount of court fees, court costs, and other costs that
remains unpaid; or
(2) the date the civilly committed individual is
released.
(f) The civilly committed individual shall file a certified
copy of the individual's trust account statement with the court.
The statement must reflect the balance of the account at the time
the claim is filed and activity in the account during the six months
preceding the date on which the claim is filed. The court may
request the office to provide the information required under this
subsection.
(g) A civilly committed individual may authorize payment in
addition to that required by this section.
(h) The court may dismiss a claim if the civilly committed
individual fails to pay fees and costs assessed under this section.
(i) A civilly committed individual may not avoid the fees
and costs assessed under this section by nonsuiting a party or by
voluntarily dismissing the action.
Sec. 14A.055. OTHER COSTS. (a) An order under Section
14A.054(a) must include the costs described by Subsection (b) if
the court finds that:
(1) the civilly committed individual has previously
filed an action to which this chapter or Chapter 14 applies; and
(2) a final order has been issued that affirms that the
action was dismissed as frivolous or malicious under Section
13.001, 14.003, or 14A.051 or otherwise.
(b) If Subsection (a) applies, costs of court must include
expenses incurred by the court or by the office or facility under
contract with the office, in connection with the claim and not
otherwise charged to the civilly committed individual under Section
14A.054, including:
(1) expenses of service of process;
(2) postage; and
(3) transportation, housing, or medical care incurred
in connection with the appearance of the individual in the court for
any proceeding.
Sec. 14A.056. HEARING. (a) The court may hold a hearing
under this chapter at a facility operated by or under contract with
the office or may conduct the hearing with video communications
technology that permits the court to see and hear the civilly
committed individual and that permits the individual to see and
hear the court and any other witness.
(b) A hearing conducted under this section by video
communications technology shall be recorded on videotape or by
other electronic means. The recording is sufficient to serve as a
permanent record of the hearing.
Sec. 14A.057. SUBMISSION OF EVIDENCE. (a) The court may
request a person with an admissible document or admissible
testimony relevant to the subject matter of the hearing to submit a
copy of the document or written statement stating the substance of
the testimony.
(b) A written statement submitted under this section must be
made under oath or made as an unsworn declaration under Section
132.001.
(c) A copy of a document submitted under this section must
be accompanied by a certification executed under oath by an
appropriate custodian of the record stating that the copy is
correct and any other matter relating to the admissibility of the
document that the court requires.
(d) A person submitting a written statement or document
under this section is not required to appear at the hearing.
(e) The court shall require that the civilly committed
individual be provided with a copy of each written statement or
document not later than the 14th day before the date on which the
hearing is to begin.
Sec. 14A.058. DISMISSAL OF CLAIM. (a) The court may enter
an order dismissing the entire claim or a portion of the claim under
this chapter.
(b) If a portion of the claim is dismissed, the court shall
designate the issues and defendants on which the claim may proceed,
subject to Sections 14A.054 and 14A.055.
(c) An order under this section is not subject to
interlocutory appeal by the civilly committed individual.
Sec. 14A.059. EFFECT ON OTHER CLAIMS. (a) Except as
provided by Subsection (b), on receipt of an order assessing fees
and costs under Section 14A.054 that indicates that the court made
the finding described by Section 14A.055(a), a court clerk may not
accept for filing another claim by the civilly committed individual
until the fees and costs assessed under Section 14A.054 are paid.
(b) A court may allow a civilly committed individual who has
not paid the fees and costs assessed against the individual to file
a claim for injunctive relief seeking to enjoin an act or failure to
act that creates a substantial threat of irreparable injury or
serious physical harm to the individual.
Sec. 14A.060. QUESTIONNAIRE. To implement this chapter, a
court may develop, for use in that court, a questionnaire to be
filed by the civilly committed individual.
Sec. 14A.061. REVIEW AND RECOMMENDATION BY MAGISTRATES.
(a) The supreme court shall, by rule, adopt a system under which a
court may refer a suit governed by this chapter to a magistrate for
review and recommendation.
(b) The system adopted under Subsection (a) may be funded
from money appropriated to the supreme court or from money received
by the supreme court through interagency contract or contracts.
