Bill Text: TX HB3774 | 2013-2014 | 83rd Legislature | Introduced

---

Bill Title: Relating to the insanity defense and persons found not guilty by reason of insanity in a criminal case.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2013-03-21 - Referred to Criminal Jurisprudence [HB3774 Detail]

Download: Texas-2013-HB3774-Introduced.html

---

83R9807 KEL-F
By: Coleman H.B. No. 3774

A BILL TO BE ENTITLED
AN ACT
relating to the insanity defense and persons found not guilty by
reason of insanity in a criminal case.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 46B.021, Code of Criminal Procedure, is
amended by adding Subsection (g) to read as follows:
(g) An expert appointed under this subchapter to examine the
defendant with regard to the defendant's competency to stand trial
may not be appointed by the court to examine the defendant with
regard to the insanity defense under Chapter 46C.
SECTION 2. Article 46C.001, Code of Criminal Procedure, is
amended by adding Subdivision (2-a) to read as follows:
(2-a) "Least restrictive appropriate treatment
setting" means a setting that:
(A) is available;
(B) provides the acquitted person with the
greatest probability of improvement or cure; and
(C) is not any more restrictive of the acquitted
person's physical or social liberties than is necessary to provide
the person with the most effective care or treatment and to protect
adequately against any danger the patient may pose to the patient's
self or others.
SECTION 3. Article 46C.002, Code of Criminal Procedure, is
amended to read as follows:
Art. 46C.002. MAXIMUM PERIOD OF COMMITMENT DETERMINED BY
MAXIMUM TERM FOR OFFENSE. (a) A person acquitted by reason of
insanity may not be committed to a mental hospital or other
inpatient or residential care facility or ordered to receive
outpatient or community-based treatment [and supervision] under
Subchapter F for a cumulative period that exceeds the maximum term
provided by law for the offense for which the acquitted person was
tried.
(b) On expiration of that maximum term, the acquitted person
may be further confined in a mental hospital or other inpatient or
residential care facility or ordered to receive outpatient or
community-based treatment [and supervision] only under civil
commitment proceedings.
SECTION 4. Subchapter B, Chapter 46C, Code of Criminal
Procedure, is amended by adding Articles 46C.053, 46C.054, and
46C.055 to read as follows:
Art. 46C.053. APPOINTMENT OF AND REPRESENTATION BY COUNSEL.
(a) A defendant is entitled to representation by counsel before any
court-ordered sanity evaluation and during any proceeding at which
it is suggested that the defendant may be not guilty by reason of
insanity.
(b) A defendant who is found not guilty by reason of
insanity is entitled to representation by counsel during any
proceeding to determine whether the acquitted person should receive
court-ordered mental health services under this chapter or under
Subtitle C, Title 7, Health and Safety Code, or be committed to a
residential care facility to receive mental retardation services
under Subtitle D, Title 7, Health and Safety Code.
(c) An attorney who represents a defendant in a criminal
trial and who plans to offer evidence of the insanity defense must
have completed at least three hours of continuing legal education
related to Chapter 46B in the 12-month period preceding appointment
or in the three-month period following appointment.
(d) An attorney representing an acquitted person during any
proceeding under this chapter, including the person's criminal
trial, must have completed at least three hours of continuing legal
education related to this chapter in the 12-month period preceding
appointment or in the three-month period following appointment.
(e) The court shall inform the attorney in writing of the
attorney's duties under Article 46C.054.
Art. 46C.054. DUTIES OF ATTORNEY. (a) The attorney for the
defendant shall discuss thoroughly with the defendant the relevant
law, the facts of the case, all possible defense strategies, and, if
appropriate, the grounds on which the insanity defense will be
raised.
(b) Before raising the insanity defense, the attorney shall
advise the defendant of the benefits and risks involved with
raising the insanity defense, the consequences related to
prevailing on the defense, and the maximum term of the court's
jurisdiction if the defendant is acquitted of the offense.
(c) Regardless of the attorney's personal opinion, the
attorney shall use all reasonable efforts within the bounds of law
to advocate for the least restrictive appropriate treatment setting
alternatives at each of the following hearings:
(1) the hearing on disposition under Article 46C.253;
(2) the annual commitment renewal hearing under
Article 46C.261; or
(3) a hearing on the modification of the commitment
order under Article 46C.262.
