S.B. No. 679
AN ACT
relating to the procedure for determining the incompetency of a
defendant to stand trial.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 46B.001, Code of Criminal Procedure, is
amended by amending Subdivision (1) and adding Subdivision (9) to
read as follows:
(1) "Department" means the [Texas] Department of State
Health Services [Mental Health and Mental Retardation].
(9) "Electronic broadcast system" means a two-way
electronic communication of image and sound between the defendant
and the court and includes secure Internet videoconferencing.
SECTION 2. Article 46B.004, Code of Criminal Procedure, is
amended by amending Subsection (d) and adding Subsection (e) to
read as follows:
(d) If the court determines there is evidence to support a
finding of incompetency, the court, except as provided by
Subsection (e) and Article 46B.005(d), shall stay all other
proceedings in the case.
(e) At any time during the proceedings under this chapter
after the issue of the defendant's incompetency to stand trial is
first raised, the court on the motion of the attorney representing
the state may dismiss all charges pending against the defendant,
regardless of whether there is any evidence to support a finding of
the defendant's incompetency under Subsection (d) or whether the
court has made a finding of incompetency under this chapter. If the
court dismisses the charges against the defendant, the court may
not continue the proceedings under this chapter, except that, if
there is evidence to support a finding of the defendant's
incompetency under Subsection (d), the court may proceed under
Subchapter F. If the court does not elect to proceed under
Subchapter F, the court shall discharge the defendant.
SECTION 3. Articles 46B.005, 46B.007, 46B.008, 46B.009, and
46B.011, Code of Criminal Procedure, are amended to read as
follows:
Art. 46B.005. DETERMINING INCOMPETENCY TO STAND TRIAL.
(a) If after an informal inquiry the court determines that
evidence exists to support a finding of incompetency, the court
shall order an examination under Subchapter B to determine whether
the defendant is incompetent to stand trial in a criminal case.
(b) Except as provided by Subsection (c), the court shall
hold a trial [hearing] under Subchapter C before determining
whether the defendant is incompetent to stand trial on the merits.
(c) A trial under this chapter [The court] is not required
[to hold a hearing] if:
(1) neither party's counsel [party] requests a [jury]
trial on the issue of incompetency;
(2) neither party's counsel [party] opposes a finding
of incompetency; and
(3) the court does not, on its own motion, determine
that a trial [hearing] is necessary to determine incompetency.
(d) If the issue of the defendant's incompetency to stand
trial is raised after the trial on the merits begins, the court may
determine the issue at any time before the sentence is pronounced
[sentencing]. If the determination is delayed until after the
return of a verdict, the court shall make the determination as soon
as reasonably possible after the return. If a verdict of not guilty
is returned, the court may not determine the issue of incompetency.
Art. 46B.007. ADMISSIBILITY OF STATEMENTS AND CERTAIN OTHER
EVIDENCE. A statement made by a defendant during an examination or
trial [hearing] on the defendant's incompetency, the testimony of
an expert based on that statement, and evidence obtained as a result
of that statement may not be admitted in evidence against the
defendant in any criminal proceeding, other than at:
(1) a trial [hearing] on the defendant's incompetency;
or
(2) any proceeding at which the defendant first
introduces into evidence a statement, testimony, or evidence
described by this article [section].
Art. 46B.008. RULES OF EVIDENCE. Notwithstanding Rule 101,
Texas Rules of Evidence, the Texas Rules of Evidence apply to a
trial under Subchapter C or other proceeding [hearing] under this
chapter whether the proceeding [hearing] is before a jury or before
the court.
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 the time the person is confined in a mental
health facility, [or] residential care facility, or jail pending
trial under Subchapter C.
(b) A defendant may not be committed to a mental hospital or
other in-patient or residential facility under this chapter for a
cumulative period that exceeds the maximum term provided by law for
the offense for which the defendant was to be tried. On expiration
of that maximum term, the defendant may be confined for an
additional period in a mental hospital or other in-patient or
residential facility only pursuant to civil commitment
proceedings.
Art. 46B.011. APPEALS. Neither the state nor the defendant
is entitled to make an interlocutory appeal relating to a
determination or ruling [of incompetency] under Article 46B.005.