(c) For the purposes of Section 14A.062, the adoption of a
system by rule under Subsection (a) does not constitute a
modification or repeal of a provision of this chapter.
Sec. 14A.062. CONFLICT WITH TEXAS RULES OF CIVIL PROCEDURE.
Notwithstanding Section 22.004, Government Code, this chapter may
not be modified or repealed by a rule adopted by the supreme court.
SECTION 10. Subchapter C, Chapter 552, Government Code, is
amended by adding Section 552.1345 to read as follows:
Sec. 552.1345. EXCEPTION: CONFIDENTIALITY OF CERTAIN
INFORMATION RELATING TO CIVILLY COMMITTED SEXUALLY VIOLENT
PREDATORS. (a) Except as provided by Subsection (b), information
obtained or maintained by the Texas Civil Commitment Office is
excepted from the requirements of Section 552.021 if it is
information about a person who is civilly committed as a sexually
violent predator under Chapter 841, Health and Safety Code.
(b) Subsection (a) does not apply to statistical or other
aggregated information relating to persons civilly committed to one
or more facilities operated by or under a contract with the office.
SECTION 11. Subchapter I, Chapter 2001, Government Code, is
amended by adding Section 2001.227 to read as follows:
Sec. 2001.227. TEXAS CIVIL COMMITMENT OFFICE. This chapter
does not apply to a rule or internal procedure of the Texas Civil
Commitment Office that applies to a person who is civilly committed
as a sexually violent predator under Chapter 841, Health and Safety
Code, or to an action taken under that rule or procedure.
SECTION 12. Section 2155.144(a), Government Code, is
amended to read as follows:
(a) This section applies only to the Health and Human
Services Commission, each health and human services agency, [and]
the Department of Family and Protective Services, and agencies
administratively attached to the Health and Human Services
Commission. For the purposes of this section, the Department of
Family and Protective Services or an agency administratively
attached to the Health and Human Services Commission is considered
a health and human services agency.
SECTION 13. Section 109.051(b), Occupations Code, is
amended to read as follows:
(b) Notwithstanding Subtitle B, Title 3, of this code or
Chapter 611, Health and Safety Code, a person described by
Subsection (a), on request or in the normal course of business,
shall release information concerning the treatment of a sex
offender to:
(1) another person described by Subsection (a);
(2) a criminal justice agency; [or]
(3) a local law enforcement authority; or
(4) the Texas Civil Commitment Office.
SECTION 14. Section 109.052, Occupations Code, is amended
to read as follows:
Sec. 109.052. RELEASE BY CRIMINAL JUSTICE AGENCY. A
criminal justice agency, on request or in the normal course of
official business, shall release information concerning the
treatment of a sex offender to:
(1) another criminal justice agency;
(2) a local law enforcement authority; [or]
(3) a person described by Section 109.051(a); or
(4) the Texas Civil Commitment Office.
SECTION 15. Section 109.053, Occupations Code, is amended
to read as follows:
Sec. 109.053. RELEASE BY LOCAL LAW ENFORCEMENT AUTHORITY.
A local law enforcement authority, on request or in the normal
course of official business, shall release information concerning
the treatment of a sex offender to:
(1) another local law enforcement authority;
(2) a criminal justice agency; [or]
(3) a person described by Section 109.051(a); or
(4) the Texas Civil Commitment Office.
SECTION 16. Sections 841.002(1) and (8), Health and Safety
Code, are amended to read as follows:
(1) "Attorney representing the state" means a district
attorney, criminal district attorney, or county attorney with
felony criminal jurisdiction who represents the state in a [civil
commitment] proceeding under this chapter.