(d) Before each hearing described by Subsection (c), the
attorney for the acquitted person shall:
(1) review the application for court-ordered
treatment, the certificates of medical examination for mental
illness, the acquitted person's relevant medical records, and any
other relevant records;
(2) interview each relevant witness, regardless of
whether the witness testifies at the hearing, unless prohibited by
law; and
(3) explore the least restrictive appropriate
treatment setting alternatives to court-ordered inpatient mental
health services.
Art. 46C.055. WAIVER OF HEARING. (a) The acquitted person
must be present at any hearing listed under Article 46C.054(c)
unless the attorney for the acquitted person, at least three days
before the date of the hearing, files with the court a joint sworn
statement that is made by the acquitted person and the acquitted
person's attorney and that clearly states on the face of the
statement:
(1) that the attorney has explained the purposes of
the hearing and the consequences of not being present at the
hearing, including the possibility that the acquitted person may be
ordered to receive inpatient treatment or residential care services
or outpatient or community-based treatment for a period that could
extend to one year;
(2) that the acquitted person is knowingly and
voluntarily waiving the person's right to attend the hearing; and
(3) if applicable, that the acquitted person agrees to
waive any right to a jury trial.
(b) For purposes of Subsection (a), an acquitted person is
considered present at a hearing if the acquitted person
participates via videoconference or teleconference.
SECTION 5. Articles 46C.102(a) and (b), Code of Criminal
Procedure, are amended to read as follows:
(a) The court may appoint qualified psychiatrists or
psychologists as experts under this chapter. To qualify for
appointment under this subchapter as an expert, a psychiatrist or
psychologist must:
(1) as appropriate, be a physician licensed in this
state or be a psychologist licensed in this state who has a doctoral
degree in psychology; and
(2) have the following certification [or experience]
or training:
(A) as appropriate, certification by:
(i) the American Board of Psychiatry and
Neurology with added or special qualifications in forensic
psychiatry; or
(ii) the American Board of Professional
Psychology in forensic psychology; or
(B) [experience or] training consisting of:
(i) at least 24 hours of specialized
forensic training relating to incompetency or insanity
evaluations; and
(ii) at least [five years of experience in
performing criminal forensic evaluations for courts; and
[(iii)] eight [or more] hours of continuing
education relating to forensic evaluations, completed in the 12
months preceding the appointment [and documented with the court].
(b) In addition to meeting qualifications required by
Subsection (a), to be appointed as an expert a psychiatrist or
psychologist must have completed a total of six hours of approved
[required] continuing education [in courses] in forensic
psychiatry or psychology[, as appropriate,] in the 24 months
preceding the appointment.
SECTION 6. Article 46C.103, Code of Criminal Procedure, is
amended to read as follows:
Art. 46C.103. COMPETENCY TO STAND TRIAL: CONCURRENT
APPOINTMENTS PROHIBITED [APPOINTMENT]. [(a)] An expert appointed
under this subchapter to examine the defendant with regard to the
insanity defense [also] may not be appointed by the court to examine
the defendant with regard to the defendant's competency to stand
trial under Chapter 46B[, if the expert files with the court
separate written reports concerning the defendant's competency to
stand trial and the insanity defense].
[(b) Notwithstanding Subsection (a), an expert may not
examine the defendant for purposes of determining the defendant's
sanity and may not file a report regarding the defendant's sanity if
in the opinion of the expert the defendant is incompetent to
proceed.]
SECTION 7. Article 46C.154, Code of Criminal Procedure, is
amended to read as follows:
Art. 46C.154. INFORMING JURY REGARDING CONSEQUENCES OF
ACQUITTAL. The court shall provide instruction to the jury to
inform the jury [, the attorney representing the state, or the
attorney for the defendant may not inform a juror or a prospective
juror] of the consequences to the defendant if a verdict of not
guilty by reason of insanity is returned, in substantially the
following form:
"A jury during its deliberations must never consider or
speculate concerning matters relating to the consequences of its
verdict. However, because of the lack of common knowledge
regarding the consequences of a verdict of 'not guilty by reason of
insanity,' I charge you that if you render this verdict there will
be hearings as to the defendant's present mental condition and,
where appropriate, involuntary commitment proceedings."[.]
