S.B. No. 867
 
 
 
 
AN ACT
  relating to procedures regarding criminal defendants who are or may
  be persons with mental illness or mental retardation.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Article 16.22, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 16.22.  EXAMINATION AND TRANSFER OF DEFENDANT SUSPECTED
  OF HAVING MENTAL ILLNESS OR MENTAL RETARDATION.  (a)(1)  Not later
  than 72 hours after receiving evidence or a statement that may
  establish reasonable cause to believe that a defendant committed to
  the sheriff's custody has a mental illness or is a person with
  mental retardation, the sheriff shall notify a magistrate of that
  fact.  A defendant's behavior or the result of a prior evaluation
  indicating a need for referral for further mental health or mental
  retardation assessment must be considered in determining whether
  reasonable cause exists to believe the defendant has a mental
  illness or is a person with mental retardation.  On a determination
  that there is reasonable cause to believe that the defendant has a
  mental illness or is a person with mental retardation, the
  magistrate, except as provided by Subdivision (2), shall order an
  examination of the defendant by the local mental health or mental
  retardation authority or another [disinterested expert experienced
  and] qualified [in] mental health or mental retardation expert to
  determine whether the defendant has a mental illness as defined by
  Section 571.003, Health and Safety Code, or is a person with mental
  retardation as defined by Section 591.003, Health and Safety Code.
               (2)  The magistrate is not required to order an
  examination described by Subdivision (1) if the defendant in the
  year preceding the defendant's applicable date of arrest has been
  evaluated and determined to have a mental illness or to be a person
  with mental retardation by the local mental health or mental
  retardation authority or another mental health or mental
  retardation expert described by Subdivision (1).  A court that
  elects to use the results of that evaluation may proceed under
  Subsection (c).
               (3)  If the defendant fails or refuses to submit to an 
  examination required under Subdivision (1), the magistrate may
  order the defendant to submit to an examination in a mental health
  facility determined to be appropriate by the local mental health or
  mental retardation authority for a reasonable period not to exceed
  21 days.  The magistrate may order a defendant to a facility
  operated by the [Texas] Department of State [Mental] Health
  Services or the Department of Aging and Disability Services [and
  Mental Retardation] for examination only on request of the local
  mental health or mental retardation authority and with the consent
  of the head of the facility.  If a defendant who has been ordered to
  a facility operated by the [Texas] Department of State [Mental]
  Health Services or the Department of Aging and Disability Services 
  [and Mental Retardation] for examination remains in the facility
  for a period exceeding 21 days, the head of that facility shall
  cause the defendant to be immediately transported to the committing
  court and placed in the custody of the sheriff of the county in
  which the committing court is located.  That county shall reimburse
  the [Texas Department of Mental Health and Mental Retardation]
  facility for the mileage and per diem expenses of the personnel
  required to transport the defendant calculated in accordance with
  the state travel regulations in effect at the time.
         (b)  A written report of the examination shall be submitted
  to the magistrate not later than the 30th day after the date of any 
  [within 30 days of the] order of examination issued in a felony case
  and not later than the 10th day after the date of any order of
  examination issued in a misdemeanor case, and the magistrate shall
  provide [furnish] copies of the report to the defense counsel and
  the prosecuting attorney.  The report must [shall] include a
  description of the procedures used in the examination and the
  examiner's observations and findings pertaining to:
               (1)  whether the defendant is a person who has a mental
  illness or is a person with mental retardation;
               (2)  whether there is clinical evidence to support a
  belief that the defendant may be incompetent to stand trial and
  should undergo a complete competency examination under Subchapter
  B, Chapter 46B; and
               (3)  recommended treatment.
         (c)  After the court receives the examining expert's report
  relating to the defendant under Subsection (b) or elects to use the
  results of an evaluation described by Subsection (a)(2), the court
  may, as applicable [resume]:
               (1)  resume criminal proceedings against the
  defendant, including any appropriate proceedings related to the
  defendant's release on personal bond under Article 17.032; or
               (2)  resume or initiate competency proceedings, if
  required, as provided by Chapter 46B or other proceedings affecting
  the defendant's receipt of appropriate court-ordered mental health
  or mental retardation services, including proceedings related to
  the defendant's receipt of outpatient mental health services under
  Section 574.034, Health and Safety Code.