(8) "Sexually violent offense" means:
(A) an offense under Section 21.02, 21.11(a)(1),
22.011, or 22.021, Penal Code;
(B) an offense under Section 20.04(a)(4), Penal
Code, if the person committed the offense with the intent to violate
or abuse the victim sexually;
(C) an offense under Section 30.02, Penal Code,
if the offense is punishable under Subsection (d) of that section
and the person entered the habitation [committed the offense] with
the intent to commit an offense listed in Paragraph (A) or (B) or
committed or attempted to commit an offense listed in Paragraph (A)
or (B);
(D) an offense under Section 19.02 or 19.03,
Penal Code, that, during the guilt or innocence phase or the
punishment phase for the offense, during the adjudication or
disposition of delinquent conduct constituting the offense, or
subsequently during a civil commitment proceeding under Subchapter
D, is determined beyond a reasonable doubt to have been based on
sexually motivated conduct;
(E) an attempt, conspiracy, or solicitation, as
defined by Chapter 15, Penal Code, to commit an offense listed in
Paragraph (A), (B), (C), or (D);
(F) an offense under prior state law that
contains elements substantially similar to the elements of an
offense listed in Paragraph (A), (B), (C), (D), or (E); or
(G) an offense under the law of another state,
federal law, or the Uniform Code of Military Justice that contains
elements substantially similar to the elements of an offense listed
in Paragraph (A), (B), (C), (D), or (E).
SECTION 17. Section 841.042, Health and Safety Code, is
amended to read as follows:
Sec. 841.042. ASSISTANCE FROM SPECIAL PROSECUTION UNIT. On
request of the attorney representing the state, the special
prosecution unit shall provide legal, financial, and technical
assistance to the attorney for a [civil commitment] proceeding
conducted under this chapter.
SECTION 18. Section 841.0834, Health and Safety Code, is
amended to read as follows:
Sec. 841.0834. MOVEMENT BETWEEN PROGRAMMING TIERS. (a)
The office shall transfer between programming tiers a committed
person required to reside in a total confinement facility [to less
restrictive housing and supervision] if the transfer is in the best
interests of the person and conditions can be imposed that
adequately protect the community.
(b) Without the office's approval, a committed person may
file a petition with the court for transfer to the next less
restrictive tier [housing and supervision]. The court shall deny
the transfer if the petition is filed before the 180th day after the
date an order was entered under Subchapter D, F, or G or a previous
order was entered under this section. The court shall grant the
transfer if the court determines by clear and convincing evidence
that the transfer is in the best interests of the person and that
the office can impose conditions [can be imposed] that adequately
protect the community.
(c) A committed person who files a petition under Subsection
(b) [this subsection] shall serve a copy of the petition on the
office and the attorney representing the state.
(d) [(c)] The office shall transfer [return] a committed
person who is not required to reside in a total confinement facility
back [has been transferred to less restrictive housing and
supervision] to a more restrictive setting in a total confinement
facility if the office considers the transfer necessary to further
treatment and to protect the community. The decision to transfer
the person must be based on the person's behavior or progress in
treatment.
(e) [(d)] Not later than the 90th day after the date a
committed person is returned to a more restrictive setting in a
total confinement facility under Subsection (d) [(c)], the
committing court shall hold a hearing via videoconference to review
the office's determination. The court shall order the office to
transfer the person to a less restrictive tier [housing and
supervision] only if the court determines by clear and convincing
evidence that the office's determination was not made in accordance
with Subsection (d) [(c)]. The committed person may waive the right
to a hearing under this subsection.
SECTION 19. Section 841.0838, Health and Safety Code, is
amended to read as follows:
Sec. 841.0838. USE OF RESTRAINTS. (a) An employee of the
office, or a person who contracts with the office or an employee of
that person, may use mechanical [or chemical] restraints on a
committed person residing in a civil commitment center or while
transporting a committed person who resides at the center only if:
(1) the employee or person completes a training
program approved by the office on the use of mechanical restraints
that:
(A) includes instruction on the office's
approved mechanical restraint techniques and devices and the
office's verbal de-escalation policies, procedures, and practices;
and
(B) requires the employee or person to
demonstrate competency in the use of the mechanical restraint
techniques and devices; and
(2) the mechanical restraint is:
(A) considered necessary to maintain the safety
and security of the center or staff [used as a last resort];
(B) considered necessary to maintain the safety
of the public [necessary to stop or prevent:
[(i) imminent physical injury to the
committed person or another;
[(ii) threatening behavior by the committed
person while the person is using or exhibiting a weapon;
[(iii) a disturbance by a group of
committed persons; or
[(iv) an absconsion from the center]; and
(C) the least restrictive restraint necessary,
used for the minimum duration necessary[, to prevent the injury,
property damage, or absconsion].