SECTION 8. Article 46C.158, Code of Criminal Procedure, is
amended to read as follows:
Art. 46C.158. CONTINUING JURISDICTION OF DANGEROUS
ACQUITTED PERSON. If the court finds that the offense of which the
person was acquitted involved conduct that caused serious bodily
injury to another person, placed another person in imminent danger
of serious bodily injury, or consisted of a threat of serious bodily
injury to another person through the use of a deadly weapon, the
court retains jurisdiction over the acquitted person until either:
(1) the court discharges the person and terminates its
jurisdiction under Article 46C.268; or
(2) the cumulative total period of
institutionalization and outpatient or community-based treatment
[and supervision] under the court's jurisdiction equals the maximum
term provided by law for the offense of which the person was
acquitted by reason of insanity and the court's jurisdiction is
automatically terminated under Article 46C.269.
SECTION 9. Article 46C.252(c), Code of Criminal Procedure,
is amended to read as follows:
(c) The report must address:
(1) whether the acquitted person has a mental illness
or mental retardation and, if so, whether the mental illness or
mental retardation is severe;
(2) whether as a result of any severe mental illness or
mental retardation the acquitted person is likely to cause serious
harm to another;
(3) whether as a result of any impairment the
acquitted person is subject to commitment under Subtitle C or D,
Title 7, Health and Safety Code;
(4) prospective treatment [and supervision] options,
if any, appropriate for the acquitted person; and
(5) whether any required treatment [and supervision]
can be safely and effectively provided as outpatient or
community-based treatment [and supervision].
SECTION 10. Article 46C.253, Code of Criminal Procedure, is
amended by amending Subsections (b) and (d) and adding Subsection
(d-1) to read as follows:
(b) At the hearing, the court shall address:
(1) whether the person acquitted by reason of insanity
has a severe mental illness or mental retardation;
(2) whether as a result of any mental illness or mental
retardation the person is likely to cause serious harm to another;
and
(3) whether appropriate treatment [and supervision]
for any mental illness or mental retardation rendering the person
dangerous to another can be safely and effectively provided as
outpatient or community-based treatment [and supervision].
(d) The court shall order the acquitted person to receive
outpatient or community-based treatment [and supervision] under
Article 46C.257 if the grounds required for that order are
established.
(d-1) Provided that the burden of proof is satisfied and the
commitment requirements are met, the court shall order the
acquitted person into the least restrictive appropriate treatment
setting.
SECTION 11. Article 46C.254, Code of Criminal Procedure, is
amended to read as follows:
Art. 46C.254. EFFECT OF STABILIZATION ON TREATMENT REGIMEN.
If an acquitted person is stabilized on a treatment regimen,
including medication and other treatment modalities, rendering the
person no longer likely to cause serious harm to another, inpatient
treatment or residential care may be found necessary to protect the
safety of others only if:
(1) the person would become likely to cause serious
harm to another if the person fails to follow the treatment regimen
on an Order to Receive Outpatient or Community-Based Treatment [and
Supervision]; and
(2) under an Order to Receive Outpatient or
Community-Based Treatment [and Supervision] either:
(A) the person is likely to fail to comply with an
available regimen of outpatient or community-based treatment, as
determined by the person's insight into the need for medication,
the number, severity, and controllability of side effects, the
availability of support and treatment programs for the person from
community members, and other appropriate considerations; or
(B) a regimen of outpatient or community-based
treatment will not be available to the person.
SECTION 12. Article 46C.255(b), Code of Criminal Procedure,
is amended to read as follows:
(b) The following proceedings may not be held before a jury:
(1) a proceeding to determine outpatient or
community-based treatment [and supervision] under Article 46C.262;
or
(2) a proceeding to determine modification or
revocation of outpatient or community-based treatment [and
supervision] under Article 46C.267.