         (d)  Nothing in this article prevents the court from, pending
  an evaluation of the defendant as described by this article:
               (1)  releasing a mentally ill or mentally retarded
  defendant from custody on personal or surety bond; or
               (2)  ordering an examination regarding the defendant's
  competency to stand trial.
         SECTION 2.  Subchapter A, Chapter 46B, Code of Criminal
  Procedure, is amended by amending Articles 46B.009 and 46B.010 and
  by adding Article 46B.0095 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 the time the person is confined in a mental
  health facility, 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.0095.  MAXIMUM PERIOD OF FACILITY COMMITMENT OR
  OUTPATIENT TREATMENT PROGRAM PARTICIPATION DETERMINED BY MAXIMUM
  TERM FOR OFFENSE.  (a)  A defendant may not, under this chapter, be
  committed to a mental hospital or other inpatient or residential
  facility, ordered to participate in an outpatient treatment
  program, or subjected to both inpatient and outpatient treatment
  for a cumulative period that exceeds the maximum term provided by
  law for the offense for which the defendant was to be tried, except
  that if the defendant is charged with a misdemeanor and has been
  ordered only to participate in an outpatient treatment program
  under Subchapter D or E, the maximum period of restoration is two
  years beginning on the date of the initial order for outpatient
  treatment program participation was entered.
         (b)  On expiration of the maximum restoration period under
  Subsection (a), the defendant may be confined for an additional
  period in a mental hospital or other inpatient or residential
  facility or ordered to participate for an additional period in an
  outpatient treatment program, as appropriate, only pursuant to
  civil commitment proceedings.
         Art. 46B.010.  MANDATORY DISMISSAL OF MISDEMEANOR CHARGES.  
  If a court orders the commitment of or participation in an
  outpatient treatment program by [commits] a defendant who is
  charged with a misdemeanor punishable by confinement and the
  defendant is not tried before the date of expiration of the maximum
  period of restoration under this chapter as described by Article
  46B.0095 [second anniversary of the date on which the order of
  commitment was entered], the court on the motion of the attorney
  representing the state shall dismiss the charge.
         SECTION 3.  Article 46B.072, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46B.072.  RELEASE ON BAIL.  (a)  Subject to conditions
  reasonably related to assuring public safety and the effectiveness
  of the defendant's treatment, if [If] the court determines that a
  defendant found incompetent to stand trial is not a danger to others
  and may be safely treated on an outpatient basis with [for] the
  specific objective [purpose] of attaining competency to stand trial
  and if an appropriate outpatient treatment program is available for
  the defendant, the court:
               (1)  may release [the defendant] on bail a defendant
  found incompetent to stand trial with respect to a felony or may 
  continue the defendant's release on bail; and
               (2)  shall release on bail a defendant found
  incompetent to stand trial with respect to a misdemeanor or shall
  continue the defendant's release on bail[, subject to conditions
  reasonably related to assuring public safety and the effectiveness
  of the defendant's treatment].
         (b)  The court shall order a defendant released on bail under
  Subsection (a) to participate in an outpatient treatment program
  for a period not to exceed 120 days.
         (c)  Notwithstanding Subsection (a), the court may order a
  defendant to participate in an outpatient treatment program under
  this article only if:
               (1)  the court receives and approves a comprehensive
  plan that:
                     (A)  provides for the treatment of the defendant
  for purposes of competency restoration; and
                     (B)  identifies the person who will be responsible
  for providing that treatment to the defendant; and
               (2)  the court finds that the treatment proposed by the
  plan will be available to and will be provided to the defendant.
         (d)  An order issued under this article may require the
  defendant to participate in:
               (1)  as appropriate, an outpatient treatment program
  administered by a community center or an outpatient treatment
  program administered by any other entity that provides outpatient
  competency restoration services; and
               (2)  an appropriate prescribed regimen of medical,
  psychiatric, or psychological care or treatment, including care or  
  treatment involving the administration of psychoactive medication,
  including those required under Article 46B.086.