SECTION 4. Subchapter A, Chapter 46B, Code of Criminal
Procedure, is amended by adding Article 46B.013 to read as follows:
Art. 46B.013. USE OF ELECTRONIC BROADCAST SYSTEM IN CERTAIN
PROCEEDINGS UNDER THIS CHAPTER. (a) A hearing may be conducted
using an electronic broadcast system as permitted by this chapter
and in accordance with the other provisions of this code if:
(1) written consent to the use of an electronic
broadcast system is filed with the court by:
(A) the defendant or the attorney representing
the defendant; and
(B) the attorney representing the state;
(2) the electronic broadcast system provides for a
simultaneous, compressed full motion video, and interactive
communication of image and sound between the judge, the attorney
representing the state, the attorney representing the defendant,
and the defendant; and
(3) on request of the defendant or the attorney
representing the defendant, the defendant and the attorney
representing the defendant are able to communicate privately
without being recorded or heard by the judge or the attorney
representing the state.
(b) On the motion of the defendant, the attorney
representing the defendant, or the attorney representing the state
or on the court's own motion, the court may terminate an appearance
made through an electronic broadcast system at any time during the
appearance and require an appearance by the defendant in open
court.
(c) A recording of the communication shall be made and
preserved until any appellate proceedings have been concluded. The
defendant may obtain a copy of the recording on payment of a
reasonable amount to cover the costs of reproduction or, if the
defendant is indigent, the court shall provide a copy to the
defendant without charging a cost for the copy.
SECTION 5. The heading to Subchapter C, Chapter 46B, Code of
Criminal Procedure, is amended to read as follows:
SUBCHAPTER C. INCOMPETENCY [HEARING AND] TRIAL
SECTION 6. Article 46B.051, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.051. TRIAL [HEARING] BEFORE JUDGE OR JURY.
(a) If a court holds a trial [hearing] to determine whether the
defendant is incompetent to stand trial, on the request of either
party or the motion of the court, a jury shall make the
determination.
(b) The court shall make the determination of incompetency
if a jury determination is not required by Subsection (a).
(c) If a jury determination is required by Subsection (a), a
jury that has not been selected to determine the guilt or innocence
of the defendant must determine the issue of incompetency.
SECTION 7. Articles 46B.053 and 46B.054, Code of Criminal
Procedure, are amended to read as follows:
Art. 46B.053. PROCEDURE AFTER FINDING OF COMPETENCY. If
[at a hearing] the court or jury determines that the defendant is
competent to stand trial, the court shall continue the trial on the
merits. If a jury determines that the defendant is competent and
the trial on the merits is to be held before a jury, the court shall
continue the trial with another jury selected for that purpose.
Art. 46B.054. UNCONTESTED INCOMPETENCY. If the court finds
[as required by Article 46B.005] that [there is] evidence exists to
support a finding of incompetency to stand trial and the court and
the counsel for each party agree that the defendant is incompetent
to stand trial, the court shall proceed in the same manner as if a
jury had been impaneled and had found the defendant incompetent to
stand trial.
SECTION 8. The heading to Subchapter D, Chapter 46B, Code of
Criminal Procedure, is amended to read as follows:
SUBCHAPTER D. PROCEDURES AFTER [ON] DETERMINATION OF INCOMPETENCY
SECTION 9. Subsections (c) and (d), Article 46B.073, Code
of Criminal Procedure, are amended to read as follows:
(c) If the defendant is charged with an offense listed in
Article 17.032(a) or the indictment alleges [requests] an
affirmative finding under Section 3g(a)(2), Article 42.12, the
court shall enter an order committing the defendant to the maximum
security unit of any facility designated by the department, to an
agency of the United States operating a mental hospital, or to a
Department of Veterans Affairs hospital.
(d) If the defendant is not charged with an offense listed
in Article 17.032(a) and the indictment does not allege [request]
an affirmative finding under Section 3g(a)(2), Article 42.12, the
court shall enter an order committing the defendant to a mental
health facility or residential care facility determined to be
appropriate by the local mental health authority or local mental
retardation authority.
SECTION 10. Article 46B.074, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.074. COMPETENT TESTIMONY REQUIRED. (a) A
defendant may be committed to a mental health facility or
residential care facility under this subchapter only on competent
medical or psychiatric testimony provided by an expert qualified
under Article 46B.022.
(b) The court may allow an expert to substitute the expert's
report under Article 46B.025 for any testimony by the expert that
may be required under this article.
SECTION 11. Subsection (a), Article 46B.076, Code of
Criminal Procedure, is amended to read as follows:
(a) If the defendant is found incompetent to stand trial,
the court shall send a copy of the order to the facility to which the
defendant is committed not later than the date the defendant is
committed to the facility. The court shall also provide to the
facility copies of the following made available to the court during
the incompetency trial [hearing]:
(1) reports of each expert;
(2) psychiatric, psychological, or social work
reports that relate to the mental condition of the defendant;
(3) documents provided by the attorney representing
the state or the attorney representing the defendant that relate to
the defendant's current or past mental condition;
(4) copies of the indictment or information and any
supporting documents used to establish probable cause in the case;
(5) the defendant's criminal history record; and
(6) the addresses of the attorney representing the
state and the attorney representing the defendant.