(b) An employee of the office, or a person who contracts
with the office or an employee of that person, may use chemical
restraints on a committed person residing in a civil commitment
center or while transporting a committed person who resides at the
center only if:
(1) the employee or person completes a training
program approved by the office on the use of chemical restraints
that:
(A) includes instruction on the office's
approved chemical restraint techniques and devices and the office's
verbal de-escalation policies, procedures, and practices; and
(B) requires the employee or person to
demonstrate competency in the use of chemical restraint techniques
and devices; and
(2) the chemical restraint is:
(A) used as a last resort;
(B) necessary to prevent or stop:
(i) physical injury to the committed person
or another;
(ii) threatening behavior by the committed
person;
(iii) a disturbance by a group of committed
persons; or
(iv) an absconsion from the center; and
(C) the least restrictive restraint necessary,
used for the minimum duration necessary, to prevent injury,
property damage, or absconsion.
(c) The office shall develop procedures governing the use of
mechanical or chemical restraints on committed persons.
SECTION 20. Sections 841.123(a), (c), and (d), Health and
Safety Code, are amended to read as follows:
(a) If the committed person files a petition for release
without the office's authorization, the person shall serve the
petition on the court, [and] the attorney representing the state,
and the office.
(c) Except as provided by Subsection (d), the judge shall
deny without a hearing a petition for release filed without the
office's authorization if [the petition is frivolous or if]:
(1) the judge determines by a preponderance of the
evidence that [petitioner previously filed without the office's
authorization another petition for release; and
[(2) the judge determined on review of the previous
petition or following a hearing that:
[(A) the petition was frivolous; or
[(B)] the petitioner's behavioral abnormality
has [had] not changed to the extent that the petitioner is [was] no
longer likely to engage in a predatory act of sexual violence; or
(2) the petitioner has filed the petition for release
before the 180th day after the date an order was entered under
Subchapter D or F or a previous order was entered under this
section.
(d) The judge is not required to deny a petition under
Subsection (c)(2) if the judge determines by a preponderance of the
evidence [probable cause exists to believe] that the petitioner's
behavioral abnormality has changed to the extent that the
petitioner is no longer likely to engage in a predatory act of
sexual violence.
SECTION 21. Chapter 841, Health and Safety Code, is amended
by adding Subchapter I to read as follows:
SUBCHAPTER I. ADMINISTRATION OF CERTAIN MEDICATION TO CERTAIN
SEXUALLY VIOLENT PREDATORS
Sec. 841.201. DEFINITIONS. In this subchapter:
(1) "Capacity" means a committed person's ability to:
(A) understand the nature and consequences of a
proposed treatment, including the benefits, risks, and
alternatives to the proposed treatment; and
(B) make a decision whether to undergo the
proposed treatment.
(2) "Medication-related emergency" means a situation
in which it is immediately necessary to administer medication to a
committed person to prevent:
(A) imminent probable death or substantial
bodily harm to the committed person because the committed person:
(i) overtly or continually is threatening
or attempting to commit suicide or serious bodily harm; or
(ii) is behaving in a manner that indicates
that the committed person is unable to satisfy the committed
person's need for nourishment, essential medical care, or
self-protection; or
(B) imminent physical or emotional harm to
another because of threats, attempted acts, or acts the committed
person overtly or continually makes or commits.
(3) "Psychoactive medication" has the meaning
assigned by Section 574.101.
Sec. 841.202. ADMINISTRATION OF MEDICATION TO COMMITTED
PERSON. A person may not administer a psychoactive medication to a
committed person who refuses to take the medication voluntarily
unless:
(1) the committed person is having a
medication-related emergency; or
(2) the committed person is under an order issued
under Section 841.205 authorizing the administration of medication
regardless of the committed person's refusal.