         SECTION 4.  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), other than an offense listed in Article
  17.032(a)(6), or the indictment alleges 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
  described by Subsection (c) [listed in Article 17.032(a)] and the
  indictment does not allege 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 5.  Articles 46B.075 and 46B.076, Code of Criminal
  Procedure, are amended to read as follows:
         Art. 46B.075.  TRANSFER OF DEFENDANT TO FACILITY OR
  OUTPATIENT TREATMENT PROGRAM.  An [A commitment] order issued under
  Article 46B.072 or 46B.073 [this subchapter] must place the
  defendant in the custody of the sheriff for transportation to the
  facility or outpatient treatment program, as applicable, in which
  the defendant is to receive treatment for purposes of competency
  restoration [be confined].
         Art. 46B.076.  COURT'S ORDER.  (a)  If the defendant is found
  incompetent to stand trial, not later than the date of the order of
  commitment or of release on bail, as applicable, the court shall
  send a copy of the order to the facility of the department to which
  the defendant is committed or the outpatient treatment program to
  which the defendant is released [not later than the date the
  defendant is committed to the facility].  The court shall also
  provide to the facility or outpatient treatment program copies of
  the following made available to the court during the incompetency
  trial:
               (1)  reports of each expert;
               (2)  psychiatric, psychological, or social work
  reports that relate to the mental condition of the defendant;
               (3)  documents provided by the attorney representing
  the state or the attorney representing the defendant that relate to
  the defendant's current or past mental condition;
               (4)  copies of the indictment or information and any
  supporting documents used to establish probable cause in the case;
               (5)  the defendant's criminal history record; and
               (6)  the addresses of the attorney representing the
  state and the attorney representing the defendant.
         (b)  The court shall order that the transcript of all medical
  testimony received by the jury or court be promptly prepared by the
  court reporter and forwarded to the proper facility or outpatient
  treatment program.
         SECTION 6.  Subsection (a), Article 46B.077, Code of
  Criminal Procedure, is amended to read as follows:
         (a)  The facility to which the defendant is committed or the
  outpatient treatment program to which the defendant is released on
  bail shall:
               (1)  develop an individual program of treatment;
               (2)  assess and evaluate whether the defendant will
  obtain competency in the foreseeable future; and
               (3)  report to the court and to the local mental health
  authority or to the local mental retardation authority on the
  defendant's progress toward achieving competency.
         SECTION 7.  Articles 46B.078 through 46B.083, Code of
  Criminal Procedure, are amended to read as follows:
         Art. 46B.078.  CHARGES SUBSEQUENTLY DISMISSED.  If the
  charges pending against a defendant are dismissed, the [committing]
  court that issued the order under Article 46B.072 or 46B.073 shall
  send a copy of the order of dismissal to the sheriff of the county in
  which the [committing] court is located and to the head of the
  facility or the provider of the outpatient treatment program, as
  appropriate [in which the defendant is held].  On receipt of the
  copy of the order, the facility or outpatient treatment program 
  shall discharge the defendant into the care of the sheriff for
  transportation in the manner described by Article 46B.082.
         Art. 46B.079.  NOTICE AND REPORT TO COURT.  (a)  The head of
  the facility or the provider of the outpatient treatment program,
  as appropriate, not later than the 15th day before the date on which
  a restoration period is to expire, shall notify the applicable
  court that the restoration period is about to expire.
         (b)  The head of the facility or outpatient treatment program
  provider shall promptly notify the court when the head of the
  facility or outpatient treatment program provider believes that:
               (1)  the defendant 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 or outpatient treatment
  program provider gives notice to the court under Subsection (a) or
  (b), the head of the facility or outpatient treatment program
  provider also shall file a final report with the court stating the
  reason for the proposed discharge 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 or
  participating in the outpatient treatment program.  To enable any
  objection to the findings of the report to be made in a timely
  manner under Article 46B.084(a), 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 or outpatient treatment
  program provider notifies the court that the initial restoration
  period is about to expire, the notice may contain a request for an
  extension of the period for an additional period of 60 days and an
  explanation for the basis of the request [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 received 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.]