SECTION 12. Articles 46B.079 and 46B.080, Code of Criminal
Procedure, are amended to read as follows:
Art. 46B.079. RETURN TO COMMITTING COURT. (a) A defendant
committed under this subchapter shall be returned to the committing
court as soon as practicable after the date on which the defendant's
term of commitment expires.
(b) A defendant committed under this subchapter whose term
of commitment has not yet expired shall be returned to the
committing court as soon as practicable after the 15th day
following the date on which the parties receive service on any
report filed under Article 46B.080(b) regarding the defendant's
ability to attain competency, except that, if a party objects to the
findings of the report and the issue is set for a hearing under
Article 46B.084, the defendant may not be returned to the
committing court earlier than 72 hours before the date the hearing
is scheduled [the earliest of the following dates:
[(1) the date on which the facility determines that
the defendant has attained competency;
[(2) the date on which the facility determines that
the defendant will not attain competency in the foreseeable future;
or
[(3) the date on which the term of commitment
expires].
Art. 46B.080. NOTICE TO COMMITTING COURT. (a) The head of
a facility to which a defendant has been committed under this
subchapter, not later than the 14th day before the date on which a
commitment order is to expire, shall notify the committing court
that the term of the commitment is about to expire.
(b) The head of the facility to which a defendant has been
committed under this subchapter shall promptly notify the
committing court when the head of the facility is of the opinion
that:
(1) the defendant has attained competency to stand
trial; or
(2) the defendant will not attain competency in the
foreseeable future.
(c) When the head of the facility gives notice to the court
under Subsection (a) or (b), the head of the facility also shall
file a final report with the court stating the reason for the
proposed discharge under this chapter and including a list of the
types and dosages of medications with which the defendant was
treated for mental illness while in the facility. The court shall
provide copies of the report to the attorney representing the
defendant and the attorney representing the state.
(d) If the head of the facility to which the defendant has
been committed notifies the court that the commitment order is
about to expire, the notice may contain a request for an extension
of the commitment order for a period of 60 days and an explanation
for the basis of the request.
SECTION 13. Subsection (a), Article 46B.081, Code of
Criminal Procedure, is amended to read as follows:
(a) On the request of the head of a facility made under
Article 46B.080(d) [46B.080(c)], the court may enter an order
extending the term of the commitment order for a period of 60 days.
SECTION 14. Article 46B.083, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.083. SUPPORTING COMMITMENT INFORMATION PROVIDED
[REPORT] BY FACILITY HEAD. (a) [When the head of a facility to
which the defendant is committed discharges the defendant and the
defendant is returned to the committing court, the head of the
facility shall file a final report with the court stating the reason
for the discharge under Article 46B.080. The court shall furnish
copies of the report to the defense counsel and the prosecuting
attorney.
[(b)] If the head of the facility believes that the
defendant is a person with mental illness and meets the criteria for
court-ordered inpatient mental health services under Subtitle C,
Title 7, Health and Safety Code, the head of the facility shall have
submitted to the court a certificate of medical examination for
mental illness. [The head of the facility shall include in the
final report a list of the types and dosages of medications with
which the defendant was treated for mental illness while in the
facility.]
(b) [(c)] If the head of the facility is of the opinion that
the defendant is a person with mental retardation, the head of the
facility shall have submitted to the court an affidavit stating the
conclusions reached as a result of the examination.
SECTION 15. Article 46B.084, Code of Criminal Procedure, is
amended by amending Subsections (a) and (c) and adding Subsection
(b-1) to read as follows:
(a) On the return of a defendant to the committing court,
the court shall make a determination with regard to the defendant's
competency to stand trial. The court may make the determination
based solely on the report filed under Article 46B.080(c)
[46B.080(b)], unless any party objects in writing or in open court
to the findings of the report not later than the 15th day after the
date on which the report is served on the parties.
(b-1) If the hearing is before the court, the hearing may be
conducted by means of an electronic broadcast system as provided by
Article 46B.013. Notwithstanding any other provision of this
chapter, the defendant is not required to be returned to the
committing court with respect to any hearing that is conducted
under this article in the manner described by this subsection.
(c) The hearing shall be held within 30 days following the
date of objection unless continued for good cause for a period not
to exceed 30 days.
SECTION 16. Article 46B.085, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.085. SUBSEQUENT COMMITMENTS AND EXTENSIONS
[RECOMMITMENT] PROHIBITED. (a) The court may order only one
commitment and one extension under this subchapter [A defendant
committed under this subchapter may not be recommitted under this
subchapter] in connection with the same offense.