SECTION 13. Article 46C.256, Code of Criminal Procedure, is
amended by amending Subsection (a) and adding Subsection (a-1) to
read as follows:
(a) The court shall order the acquitted person committed to
a mental hospital or other appropriate facility for inpatient
treatment or residential care if the state establishes by clear and
convincing evidence that:
(1) the person has a severe mental illness or mental
retardation;
(2) the person, as a result of that mental illness or
mental retardation, is likely to cause serious bodily injury to
another if the person is not provided with treatment [and
supervision]; and
(3) inpatient treatment or residential care is
necessary to protect the safety of others.
(a-1) To be clear and convincing under Subsection (a), the
evidence must include expert opinion and testimony evidence of a
recent overt act or a continuing pattern of behavior that tends to
confirm the substance of Subsections (a)(1), (2), and (3).
SECTION 14. Article 46C.257, Code of Criminal Procedure, is
amended to read as follows:
Art. 46C.257. ORDER TO RECEIVE OUTPATIENT OR
COMMUNITY-BASED TREATMENT [AND SUPERVISION]. (a) The court shall
order the acquitted person to receive outpatient or community-based
treatment [and supervision] if:
(1) the state establishes by clear and convincing
evidence that the person:
(A) has a severe mental illness or mental
retardation; and
(B) as a result of that mental illness or mental
retardation is likely to cause serious bodily injury to another if
the person is not provided with treatment [and supervision]; and
(2) the state fails to establish by clear and
convincing evidence that inpatient treatment or residential care is
necessary to protect the safety of others.
(b) The order of commitment to outpatient or
community-based treatment [and supervision] expires on the first
anniversary of the date the order is issued but is subject to
renewal as provided by Article 46C.261.
SECTION 15. Subchapter F, Chapter 46C, Code of Criminal
Procedure, is amended by adding Article 46C.2575 to read as
follows:
Art. 46C.2575. WAIVER OF EVIDENCE GIVEN BY EXPERT. Only the
acquitted person may waive expert opinion and testimony evidence
under this subchapter.
SECTION 16. Articles 46C.258(a) and (b), Code of Criminal
Procedure, are amended to read as follows:
(a) The head of the facility to which an acquitted person is
committed has, during the commitment period, a continuing
responsibility to determine:
(1) whether the acquitted person continues to have a
severe mental illness or mental retardation and is likely to cause
serious harm to another because of any severe mental illness or
mental retardation; and
(2) if so, whether treatment [and supervision] cannot
be safely and effectively provided as outpatient or community-based
treatment [and supervision].
(b) The head of the facility must notify the committing
court and seek modification of the order of commitment if the head
of the facility determines that an acquitted person no longer has a
severe mental illness or mental retardation, is no longer likely to
cause serious harm to another, or that treatment [and supervision]
can be safely and effectively provided as outpatient or
community-based treatment [and supervision].
SECTION 17. Article 46C.259, Code of Criminal Procedure, is
amended to read as follows:
Art. 46C.259. STATUS OF COMMITTED PERSON. If an acquitted
person is committed under this subchapter, the person's status as a
patient or resident is governed by Subtitle C or D, Title 7, Health
and Safety Code, except that:
(1) transfer to a nonsecure unit is governed by
Article 46C.260;
(2) modification of the order to direct outpatient or
community-based treatment [and supervision] is governed by Article
46C.262; and
(3) discharge is governed by Article 46C.268.
SECTION 18. Articles 46C.260(a), (b), (c), and (d), Code of
Criminal Procedure, are amended to read as follows:
(a) A person committed to a facility under this subchapter
shall be committed to either the maximum security unit of any
facility designated by the department or a nonsecure unit of any
facility designated by the department.
(b) A person committed under this subchapter shall be
transferred to the [maximum security] unit designated by the
department immediately on the entry of the order of commitment.
(c) Unless the person is determined to be manifestly
dangerous by a review board within the department, not later than
the 60th day following the date of the person's arrival at the
applicable [maximum security] unit the person shall be transferred
to a nonsecure unit of a facility designated by the department or
the Department of Aging and Disability Services, as appropriate.
(d) The commissioner shall appoint a review board of five
members, including one psychiatrist licensed to practice medicine
in this state and two persons who work directly with persons with
mental illnesses or with mental retardation, to determine whether
the person is manifestly dangerous and, as a result of the danger
the person presents, requires [continued] placement in a maximum
security unit.