Sec. 841.203. PHYSICIAN'S APPLICATION FOR ORDER TO
AUTHORIZE PSYCHOACTIVE MEDICATION; DATE OF HEARING. (a) A
physician who is treating a committed person may, on behalf of the
state, file an application in a probate court or a court with
probate jurisdiction for an order to authorize the administration
of a psychoactive medication regardless of the committed person's
refusal if:
(1) the physician believes that the committed person
lacks the capacity to make a decision regarding the administration
of the psychoactive medication;
(2) the physician determines that the medication is
the proper course of treatment for the committed person;
(3) the committed person is receiving mental health
services under Section 841.0835 or other law; and
(4) the committed person, verbally or by other
indication, refuses to take the medication voluntarily.
(b) An application filed under this section must state:
(1) that the physician believes that the committed
person lacks the capacity to make a decision regarding
administration of the psychoactive medication and the reasons for
that belief;
(2) each medication the physician wants the court to
compel the committed person to take;
(3) whether the committed person is receiving mental
health services under Section 841.0835 or other law;
(4) the physician's diagnosis of the committed person;
and
(5) the proposed method for administering the
medication and, if the method is not customary, an explanation
justifying the departure from the customary methods.
(c) An application filed under this section is separate from
an application for court-ordered mental health services.
(d) A hearing on the application must be held not later than
the 30th day after the date the application was filed. If the
committed person is transferred to a mental health facility in
another county, the court may transfer the application to the
county where the committed person has been transferred.
(e) Subject to the requirement in Subsection (d) that the
hearing be held not later than the 30th day after the date the
application was filed, the court may grant one continuance on a
party's motion and for good cause shown. The court may grant more
than one continuance only with the agreement of the parties.
Sec. 841.204. RIGHTS OF COMMITTED PERSON. A committed
person for whom an application under Section 841.203 is filed is
entitled to:
(1) representation by a court-appointed attorney who
is knowledgeable about issues to be adjudicated at the hearing;
(2) meet with that attorney as soon as is practicable
to prepare for the hearing and to discuss any of the committed
person's questions or concerns;
(3) receive, immediately after the time of the hearing
is set, a copy of the application and written notice of the time,
place, and date of the hearing;
(4) be told, at the time personal notice of the hearing
is given, of the committed person's right to a hearing and right to
the assistance of an attorney to prepare for the hearing and to
answer any questions or concerns;
(5) be present at the hearing;
(6) request from the court an independent expert; and
(7) be notified orally, at the conclusion of the
hearing, of the court's determinations of the committed person's
capacity and best interests.
Sec. 841.205. HEARING AND ORDER AUTHORIZING PSYCHOACTIVE
MEDICATION. (a) The court may issue an order authorizing the
administration of one or more classes of psychoactive medication to
a committed person who is receiving mental health services under
Section 841.0835 or other law.
(b) The court may issue an order under this section only if
the court finds by clear and convincing evidence after a hearing
that the committed person:
(1) lacks the capacity to make a decision regarding
the administration of the proposed medication and treatment with
the proposed medication is in the best interest of the committed
person; or
(2) as determined under Section 841.206, presents a
danger to the committed person or others in the civil commitment
center in which the committed person is being treated.
(c) In making the finding that treatment with the proposed
medication is in the best interest of the committed person, the
court shall consider:
(1) the committed person's expressed preferences
regarding treatment with psychoactive medication;
(2) the committed person's religious beliefs;
(3) the risks and benefits, from the perspective of
the committed person, of taking psychoactive medication;
(4) the consequences to the committed person if the
psychoactive medication is not administered;
(5) the prognosis for the committed person if the
committed person is treated with psychoactive medication;
(6) alternative, less intrusive treatments that are
likely to produce the same results as treatment with psychoactive
medication; and
(7) less intrusive treatments likely to secure the
committed person's agreement to take the psychoactive medication.
(d) A hearing under this subchapter shall be conducted on
the record by the probate judge or judge with probate jurisdiction,
except as provided by Subsection (e).
(e) A judge may refer a hearing to a magistrate or
court-appointed associate judge who has training regarding
psychoactive medications. The magistrate or associate judge may
provide the notice, set hearing dates, and appoint attorneys as
required by this subchapter. A record is not required if the
hearing is held by a magistrate or court-appointed associate judge.