(b) After a commitment and an extension are ordered as
described by Subsection (a), any subsequent court orders for
treatment must be issued under Subchapter E or F.
SECTION 17. The heading to Subchapter E, Chapter 46B, Code
of Criminal Procedure, is amended to read as follows:
SUBCHAPTER E. CIVIL [EXTENDED] COMMITMENT: CHARGES PENDING
SECTION 18. The heading to Article 46B.102, Code of
Criminal Procedure, is amended to read as follows:
Art. 46B.102. CIVIL COMMITMENT HEARING: MENTAL ILLNESS.
SECTION 19. The heading to Article 46B.103, Code of
Criminal Procedure, is amended to read as follows:
Art. 46B.103. CIVIL COMMITMENT HEARING: MENTAL
RETARDATION.
SECTION 20. Article 46B.104, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.104. CIVIL [EXTENDED] COMMITMENT PLACEMENT:
FINDING OF VIOLENCE. A defendant committed to a facility as a
result of proceedings initiated under this chapter shall be
committed to the maximum security unit of any facility designated
by the department if:
(1) the defendant is charged with an offense listed in
Article 17.032(a); or
(2) the indictment charging the offense alleges
[requests] an affirmative finding under Section 3g(a)(2), Article
42.12.
SECTION 21. The heading to Article 46B.105, Code of
Criminal Procedure, is amended to read as follows:
Art. 46B.105. TRANSFER FOLLOWING CIVIL [EXTENDED]
COMMITMENT PLACEMENT.
SECTION 22. The heading to Article 46B.106, Code of
Criminal Procedure, is amended to read as follows:
Art. 46B.106. CIVIL [EXTENDED] COMMITMENT PLACEMENT: NO
FINDING OF VIOLENCE.
SECTION 23. The heading to Article 46B.107, Code of
Criminal Procedure, is amended to read as follows:
Art. 46B.107. RELEASE OF DEFENDANT AFTER CIVIL COMMITMENT.
SECTION 24. Subsection (d), Article 46B.107, Code of
Criminal Procedure, is amended to read as follows:
(d) The court may, on motion of the attorney representing
the state or on its own motion, hold a hearing to determine whether
release is appropriate under the applicable criteria in Subtitle C
or D, Title 7, Health and Safety Code. The court may conduct the
hearing:
(1) at the facility; or
(2) by means of an electronic broadcast system as
provided by Article 46B.013.
SECTION 25. Subsection (b), Article 46B.108, Code of
Criminal Procedure, is amended to read as follows:
(b) An inquiry into restoration of competency under this
subchapter may be made at the request of the head of the mental
health facility or residential care facility to which the defendant
has been committed, the defendant, the attorney representing the
defendant, or the attorney representing the state, or may be made on
the court's own motion.
SECTION 26. Article 46B.110, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.110. MOTION BY DEFENDANT, ATTORNEY REPRESENTING
DEFENDANT, OR ATTORNEY REPRESENTING STATE. (a) The defendant, the
attorney representing the defendant, or the attorney representing
the state may move that the court determine that the defendant has
been restored to competency.
(b) A motion for a determination of competency may be
accompanied by affidavits supporting the moving party's assertion
that the defendant is competent.
SECTION 27. Subsection (c), Article 46B.113, Code of
Criminal Procedure, is amended to read as follows:
(c) If a court holds a hearing under this article, on the
request of the counsel for either party or the motion of the court,
a jury shall make the competency determination. If the competency
determination will be made by the court rather than a jury, the
court may conduct the hearing:
(1) at the facility; or
(2) by means of an electronic broadcast system as
provided by Article 46B.013.
SECTION 28. Article 46B.114, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.114. TRANSPORTATION OF DEFENDANT TO COURT. If the
hearing is not conducted at the facility to which the defendant has
been committed under this chapter or conducted by means of an
electronic broadcast system as described by this subchapter, an
[An] order setting a hearing to determine whether the defendant has
been restored to competency shall direct that, as soon as
practicable but not earlier than 72 hours before the date the
hearing is scheduled, the defendant be placed in the custody of the
sheriff of the county in which the committing court is located or
the sheriff's designee for transportation to the court. The
sheriff or the sheriff's designee may not take custody of the
defendant under this article until 72 hours before the date the
hearing is scheduled.
SECTION 29. Article 46B.115, Code of Criminal Procedure, is
amended by adding Subsection (c) to read as follows:
(c) If the competency determination will be made by the
court, the court may conduct the hearing at the facility to which
the defendant has been committed under this chapter or may conduct
the hearing by means of an electronic broadcast system as provided
by Article 46B.013.