SECTION 19. The heading to Article 46C.261, Code of
Criminal Procedure, is amended to read as follows:
Art. 46C.261. RENEWAL OF ORDERS FOR INPATIENT COMMITMENT OR
OUTPATIENT OR COMMUNITY-BASED TREATMENT [AND SUPERVISION].
SECTION 20. Article 46C.261, Code of Criminal Procedure, is
amended by amending Subsections (a), (b), (f), (h), and (i) and
adding Subsections (j) and (k) to read as follows:
(a) A court that orders an acquitted person committed to
inpatient treatment or orders outpatient or community-based
treatment [and supervision] annually shall determine whether to
renew the order.
(b) Not later than the 30th day before the date an order is
scheduled to expire, the institution to which a person is
committed, the person responsible for providing outpatient or
community-based treatment [and supervision], or the attorney
representing the state may file a request that the order be
renewed. The request must explain in detail the reasons why the
person requests renewal under this article. A request to renew an
order committing the person to inpatient treatment must also
explain in detail why outpatient or community-based treatment [and
supervision] is not appropriate.
(f) If a hearing is held, the acquitted person shall [may]
be transferred from the facility to which the [acquitted] person
was committed to a jail as [for purposes of participating in the
hearing only if] necessary but not earlier than 72 hours before the
hearing begins. If the order is renewed, the person shall be
transferred back to the facility immediately on renewal of the
order.
(h) A court shall renew an [the] order for inpatient or
residential care services only if the court finds that the state
[party who requested the renewal] has established by clear and
convincing evidence the requirements under Article 46C.256 [that
continued mandatory supervision and treatment are appropriate. A
renewed order authorizes continued inpatient commitment or
outpatient or community-based treatment and supervision for not
more than one year].
(i) The court, on application for renewal of an [order for
inpatient or residential care services, may modify the order to
provide for] outpatient or community-based treatment order, may
renew the order [and supervision] if the requirements under Article
46C.257 are satisfied [court finds the acquitted person has
established by a preponderance of the evidence that treatment and
supervision can be safely and effectively provided as outpatient or
community-based treatment and supervision].
(j) A renewed order authorizes continued inpatient
commitment or outpatient or community-based treatment for not more
than one year.
(k) If a party fails to comply with the requirements in
Subsection (b) or (c), or the applicable order expires, then the
party requesting the renewal of the order must proceed under
Article 46C.253.
SECTION 21. The heading to Article 46C.262, Code of
Criminal Procedure, is amended to read as follows:
Art. 46C.262. COURT-ORDERED OUTPATIENT OR COMMUNITY-BASED
TREATMENT [AND SUPERVISION] AFTER INPATIENT COMMITMENT.
SECTION 22. Articles 46C.262(a) and (f), Code of Criminal
Procedure, are amended to read as follows:
(a) An acquitted person, the head of the facility to which
the acquitted person is committed, or the attorney representing the
state may request that the court modify an order for inpatient
treatment or residential care to order outpatient or
community-based treatment [and supervision].
(f) The court shall modify the commitment order to direct
outpatient or community-based treatment [and supervision] if at the
hearing the acquitted person establishes by a preponderance of the
evidence that treatment [and supervision] can be safely and
effectively provided as outpatient or community-based treatment
[and supervision].
SECTION 23. Article 46C.263, Code of Criminal Procedure, is
amended to read as follows:
Art. 46C.263. COURT-ORDERED OUTPATIENT OR COMMUNITY-BASED
TREATMENT [AND SUPERVISION]. (a) The court may order an acquitted
person to participate in an outpatient or community-based regimen
of treatment [and supervision]:
(1) as an initial matter under Article 46C.253;
(2) on renewal of an order of commitment under Article
46C.261; or
(3) after a period of inpatient treatment or
residential care under Article 46C.262.
(b) An acquitted person may be ordered to participate in an
outpatient or community-based regimen of treatment [and
supervision] only if:
(1) the court receives and approves an outpatient or
community-based treatment plan that comprehensively provides for
the outpatient or community-based treatment [and supervision]; and
(2) the court finds that the outpatient or
community-based treatment [and supervision] provided for by the
plan will be available to and provided to the acquitted person.
(c) The order may require the person to participate in a
prescribed regimen of medical, psychiatric, or psychological care
or treatment, and the regimen may include:
(1) care coordination and any other treatment or
services considered medically necessary to treat the person's
mental illness and medically necessary to assist the patient in
functioning safely in the outpatient or community-based placement;
(2) medically necessary medication; and
(3) supported housing [treatment with psychoactive
medication].
(d) Subsection (c)(2) does not authorize a person to
administer medication to a patient who refuses to take the
medication voluntarily, except in cases of emergency, as defined
under Subchapter G, Chapter 574, Health and Safety Code. Emergency
treatment under this subsection may not include long-acting
injectable medications.
(e) The prescribed regimen must be incorporated into the
court order, and the acquitted person is entitled to petition the
court for specific enforcement of the court order.
(f) [(d)] The court may order that community supervision of
the acquitted person be provided and funded by the appropriate
community supervision and corrections department or the [facility
administrator of a community center that provides mental health or
mental retardation services.
[(e) The court may order the acquitted person to participate
in a supervision program funded by the] Texas Correctional Office
on Offenders with Medical or Mental Impairments. For purposes of
this subsection, "community supervision" means a court's placement
of an acquitted person under public safety conditions designed to
monitor the acquitted person's compliance with non-treatment-based
conditions of the commitment order.
(g) A treatment provider is not responsible for community
supervision of the acquitted person.
(h) [(f)] An order under this article must identify the
person responsible for administering an ordered regimen of
outpatient or community-based treatment [and supervision]. At
least seven days before the entry of the order, the responsible
person shall submit to the court a general program of the care or
treatment regimen to be provided to the acquitted person consistent
with the care or treatment regimen authorized by Subsection (c).
(i) [(g)] In determining whether an acquitted person should
be ordered to receive outpatient or community-based treatment [and
supervision] rather than inpatient care or residential treatment,
the court shall have as its primary concern the protection of
society. Consistent with this chapter, the court shall order the
acquitted person into the least restrictive appropriate treatment
setting.
SECTION 24. Article 46C.264, Code of Criminal Procedure, is
amended to read as follows:
Art. 46C.264. LOCATION OF COURT-ORDERED OUTPATIENT OR
COMMUNITY-BASED TREATMENT [AND SUPERVISION]. (a) The court may
order the outpatient or community-based treatment [and
supervision] to be provided in any appropriate county where the
necessary resources are available.
(b) The court may not designate an outpatient or
community-based treatment provider as responsible for
administering the court-ordered treatment without the consent of
the provider. [This article does not supersede any requirement
under the other provisions of this subchapter to obtain the consent
of a treatment and supervision provider to administer the
court-ordered outpatient or community-based treatment and
supervision.]
SECTION 25. Article 46C.265, Code of Criminal Procedure, is
amended to read as follows:
Art. 46C.265. [SUPERVISORY] RESPONSIBILITY OF [FOR]
OUTPATIENT OR COMMUNITY-BASED TREATMENT PROVIDER [AND
SUPERVISION]. (a) The person responsible for administering a
regimen of outpatient or community-based treatment [and
supervision] shall be solely responsible for:
(1) monitoring [monitor] the condition of the
acquitted person; and
(2) determining [determine] whether the acquitted
person is complying with the regimen of treatment [and
supervision].
(b) The person responsible for administering a regimen of
outpatient or community-based treatment [and supervision] shall
notify the court ordering that treatment, [and supervision and] the
attorney representing the state, and the acquitted person's
attorney if the person:
(1) fails to comply with the regimen; and
(2) becomes likely to cause serious harm to another.
SECTION 26. The heading to Article 46C.266, Code of
Criminal Procedure, is amended to read as follows:
Art. 46C.266. MODIFICATION OR REVOCATION OF ORDER FOR
OUTPATIENT OR COMMUNITY-BASED TREATMENT [AND SUPERVISION].
SECTION 27. Articles 46C.266(a), (b), and (c), Code of
Criminal Procedure, are amended to read as follows:
(a) The court, on its own motion or the motion of any
interested person and after notice to the acquitted person and a
hearing, may modify or revoke court-ordered outpatient or
community-based treatment [and supervision].
(b) At the hearing, the court without a jury shall determine
whether the state has established clear and convincing evidence
that:
(1) the acquitted person failed to comply with the
regimen in a manner or under circumstances indicating the person
will become likely to cause serious harm to another if the person is
provided continued outpatient or community-based treatment [and
supervision]; or
(2) the acquitted person has become likely to cause
serious harm to another if provided continued outpatient or
community-based treatment [and supervision].
(c) On a determination under Subsection (b), the court may
take any appropriate action, including:
(1) revoking court-ordered outpatient or
community-based treatment [and supervision] and ordering the
person committed for inpatient or residential care; or
(2) imposing additional or more stringent terms on
continued outpatient or community-based treatment.
SECTION 28. The heading to Article 46C.267, Code of
Criminal Procedure, is amended to read as follows:
Art. 46C.267. DETENTION PENDING PROCEEDINGS TO MODIFY OR
REVOKE ORDER FOR OUTPATIENT OR COMMUNITY-BASED TREATMENT [AND
SUPERVISION].
SECTION 29. Articles 46C.267(a), (b), (d), and (e), Code of
Criminal Procedure, are amended to read as follows:
(a) The state or the head of the facility or other person
responsible for administering a regimen of outpatient or
community-based treatment [and supervision] may file a sworn
application with the court for the detention of an acquitted person
receiving court-ordered outpatient or community-based treatment
[and supervision]. The application must state that the person
meets the criteria of Article 46C.266 and provide a detailed
explanation of that statement.
(b) If the court determines that the application
establishes probable cause to believe the order for outpatient or
community-based treatment [and supervision] should be revoked, the
court shall issue an order to an on-duty peace officer authorizing
the acquitted person to be taken into custody and brought before the
court.
(d) When an acquitted person is brought before the court,
the court shall determine whether there is probable cause to
believe that the order for outpatient or community-based treatment
[and supervision] should be revoked. On a finding that probable
cause for revocation exists, the court shall order the person held
in protective custody pending a determination of whether the order
should be revoked.
(e) An acquitted person may be detained under an order for
protective custody for a period not to exceed 72 hours, excluding
Saturdays, Sundays, legal holidays, and the period prescribed by
Section 574.025(b), Health and Safety Code, for an extreme
emergency. A person so detained shall be evaluated within 24 hours
after being detained to determine whether the person presents a
substantial risk of serious harm to others so that the person cannot
be at liberty pending the hearing. Substantial risk of serious harm
may be demonstrated by the person's behavior or by evidence of
severe emotional distress and deterioration. If the evaluation
shows that the person does not meet the criteria for continued
detention, the facility shall release the person. If the person is
found to present a substantial risk of serious harm to others, as
described by this subsection, the hearing required by Article
46C.266 shall be conducted before the expiration of the period
authorized by this subsection for the order of protective custody.
SECTION 30. Articles 46C.268(a), (b), and (f), Code of
Criminal Procedure, are amended to read as follows:
(a) An acquitted person, the head of the facility to which
the acquitted person is committed, the person responsible for
providing the outpatient or community-based treatment [and
supervision], or the state may request that the court discharge an
acquitted person from inpatient commitment or outpatient or
community-based treatment [and supervision].
(b) Not later than the 14th day after the date of the
request, the court shall hold a hearing on a request made by the
head of the facility to which the acquitted person is committed or
the person responsible for providing the outpatient or
community-based treatment [and supervision].
(f) The court shall discharge the acquitted person from all
court-ordered commitment and treatment [and supervision] and
terminate the court's jurisdiction over the person if the court
finds that the acquitted person has established by a preponderance
of the evidence that:
(1) the acquitted person does not have a severe mental
illness or mental retardation; or
(2) the acquitted person is not likely to cause
serious harm to another because of any severe mental illness or
mental retardation.
SECTION 31. Articles 46C.269(a), (b), and (c), Code of
Criminal Procedure, are amended to read as follows:
(a) The jurisdiction of the court over a person covered by
this subchapter automatically terminates on the date when the
cumulative total period of institutionalization and outpatient or
community-based treatment [and supervision] imposed under this
subchapter equals the maximum term of imprisonment provided by law
for the offense of which the person was acquitted by reason of
insanity.
(b) On the termination of the court's jurisdiction under
this article, the person must be discharged from any inpatient
treatment or residential care or outpatient or community-based
treatment [and supervision] ordered under this subchapter.
(c) An inpatient or residential care facility to which a
person has been committed under this subchapter or a person
responsible for administering a regimen of outpatient or
community-based treatment [and supervision] under this subchapter
must notify the court not later than the 30th day before the court's
jurisdiction over the person ends under this article.
SECTION 32. Article 46C.270, Code of Criminal Procedure, is
amended by amending Subsection (b) and adding Subsections (b-1) and
(b-2) to read as follows:
(b) Either the acquitted person or the state may appeal to
the court of appeals from the county in which the order is entered
from:
(1) an Order of Commitment to Inpatient Treatment or
Residential Care entered under Article 46C.256;
(2) an Order to Receive Outpatient or Community-Based
Treatment [and Supervision] entered under Article 46C.257 or
46C.262;
(3) an order renewing or refusing to renew an Order for
Inpatient Commitment or Outpatient or Community-Based Treatment
[and Supervision] entered under Article 46C.261;
(4) an order modifying or revoking an Order for
Outpatient or Community-Based Treatment [and Supervision] entered
under Article 46C.266 or refusing a request to modify or revoke that
order; or
(5) an order discharging an acquitted person under
Article 46C.268 or denying a request for discharge of an acquitted
person.
(b-1) The entity responsible for administering a regimen of
inpatient treatment or residential care or outpatient or
community-based treatment may appeal to the court of appeals for
the county in which the order was entered from:
(1) an initial inpatient commitment order requiring
the facility to provide inpatient treatment or residential care to
the acquitted person entered under Article 46C.256;
(2) an initial outpatient commitment order requiring
the treatment provider to provide outpatient or community-based
treatment to the acquitted person entered under Article 46C.257; or
(3) a commitment order renewing inpatient or
outpatient treatment requiring the treatment provider to provide
treatment entered under Article 46C.261.
(b-2) An appeal under Subsection (b-1) shall be given
preferential setting.
SECTION 33. Subchapter F, Chapter 46C, Code of Criminal
Procedure, is amended by adding Article 46C.271 to read as follows:
Art. 46C.271. HABEAS CORPUS PROCEEDINGS. (a) A petition
for a writ of habeas corpus must be filed in the court of appeals for
the county in which the applicable order is entered or ruling is
received.
(b) A habeas corpus proceeding under this article shall be
given preferential setting.
SECTION 34. Section 533.0095(a), Health and Safety Code, is
amended to read as follows:
(a) The executive commissioner of the Health and Human
Services Commission by rule shall require the department to collect
information and maintain current records regarding a person found
not guilty of an offense by reason of insanity under Chapter 46C,
Code of Criminal Procedure, who is:
(1) ordered by a court to receive inpatient mental
health services under Chapter 574 or under Chapter 46C, Code of
Criminal Procedure;
(2) committed by a court for long-term placement in a
residential care facility under Chapter 593 or under Chapter 46C,
Code of Criminal Procedure; or
(3) ordered by a court to receive outpatient or
community-based treatment [and supervision].
SECTION 35. Section 8.01(a), Penal Code, is amended to read
as follows:
(a) It is an affirmative defense to prosecution that, at the
time of the conduct charged, the actor, as a result of severe mental
disease or defect, did not appreciate [know] that the actor's [his]
conduct was either legally or morally wrong.
SECTION 36. The change in law made by this Act in amending
Section 8.01(a), Penal Code, applies only to a defendant acquitted
of an offense committed on or after the effective date of this Act.
A defendant acquitted of 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 section, an offense was committed
before the effective date of this Act if any element of the offense
occurred before that date.
SECTION 37. Notwithstanding Section 5, Chapter 831, Acts of
the 79th Legislature, Regular Session, 2005, a determination of not
guilty by reason of insanity is governed by Chapter 46C, Code of
Criminal Procedure, for a person who committed any element of the
offense before September 1, 2005, under former Article 46.03, Code
of Criminal Procedure.
SECTION 38. This Act takes effect September 1, 2013.