         Art. 46B.080.  EXTENSION OF ORDER.  (a)  On a request of the
  head of a facility or a treatment program provider that is made
  under Article 46B.079(d) and notwithstanding any other provision of
  this subchapter, the court may enter an order extending the initial
  restoration period for an additional period of 60 days.
         (b)  The court may enter an order under Subsection (a) only
  if the court determines that, on the basis of information provided
  by the head of the facility or the treatment program provider:
               (1)  the defendant has not attained competency; and
               (2)  an extension of the restoration period will likely
  enable the facility or program to restore the defendant to
  competency.
         (c)  The court may grant only one extension under this
  article for a period of restoration ordered under this subchapter 
  [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].
         Art. 46B.081.  RETURN TO COURT.  Subject to Article
  46B.082(b), a defendant committed or released on bail under this
  subchapter shall be returned to the applicable court as soon as
  practicable after notice to the court is provided under Article
  46B.079, but not later than the date of expiration of the period for
  restoration specified by the court under Article 46B.072 or 46B.073 
  [EXTENSION OF COMMITMENT ORDER.   (a)     On the request of the head of
  a facility made under Article 46B.080(d), the court may enter an
  order extending the term of the commitment order for a period of 60
  days.
         [(b)     The court may enter an order under Subsection (a) only
  if the court determines that, on the basis of information provided
  by the head of the facility:
               [(1)  the defendant has not attained competency; and
               [(2)     an extension of the term of the commitment order
  will likely enable the facility to restore the defendant to
  competency.
         [(c)     The court may grant only one extension under this
  article for the term of a defendant's commitment order].
         Art. 46B.082.  TRANSPORTATION OF DEFENDANT.  (a)  On
  notification from the [committing] court under Article 46B.078, the
  sheriff of the county in which the [committing] court is located or
  the sheriff's designee shall transport the defendant to the
  [committing] court.
         (b)  If before the 15th day after the date on which the court
  received notification under Article 46B.079 a defendant committed
  to a [maximum security unit of a] facility of the department or
  ordered to participate in an outpatient treatment program has not
  been transported to the court that issued the order under Article
  46B.072 or 46B.073, as applicable [from the unit before the 15th day
  after the date on which the court received notification under
  Article 46B.080(a)], the head of the [that] facility to which the
  defendant is committed or the provider of the outpatient treatment
  program in which the defendant is participating shall cause the
  defendant to be promptly transported to the [committing] court and
  placed in the custody of the sheriff of the county in which the
  [committing] court is located.  The county in which the
  [committing] court is located shall reimburse the department for
  the mileage and per diem expenses of the personnel required to
  transport the defendant, calculated in accordance with rates
  provided in the General Appropriations Act for state employees.
         Art. 46B.083.  SUPPORTING COMMITMENT INFORMATION PROVIDED BY
  FACILITY HEAD OR OUTPATIENT TREATMENT PROGRAM PROVIDER.  (a)  If
  the head of the facility or outpatient treatment program provider 
  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 or the outpatient treatment program provider shall
  have submitted to the court a certificate of medical examination
  for mental illness.
         (b)  If the head of the facility or the outpatient treatment
  program provider believes [is of the opinion] that the defendant is
  a person with mental retardation, the head of the facility or the
  outpatient treatment program provider shall have submitted to the
  court an affidavit stating the conclusions reached as a result of
  the examination.
         SECTION 8.  Subsections (a) and (b-1), Article 46B.084, Code
  of Criminal Procedure, are amended 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.079(c) 
  [46B.080(c)], 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 court received notification under Article 46B.079 
  [report is served on the parties].  The court shall make the
  determination not later than the 20th day after the date on which
  the court received notification under Article 46B.079, regardless
  of whether a party objects to the report as described by this
  subsection and the issue is set for hearing under Subsection (b).
         (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.
         SECTION 9.  Articles 46B.085 and 46B.086, Code of Criminal
  Procedure, are amended to read as follows:
         Art. 46B.085.  SUBSEQUENT RESTORATION PERIODS [COMMITMENTS]
  AND EXTENSIONS OF THOSE PERIODS PROHIBITED.  (a)  The court may
  order only one initial period of restoration [commitment] and one
  extension under this subchapter in connection with the same
  offense.