SECTION 30. Subsection (a), Article 46B.117, Code of
Criminal Procedure, is amended to read as follows:
(a) If a defendant under order of commitment to a facility
is found to not have been restored to competency to stand trial, the
court shall remand the defendant pursuant to that order of
commitment, and, if applicable, order the defendant placed in the
custody of the sheriff or the sheriff's designee for transportation
back to the facility.
SECTION 31. The heading to Subchapter F, Chapter 46B, Code
of Criminal Procedure, is amended to read as follows:
SUBCHAPTER F. CIVIL [EXTENDED] COMMITMENT: CHARGES DISMISSED
SECTION 32. The heading to Article 46B.151, Code of
Criminal Procedure, is amended to read as follows:
Art. 46B.151. COURT DETERMINATION RELATED TO CIVIL
COMMITMENT.
SECTION 33. Subsection (a), Article 46B.151, Code of
Criminal Procedure, is amended to read as follows:
(a) If a court is required by Article 46B.084(f) or
permitted by Article 46B.004(e) to proceed under this subchapter,
the court shall determine whether there is evidence to support a
finding that the defendant is either a person with mental illness or
a person with mental retardation.
SECTION 34. Article 46B.171, Code of Criminal Procedure, is
amended to read as follows:
Art. 46B.171. TRANSCRIPTS AND OTHER RECORDS[;
DOCUMENTATION]. (a) The court shall order that:
(1) a transcript of all medical testimony received in
both the criminal proceedings and the civil commitment proceedings
under Subchapter E or F be prepared as soon as possible by the court
reporters; and
(2) copies of documents listed in Article 46B.076
accompany the defendant to the mental health facility or
residential care facility.
(b) On the request of the defendant or the attorney
representing the defendant, a mental health facility or a
residential care facility shall provide to the defendant or the
attorney copies of the facility's records regarding the defendant.
SECTION 35. 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 COMPETENCY OR
FITNESS TO PROCEED [COMPETENCY DETERMINATION]. (a) The office
shall perform duties imposed on the office by Section 508.146,
Government Code.
(b) The office, with the special assistance of committee
members appointed under Section 614.002(b)(1), shall:
(1) review examinations to determine the competency of
defendants in criminal cases to stand trial and examinations to
determine the fitness of children to proceed with respect to
adjudications of delinquent conduct or conduct indicating a need
for supervision; and
(2) periodically [shall] report to the legislature and
the court of criminal appeals findings made as a result of the
review described by Subdivision (1) [to the legislature and the
court of criminal appeals].
(c) A district or juvenile court shall submit to the office
on a monthly basis all reports based on examinations described by
Subsection (b).
SECTION 36. (a) The change in law made by this Act in
amending Articles 46B.001, 46B.107, 46B.113, 46B.114, 46B.115, and
46B.117, Code of Criminal Procedure, applies only to a competency
hearing requested by the motion of a party or held on the motion of
the court on or after the effective date of this Act. A competency
hearing requested by the motion of a party or held on the motion of
the court before the effective date of this Act is covered by the
law in effect when the motion for a hearing was made by a party or by
the court, as applicable, and the former law is continued in effect
for that purpose.
(b) The change in law made by this Act in amending Articles
46B.004, 46B.011, and 46B.074 and Subsection (c), Article 46B.084,
Article 46B.085, and Subsection (a), Article 46B.151, Code of
Criminal Procedure, applies 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 covered by the law in effect when the offense was
committed, and the former law is continued in effect for that
purpose. For purposes of this subsection, an offense was committed
before the effective date of this Act if any element of the offense
was committed before that date.
(c) The change in law made by this Act in amending Articles
46B.009, 46B.080, 46B.083, and 46B.171, Code of Criminal Procedure,
and adding Subsection (b-1), Article 46B.084, Code of Criminal
Procedure, applies to a defendant charged with an offense committed
before, on, or after the effective date of this Act.
SECTION 37. Notwithstanding Section 16, Chapter 35, Acts of
the 78th Legislature, Regular Session, 2003, a determination of
incompetency is covered by Chapter 46B, Code of Criminal Procedure,
for a defendant:
(1) against whom proceedings were initiated before
January 1, 2004, under former Article 46.02, Code of Criminal
Procedure; and
(2) for whom proceedings have not become final before
the effective date of this Act.
SECTION 38. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 679 passed the Senate on
April 21, 2005, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendment on May 23, 2005, by a
viva-voce vote.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 679 passed the House, with
amendment, on May 19, 2005, by a non-record vote.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor