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  H.B. No. 2725
 
 
 
 
AN ACT
  relating to the determination of incompetency in criminal cases.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 2(a), Article 42.03, Code of Criminal
  Procedure, is amended to read as follows:
         (a)  In all criminal cases the judge of the court in which the
  defendant is convicted shall give the defendant credit on the
  defendant's sentence for the time that the defendant has spent:
               (1)  in jail for the case, including confinement served
  as described by Article 46B.009 and excluding [other than]
  confinement served as a condition of community supervision, from
  the time of his arrest and confinement until his sentence by the
  trial court; [or]
               (2)  in a substance abuse treatment facility operated
  by the Texas Department of Criminal Justice under Section 493.009,
  Government Code, or another court-ordered residential program or
  facility as a condition of deferred adjudication community
  supervision granted in the case if the defendant successfully
  completes the treatment program at that facility; or
               (3)  confined in a mental health facility or
  residential care facility as described by Article 46B.009.
         SECTION 2.  Article 46B.004, Code of Criminal Procedure, is
  amended by adding Subsection (c-1) to read as follows:
         (c-1)  A suggestion of incompetency is the threshold
  requirement for an informal inquiry under Subsection (c) and may
  consist solely of a representation from any credible source that
  the defendant may be incompetent. A further evidentiary showing is
  not required to initiate the inquiry, and the court is not required
  to have a bona fide doubt about the competency of the defendant.  
  Evidence suggesting the need for an informal inquiry may be based on
  observations made in relation to one or more of the factors
  described by Article 46B.024 or on any other indication that the
  defendant is incompetent within the meaning of Article 46B.003.
         SECTION 3.  Article 46B.009, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46B.009.  TIME CREDITS.  A court sentencing a person
  convicted of a criminal offense shall credit to the term of the
  person's sentence each of the following periods for which [the
  time] the person may be [is] confined in a mental health facility,
  residential care facility, or jail:
               (1)  any period of confinement that occurs pending a
  determination [trial] under Subchapter C as to the defendant's
  competency to stand trial; and
               (2)  any period of confinement that occurs between the
  date of any initial determination of the defendant's incompetency
  under that subchapter and the date the person is transported to jail
  following a final judicial determination that the person has been
  restored to competency.
         SECTION 4.  Article 46B.0095, Code of Criminal Procedure, is
  amended to read as follows:
         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 Subchapter D or E
  or any other provision of 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 conducted under Subtitle C or D,
  Title 7, Health and Safety Code, by a court with probate
  jurisdiction.
         (c)  The cumulative period described by Subsection (a):
               (1)  begins on the date the initial order of commitment
  or initial order for outpatient treatment program participation is
  entered under this chapter; and
               (2)  in addition to any inpatient or outpatient
  treatment periods described by Subsection (a), includes any time
  that, following the entry of an order described by Subdivision (1),
  the defendant is confined in a correctional facility, as defined by
  Section 1.07, Penal Code, or is otherwise in the custody of the
  sheriff during or while awaiting, as applicable:
                     (A)  the defendant's transfer to a mental hospital
  or other inpatient or residential facility;
                     (B)  the defendant's release on bail to
  participate in an outpatient treatment program; or
                     (C)  a criminal trial following any temporary
  restoration of the defendant's competency to stand trial.
         (d)  The court shall credit to the cumulative period
  described by Subsection (a) any time that a defendant, following
  arrest for the offense for which the defendant was to be tried, is
  confined in a correctional facility, as defined by Section 1.07,
  Penal Code, before the initial order of commitment or initial order
  for outpatient treatment program participation is entered under
  this chapter.
         SECTION 5.  Article 46B.010, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46B.010.  MANDATORY DISMISSAL OF MISDEMEANOR CHARGES.
  If a court orders that a defendant charged with a misdemeanor
  punishable by confinement be committed to a mental hospital or
  other inpatient or residential facility, participate in an
  outpatient treatment program, or be subjected to both inpatient and
  outpatient treatment, [the commitment of or participation in an
  outpatient treatment program by 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:
               (1)  on the motion of the attorney representing the
  state, the court shall dismiss the charge; or
               (2)  on the motion of the attorney representing the
  defendant and notice to the attorney representing the state, the
  court:
                     (A)  shall set the matter to be heard not later
  than the 10th day after the date of filing of the motion; and
                     (B)  may dismiss the charge on a finding that the
  defendant was not tried before the expiration of the maximum period
  of restoration[, the court on the motion of the attorney
  representing the state shall dismiss the charge].
         SECTION 6.  Article 46B.022(a), Code of Criminal Procedure,
  is amended to read as follows:
         (a)  To qualify for appointment under this subchapter as an
  expert, a psychiatrist or psychologist must:
               (1)  as appropriate, be a physician licensed in this
  state or be a psychologist licensed in this state who has a doctoral
  degree in psychology; and
               (2)  have the following certification [or experience]
  or training:
                     (A)  as appropriate, certification by:
                           (i)  the American Board of Psychiatry and
  Neurology with added or special qualifications in forensic
  psychiatry; or
                           (ii)  the American Board of Professional
  Psychology in forensic psychology; or
                     (B)  [experience or] training consisting of:
                           (i)  at least 24 hours of specialized
  forensic training relating to incompetency or insanity
  evaluations; and
                           (ii)  at least [for an appointment made
  before January 1, 2005, at least five years of experience before
  January 1, 2004, in performing criminal forensic evaluations for
  courts; or
                           [(iii)     for an appointment made on or after
  January 1, 2005, at least five years of experience before January 1,
  2004, in performing criminal forensic evaluations for courts and]
  eight [or more] hours of continuing education relating to forensic
  evaluations, completed in the 12 months preceding the appointment
  [and documented with the court].
         SECTION 7.  Article 46B.024, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46B.024.  FACTORS CONSIDERED IN EXAMINATION. During an
  examination under this subchapter and in any report based on that
  examination, an expert shall consider, in addition to other issues
  determined relevant by the expert, the following:
               (1)  the capacity of the defendant during criminal
  proceedings to:
                     (A)  rationally understand the charges against
  the defendant and the potential consequences of the pending
  criminal proceedings;
                     (B)  disclose to counsel pertinent facts, events,
  and states of mind;
                     (C)  engage in a reasoned choice of legal
  strategies and options;
                     (D)  understand the adversarial nature of
  criminal proceedings;
                     (E)  exhibit appropriate courtroom behavior; and
                     (F)  testify;
               (2)  as supported by current indications and the
  defendant's personal history, whether the defendant:
                     (A)  has a [diagnosable] mental illness; or
                     (B)  [or] is a person with mental retardation;
               (3)  whether the identified condition has lasted or is
  expected to last continuously for at least one year;
               (4)  the degree of impairment resulting from [impact
  of] the mental illness or mental retardation, if existent, and the
  specific impact on the defendant's capacity to engage with counsel
  in a reasonable and rational manner; and
               (5) [(4)]  if the defendant is taking psychoactive or
  other medication:
                     (A)  whether the medication is necessary to
  maintain the defendant's competency; and
                     (B)  the effect, if any, of the medication on the
  defendant's appearance, demeanor, or ability to participate in the
  proceedings.
         SECTION 8.  Article 46B.025, Code of Criminal Procedure, is
  amended by amending Subsections (a) and (b) and adding Subsection
  (a-1) to read as follows:
         (a)  An expert's report to the court must state an opinion on
  a defendant's competency or incompetency to stand trial or explain
  why the expert is unable to state such an opinion and must also:
               (1)  identify and address specific issues referred to
  the expert for evaluation;
               (2)  document that the expert explained to the
  defendant the purpose of the evaluation, the persons to whom a
  report on the evaluation is provided, and the limits on rules of
  confidentiality applying to the relationship between the expert and
  the defendant;
               (3)  in specific [general] terms, describe procedures,
  techniques, and tests used in the examination, [and] the purpose of
  each procedure, technique, or test, and the conclusions reached;
  and
               (4)  state the expert's clinical observations,
  findings, and opinions on each specific issue referred to the
  expert by the court, state the specific criteria supporting the
  expert's diagnosis, and state specifically any issues on which the
  expert could not provide an opinion.
         (a-1)  The expert's opinion on the defendant's competency or
  incompetency may not be based solely on the defendant's refusal to
  communicate during the examination.
         (b)  If in the opinion of an expert appointed under Article
  46B.021 the defendant is incompetent to proceed, the expert shall
  state in the report:
               (1)  the symptoms, exact nature, severity, and expected
  duration of the deficits resulting from the defendant's mental
  illness or mental retardation, if any, and the [that] impact of the
  identified condition on the factors listed in Article 46B.024[,
  contributing to the defendant's incompetency]; [and]
               (2)  an estimate of the period needed to restore the
  defendant's competency, including whether the defendant is likely
  to be restored to competency in the foreseeable future; and
               (3)  prospective treatment options, if any,
  appropriate for the defendant.
         SECTION 9.  Article 46B.071, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46B.071.  OPTIONS ON DETERMINATION OF INCOMPETENCY.