         (b)  After an initial restoration period [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.
         Art. 46B.086.  COURT-ORDERED MEDICATIONS.  (a)  This article
  applies only to a defendant:
               (1)  who is determined under this chapter to be
  incompetent to stand trial;
               (2)  for whom an inpatient mental health facility,
  residential care facility, or outpatient treatment program
  provider has prepared a continuity of care plan [has been prepared
  by a facility] that requires the defendant to take psychoactive
  medications; and
               (3)  who, after a hearing held under Section 574.106,
  Health and Safety Code, has been found not to meet the criteria
  prescribed by Sections 574.106(a) and (a-1), Health and Safety
  Code, for court-ordered administration of psychoactive
  medications; or
               (4)  who is subject to Article 46B.072.
         (b)  If a defendant described by Subsection (a) refuses to
  take psychoactive medications as required by the defendant's
  continuity of care plan, the director of the correctional facility
  or outpatient treatment provider shall notify the court in which
  the criminal proceedings are pending of that fact not later than the
  end of the next business day following the refusal.  The court shall
  promptly notify the attorney representing the state and the
  attorney representing the defendant of the defendant's refusal.  
  The attorney representing the state may file a written motion to
  compel medication.  The motion to compel medication must be filed
  not later than the 15th day after the date a judge issues an order
  stating that the defendant does not meet the criteria for
  court-ordered administration of psychoactive medications under
  Section 574.106, Health and Safety Code.  The motion to compel
  medication for a defendant in an outpatient treatment program may
  be filed at any time.
         (c)  The court, after notice and after a hearing held not
  later than the fifth day after the defendant is returned to the
  committing court, may authorize the director of a correctional
  facility or the program provider, as applicable, to have the
  medication administered to the defendant, by reasonable force if
  necessary.
         (d) [(c)]  The court may issue an order under this article
  only if the order is supported by the testimony of two physicians,
  one of whom is the physician at or with the applicable correctional
  facility or outpatient treatment program who is prescribing the
  medication as a component of the defendant's continuity of care
  plan and another who is not otherwise involved in proceedings
  against the defendant.  The court may require either or both
  physicians to examine the defendant and report on the examination
  to the court.
         (e) [(d)]  The court may issue an order under this article if
  the court finds by clear and convincing evidence that:
               (1)  the prescribed medication is medically
  appropriate, is in the best medical interest of the defendant, and
  does not present side effects that cause harm to the defendant that
  is greater than the medical benefit to the defendant;
               (2)  the state has a clear and compelling interest in
  the defendant obtaining and maintaining competency to stand trial;
               (3)  no other less invasive means of obtaining and
  maintaining the defendant's competency exists; and
               (4)  the prescribed medication will not unduly
  prejudice the defendant's rights or use of defensive theories at
  trial.
         (f) [(e)]  A statement made by a defendant to a physician
  during an examination under Subsection (d) [(c)] may not be
  admitted against the defendant in any criminal proceeding, other
  than at:
               (1)  a hearing on the defendant's incompetency; or
               (2)  any proceeding at which the defendant first
  introduces into evidence the contents of the statement.
         SECTION 10.  Article 46B.102, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46B.102.  CIVIL COMMITMENT HEARING:  MENTAL ILLNESS.  
  (a)  If it appears to the court that the defendant may be a person
  with mental illness, the court shall hold a hearing to determine
  whether the defendant should be court-ordered to mental health
  services under Subtitle C, Title 7, Health and Safety Code 
  [committed to a mental health facility].
         (b)  Proceedings for commitment of the defendant to
  court-ordered mental health services [a mental heath facility] 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 whether or not the criminal court is also the county
  court.
         (c)  If the court enters an order committing the defendant to
  a mental health facility, the defendant shall be:
               (1)  treated in conformity with Subtitle C, Title 7,
  Health and Safety Code, except as otherwise provided by this
  chapter; and
               (2)  released in conformity with Article 46B.107.