(f) A party is entitled to a hearing de novo by the judge if
an appeal of the magistrate's or associate judge's report is filed
with the court not later than the third day after the date the
report is issued. The hearing de novo must be held not later than
the 30th day after the date the application under Section 841.203
was filed.
(g) If a hearing or an appeal of a magistrate's or associate
judge's report is to be held in a county court in which the judge is
not a licensed attorney, the committed person or the committed
person's attorney may request that the proceeding be transferred to
a court with a judge who is licensed to practice law in this state.
The county judge shall transfer the case after receiving the
request, and the receiving court shall hear the case as if it had
been originally filed in that court.
(h) As soon as practicable after the conclusion of the
hearing, the committed person is entitled to have provided to the
committed person and the committed person's attorney written
notification of the court's determinations under this section. The
notification must include a statement of the evidence on which the
court relied and the reasons for the court's determinations.
(i) An order issued under this section shall authorize the
administration to a committed person, regardless of the committed
person's refusal, of one or more classes of psychoactive
medications specified in the application and consistent with the
committed person's diagnosis. The order shall permit an increase
or decrease in a medication's dosage, continuation of medication
authorized but discontinued during the period the order is valid,
or the substitution of a medication within the same class.
(j) The classes of psychoactive medications in the order
must conform to classes determined by the Health and Human Services
Commission.
(k) An order issued under this section may be reauthorized
or modified on the petition of a party. The order remains in effect
pending action on a petition for reauthorization or modification.
For the purpose of this subsection, "modification" means a change
of a class of medication authorized in the order.
Sec. 841.206. FINDING THAT COMMITTED PERSON PRESENTS A
DANGER. In making a finding under Section 841.205(b)(2) that the
committed person presents a danger to the committed person or
others in the civil commitment center in which the committed person
is being treated, the court shall consider:
(1) an assessment of the committed person's present
mental condition;
(2) whether the committed person has inflicted,
attempted to inflict, or made a serious threat of inflicting
substantial physical or emotional harm to the committed person's
self or to another while in the center; and
(3) whether the committed person, in the 180-day
period preceding the date the committed person was placed in the
center, has inflicted, attempted to inflict, or made a serious
threat of inflicting substantial physical or emotional harm to
another.
Sec. 841.207. COSTS. (a) The court shall order the payment
of reasonable compensation to attorneys, physicians, language
interpreters, sign interpreters, and associate judges appointed
under this subchapter. The compensation paid shall be assessed as
court costs.
(b) The agency responsible for services under Section
841.0835(a) shall pay as provided by Subsection (a) the costs of a
hearing held under Section 841.205 regarding an order for the
administration of psychoactive medication to a committed person.
Sec. 841.208. APPEAL. (a) An appeal from an order issued
under Section 841.205, or from a renewal or modification of an
order, must be filed in the court of appeals for the county in which
the order is issued.
(b) Notice of appeal must be filed not later than the 10th
day after the date on which the order is issued.
(c) When an appeal is filed, the clerk shall immediately
send a certified transcript of the proceedings to the court of
appeals.
(d) An order issued under Section 841.205 is effective
pending an appeal of the order.
(e) The court of appeals and supreme court shall give an
appeal under this section preference over all other cases and shall
advance the appeal on the docket. The courts may suspend all rules
relating to the time for filing briefs and docketing cases.
Sec. 841.209. EXPIRATION OF ORDER. An order issued under
Section 841.205 expires on the first anniversary of the date the
order was issued.
SECTION 22. The changes in law made by this Act in amending
Sections 20.02, 21.07, 21.08, 22.01, and 38.11, Penal Code, apply
only to an offense committed on or after the effective date of this
Act. 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 23. Chapter 14A, Civil Practice and Remedies Code,
as added by this Act, applies only to an action filed on or after the
effective date of this Act.
SECTION 24. Subchapter I, Chapter 841, Health and Safety
Code, as added by this Act, applies to a hearing ordering the
administration of psychoactive medication to a committed person
under that chapter that occurs on or after the effective date of
this Act, regardless of whether the applicable conduct of the
committed person being evaluated for that purpose occurred before,
on, or after the effective date of this Act.
SECTION 25. This Act takes effect September 1, 2023.