  (a) Except as provided by Subsection (b), on [On] a determination
  that a defendant is incompetent to stand trial, the court shall:
               (1)  commit the defendant to a facility under Article
  46B.073; or
               (2)  release the defendant on bail under Article
  46B.072.
         (b)  On a determination that a defendant is incompetent to
  stand trial and is unlikely to be restored to competency in the
  foreseeable future, the court shall:
               (1)  proceed under Subchapter E or F; or
               (2)  release the defendant on bail as permitted under
  Chapter 17.
         SECTION 10.  Article 46B.072, Code of Criminal Procedure, is
  amended by amending Subsections (a), (b), and (c) and adding
  Subsection (a-1) to read as follows:
         (a)  This article applies only to a defendant who is subject
  to an initial restoration period based on Article 46B.071.
         (a-1)  Subject to conditions reasonably related to assuring
  public safety and the effectiveness of the defendant's treatment,
  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 the specific objective of attaining
  competency to stand trial and if an appropriate outpatient
  treatment program is available for the defendant, the court:
               (1)  may release 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.
         (b)  The court shall order a defendant released on bail under
  Subsection (a-1) [(a)] to participate in an outpatient treatment
  program for a period not to exceed 120 days.
         (c)  Notwithstanding Subsection (a-1) [(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.
         SECTION 11.  Articles 46B.073(a) and (b), Code of Criminal
  Procedure, are amended to read as follows:
         (a)  This article applies only to a defendant not released on
  bail who is subject to an initial restoration period based on
  Article 46B.071.
         (b)  For further examination and treatment toward the
  specific objective of the defendant attaining competency to stand
  trial, the [The] court shall commit a defendant described by
  Subsection (a) to a mental health facility or residential care
  facility for the applicable [a] period as follows:
               (1)  a period of not more than 60 days, if the defendant
  is charged with an offense punishable as a misdemeanor; or
               (2)  a period of not more than 120 days, if the
  defendant is charged with an offense punishable as a felony [not to
  exceed 120 days for further examination and treatment toward the
  specific objective of attaining competency to stand trial].
         SECTION 12.  Subchapter D, Chapter 46B, Code of Criminal
  Procedure, is amended by adding Article 46B.0755 to read as
  follows:
         Art. 46B.0755.  PROCEDURES ON CREDIBLE EVIDENCE OF IMMEDIATE
  RESTORATION. (a) Notwithstanding any other provision of this
  subchapter, if the court receives credible evidence indicating that
  the defendant has been restored to competency at any time after the
  defendant's incompetency trial under Subchapter C but before the
  defendant is transported under Article 46B.075 to a mental health
  facility, residential care facility, or outpatient treatment
  program, as applicable, the court may appoint disinterested experts
  to reexamine the defendant in accordance with Subchapter B. The
  court is not required to appoint the same expert or experts who
  performed the initial examination of the defendant under that
  subchapter.
         (b)  If after a reexamination of the defendant the applicable
  expert's report states an opinion that the defendant remains
  incompetent, the court's order under Article 46B.072 or 46B.073
  remains in effect, and the defendant shall be transported to the
  facility or outpatient treatment program as required by Article
  46B.075. If after a reexamination of the defendant the applicable
  expert's report states an opinion that the defendant has been
  restored to competency, the court shall withdraw its order under
  Article 46B.072 or 46B.073 and proceed under Subsection (c) or (d).
         (c)  The court shall find the defendant competent to stand
  trial and proceed in the same manner as if the defendant had been
  found restored to competency at a hearing if:
               (1)  both parties agree that the defendant is competent
  to stand trial; and
               (2)  the court concurs.
         (d)  The court shall hold a hearing to determine whether the
  defendant has been restored to competency if any party fails to
  agree or if the court fails to concur that the defendant is
  competent to stand trial. If a court holds a hearing under this
  subsection, on the request of the counsel for either party or the
  motion of the court, a jury shall make the competency
  determination. For purposes of the hearing, incompetency is
  presumed, and the defendant's competency must be proved by a
  preponderance of the evidence. If after the hearing the defendant
  is again found to be incompetent to stand trial, the court shall
  issue a new order under Article 46B.072 or 46B.073, as appropriate
  based on the defendant's current condition.
         SECTION 13.  Article 46B.077(a), 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 is
  likely to be restored to [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 14.  Article 46B.079, Code of Criminal Procedure, is
  amended to read as follows:
         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
  the initial [a] restoration period is to expire according to the
  terms of the order or under Article 46B.0095 or other applicable
  provisions of this chapter, 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 is not likely to [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 prescribed for [with
  which] the defendant [was treated for mental illness] while the
  defendant was 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. An explanation provided
  under this subsection must include a description of any evidence
  indicating a reduction in the severity of the defendant's symptoms
  or impairment.