         (d)  In proceedings conducted under this subchapter for a
  defendant described by Subsection (a):
               (1)  an application for court-ordered temporary or
  extended mental health services may not be required;
               (2)  the provisions of Subtitle C, Title 7, Health and
  Safety Code, relating to notice of hearing do not apply; and
               (3)  appeals from the criminal court proceedings are to
  the court of appeals as in the proceedings for court-ordered
  inpatient mental health services under Subtitle C, Title 7, Health
  and Safety Code.
         SECTION 11.  Subsection (d), Article 46B.103, Code of
  Criminal Procedure, is amended to read as follows:
         (d)  In the proceedings conducted under this subchapter for a
  defendant described by Subsection (a):
               (1)  an application [for court-ordered temporary or
  extended mental health services or] to have the defendant declared
  a person with mental retardation may not be required;
               (2)  the provisions of Subtitle [Subtitles C and] D,
  Title 7, Health and Safety Code, relating to notice of hearing do
  not apply; and
               (3)  appeals from the criminal court proceedings are to
  the court of appeals as in the proceedings for [court-ordered
  inpatient mental health services under Subtitle C, Title 7, Health
  and Safety Code, or for] commitment to a residential care facility
  under Subtitle D, Title 7, Health and Safety Code.
         SECTION 12.  Article 46B.104, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46B.104.  CIVIL 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), other than an offense listed in Article
  17.032(a)(6); or
               (2)  the indictment charging the offense alleges an
  affirmative finding under Section 3g(a)(2), Article 42.12.
         SECTION 13.  Article 46B.106, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46B.106.  CIVIL COMMITMENT PLACEMENT:  NO FINDING OF
  VIOLENCE.  (a)  A defendant committed to a facility as a result of
  the proceedings initiated under this chapter, other than a
  defendant described by Article 46B.104, shall be committed to:
               (1)  a facility designated by the department; or
               (2)  an outpatient treatment program [local mental
  health authority or local mental retardation authority to serve the
  catchment area in which the committing court is located].
         (b)  A facility or 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 14.  Article 46B.107, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46B.107.  RELEASE OF DEFENDANT AFTER CIVIL COMMITMENT.  
  (a)  The release from the department, an outpatient treatment
  program, or a facility of a defendant committed under this chapter
  is subject to disapproval by the committing court if the court or
  the attorney representing the state has notified the head of the
  facility or outpatient treatment provider, as applicable, to which
  the defendant has been committed that a criminal charge remains
  pending against the defendant.
         (b)  If the head of the facility or outpatient treatment
  provider to which a defendant has been committed under this chapter
  determines that the defendant should be released from the facility,
  the head of the facility or outpatient treatment provider shall
  notify the committing court and the sheriff of the county from which
  the defendant was committed in writing of the release not later than
  the 14th day before the date on which the facility or outpatient
  treatment provider intends to release the defendant.
         (c)  The head of the facility or outpatient treatment
  provider shall provide with the notice a written statement that
  states an opinion as to whether the defendant to be released has
  attained competency to stand trial.
         (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.
         (e)  If the court determines that release is not appropriate,
  the court shall enter an order directing the head of the facility or
  the outpatient treatment provider to not release the defendant.
         (f)  If an order is entered under Subsection (e), any
  subsequent proceeding to release the defendant is subject to this
  article.
         SECTION 15.  Article 46B.108, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46B.108.  REDETERMINATION OF COMPETENCY.  (a)  If
  criminal charges against a defendant found incompetent to stand
  trial have not been dismissed, the trial court at any time may
  determine whether the defendant has been restored to competency.
         (b)  An inquiry into restoration of competency under this
  subchapter may be made at the request of the head of the mental
  health facility, outpatient treatment provider, 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 16.  Article 46B.109, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46B.109.  REQUEST BY HEAD OF FACILITY OR OUTPATIENT
  TREATMENT PROVIDER.  (a)  The head of a facility or outpatient
  treatment provider to which a defendant has been committed as a
  result of a finding of incompetency to stand trial may request the
  court to determine that the defendant has been restored to
  competency.
         (b)  The head of the facility or outpatient treatment
  provider shall provide with the request a written statement that in
  their [the] opinion [of the head of the facility] the defendant is
  competent to stand trial.
         SECTION 17.  Article 46B.113, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46B.113.  DETERMINATION OF RESTORATION WITHOUT
  AGREEMENT.  (a)  The court shall hold a hearing on a request by the
  head of a facility or outpatient treatment provider to which a
  defendant has been committed as a result of a finding of
  incompetency to stand trial to determine whether the defendant has
  been restored to competency.
         (b)  The court may hold a hearing on a motion to determine
  whether the defendant has been restored to competency or on the
  court's decision on its own motion to inquire into restoration of
  competency, and shall hold a hearing if a motion and any supporting
  material establish good reason to believe the defendant may have
  been restored to competency.
         (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.
         (d)  If the head of a facility or outpatient treatment
  provider to which the defendant was committed as a result of a
  finding of incompetency to stand trial has provided an opinion that
  the defendant has regained competency, competency is presumed at a
  hearing under this subchapter and continuing incompetency must be
  proved by a preponderance of the evidence.
         (e)  If the head of a facility or outpatient treatment
  provider has not provided an opinion described by Subsection (d),
  incompetency is presumed at a hearing under this subchapter and the
  defendant's competency must be proved by a preponderance of the
  evidence.
         SECTION 18.  Article 46B.117, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46B.117.  DISPOSITION ON DETERMINATION OF INCOMPETENCY.  
  [(a)]  If a defendant under order of commitment to a facility or
  outpatient treatment program 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 or outpatient
  treatment program.
         [(b)     If a defendant not under order of commitment is found
  to not have been restored to competency to stand trial, the court
  shall order the defendant's custody status to remain unchanged.]
         SECTION 19.  Article 46B.171, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46B.171.  TRANSCRIPTS AND OTHER RECORDS.  (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, outpatient
  treatment program, or residential care facility.
         (b)  On the request of the defendant or the attorney
  representing the defendant, a mental health facility, an outpatient
  treatment program, or a residential care facility shall provide to
  the defendant or the attorney copies of the facility's records
  regarding the defendant.
         SECTION 20.  Section 574.107, Health and Safety Code, is
  amended to read as follows:
         Sec. 574.107.  COSTS.  (a)  The costs for a hearing 
  [hearings] under this subchapter shall be paid in accordance with
  Sections 571.017 and 571.018.
         (b)  The county in which the applicable criminal charges are
  pending or were adjudicated shall pay as provided by Subsection (a)
  the costs of a hearing that is held under Section 574.106 to
  evaluate the court-ordered administration of psychoactive
  medication to:
               (1)  a patient ordered to receive inpatient mental
  health services as described by Section 574.106(a)(1) after having
  been determined to be incompetent to stand trial or having been
  acquitted of an offense by reason of insanity; or
               (2)  a patient who:
                     (A)  is awaiting trial after having been
  determined to be competent to stand trial; and
                     (B)  was ordered to receive inpatient mental
  health services as described by Section 574.106(a)(2).
         SECTION 21.  Subsection (c), Article 46B.084, Code of
  Criminal Procedure, is repealed.
         SECTION 22.  (a)  Except as provided by Subsection (b) of
  this section, the change in law made by this Act applies only to a
  defendant with respect to which any proceeding under Chapter 46B,
  Code of Criminal Procedure, is conducted on or after the effective
  date of this Act.
         (b)  The change in law made by this Act in amending Section
  574.107, Health and Safety Code, applies only to a hearing under
  Section 574.106, Health and Safety Code, that commences on or after
  the effective date of this Act.  A hearing under Section 574.106,
  Health and Safety Code, that commences before the effective date of
  this Act is covered by the law in effect when the hearing commenced,
  and the former law is continued in effect for this purpose.
         SECTION 23.  This Act takes effect September 1, 2007.
 
 
 
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
         I hereby certify that S.B. No. 867 passed the Senate on
  April 12, 2007, by the following vote:  Yeas 31, Nays 0.
 
 
  ______________________________
  Secretary of the Senate    
 
         I hereby certify that S.B. No. 867 passed the House on
  May 17, 2007, by the following vote:  Yeas 146, Nays 0, two
  present not voting.
 
 
  ______________________________
  Chief Clerk of the House   
 
 
 
  Approved:
 
  ______________________________ 
              Date
 
 
  ______________________________ 
            Governor