         SECTION 15.  Articles 46B.080(b) and (c), Code of Criminal
  Procedure, are amended to read as follows:
         (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 initial restoration period
  will likely enable the facility or program to restore the defendant
  to competency within the period of the extension.
         (c)  The court may grant only one 60-day extension under this
  article in connection with the specific offense with which the
  defendant is charged [for a period of restoration ordered under
  this subchapter].
         SECTION 16.  Article 46B.084(a), Code of Criminal Procedure,
  is amended to read as follows:
         (a)  On the return of a defendant to the 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) and on
  other medical information or personal history information relating
  to the defendant. A[, unless any] party may object [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.  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).
         SECTION 17.  Articles 46B.086(a) and (c), Code of Criminal
  Procedure, are amended to read as follows:
         (a)  This article applies only to a defendant:
               (1)  who is determined under this chapter to be
  incompetent to stand trial;
               (2)  who either:
                     (A)  remains confined in a correctional facility,
  as defined by Section 1.07, Penal Code, for a period exceeding 72
  hours while awaiting transfer to an inpatient mental health
  facility, a residential care facility, or an outpatient treatment
  program;
                     (B)  is committed to an inpatient mental health
  facility or a residential care facility for the purpose of
  competency restoration;
                     (C)  is confined in a correctional facility while
  awaiting further criminal proceedings following competency
  restoration treatment; or
                     (D)  is subject to Article 46B.072, if the court
  has made the determinations required by Subsection (a-1) [(a)] of
  that article;
               (3)  for whom a correctional facility that employs or
  contracts with a licensed psychiatrist, an inpatient mental health
  facility, a residential care facility, or an outpatient treatment
  program provider has prepared a continuity of care plan that
  requires the defendant to take psychoactive medications; and
               (4)  who, after a hearing held under Section 574.106,
  Health and Safety Code, if applicable, has been found to not meet
  the criteria prescribed by Sections 574.106(a) and (a-1), Health
  and Safety Code, for court-ordered administration of psychoactive
  medications.
         (c)  The court, after notice and after a hearing held not
  later than the 10th day after the motion to compel medication is
  filed [fifth day after the defendant is returned to the committing
  court], may authorize the director of the correctional facility or
  the program provider, as applicable, to have the medication
  administered to the defendant, by reasonable force if necessary.  A
  hearing under this subsection may be conducted using an electronic
  broadcast system as provided by Article 46B.013.
         SECTION 18.  Article 46B.101, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 46B.101.  APPLICABILITY. This subchapter applies to a
  defendant against whom a court is required to proceed according to
  [under] Article 46B.084(e) or according to the court's appropriate
  determination under Article 46B.071.
         SECTION 19.  Article 46B.151(a), Code of Criminal Procedure,
  is amended to read as follows:
         (a)  If a court is required by Article 46B.084(f) or by its
  appropriate determination under Article 46B.071 to proceed under
  this subchapter, or if the court is 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 20.  The Department of State Health Services, in
  coordination with the Health and Human Services Commission, shall
  study the feasibility of providing home and community-based
  services, instead of institutional care, to persons with severe and
  persistent mental illness who have a history of more than one
  inpatient commitment under Chapter 46B, Code of Criminal Procedure.
  Not later than December 1, 2012, the department shall issue a report
  to the legislature regarding the results of the feasibility study.
         SECTION 21.  (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 whom any proceeding under Chapter 46B,
  Code of Criminal Procedure, is conducted on or after the effective
  date of this Act.
         (b)  Article 46B.004(c-1), Code of Criminal Procedure, as
  added by this Act, applies only to a motion suggesting a defendant's
  incompetency to stand trial made on or after the effective date of
  this Act. A motion suggesting a defendant's incompetency to stand
  trial made before the effective date of this Act is covered by the
  law in effect when the motion was made, and the former law is
  continued in effect for that purpose.
         SECTION 22.  This Act takes effect September 1, 2011.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 2725 was passed by the House on April
  26, 2011, by the following vote:  Yeas 148, Nays 0, 2 present, not
  voting; and that the House concurred in Senate amendments to H.B.
  No. 2725 on May 24, 2011, by the following vote:  Yeas 141, Nays 0,
  2 present, not voting.
 
  ______________________________
  Chief Clerk of the House   
 
         I certify that H.B. No. 2725 was passed by the Senate, with
  amendments, on May 19, 2011, by the following vote:  Yeas 31, Nays
  0.
 
  ______________________________
  Secretary of the Senate   
  APPROVED: __________________
                  Date       
   
           __________________
                Governor