Bill Text: TX HB4212 | 2021-2022 | 87th Legislature | Engrossed
Bill Title: Relating to procedures regarding defendants who are or may be persons with a mental illness or intellectual disability.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Engrossed - Dead) 2021-05-14 - Received from the House [HB4212 Detail]
Download: Texas-2021-HB4212-Engrossed.html
By: Moody, Rose | H.B. No. 4212 |
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relating to procedures regarding defendants who are or may be | ||
persons with a mental illness or intellectual disability. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Article 16.22(a)(2), Code of Criminal Procedure, | ||
is amended to read as follows: | ||
(2) The magistrate is not required to order the | ||
interview and collection of other information under Subdivision (1) | ||
if the defendant is no longer in custody or if the defendant in the | ||
year preceding the defendant's applicable date of arrest has been | ||
determined to have a mental illness or to be a person with an | ||
intellectual disability by the service provider that contracts with | ||
the jail to provide mental health or intellectual and developmental | ||
disability services, the local mental health authority, the local | ||
intellectual and developmental disability authority, or another | ||
mental health or intellectual and developmental disability expert | ||
described by Subdivision (1). A court that elects to use the | ||
results of that previous determination may proceed under Subsection | ||
(c). | ||
SECTION 2. Article 17.04, Code of Criminal Procedure, is | ||
amended to read as follows: | ||
Art. 17.04. REQUISITES OF A PERSONAL BOND. (a) A personal | ||
bond is sufficient if it includes the requisites of a bail bond as | ||
set out in Article 17.08, except that no sureties are required. In | ||
addition, a personal bond shall contain: | ||
(1) the defendant's name, address, and place of | ||
employment; | ||
(2) identification information, including the | ||
defendant's: | ||
(A) date and place of birth; | ||
(B) height, weight, and color of hair and eyes; | ||
(C) driver's license number and state of | ||
issuance, if any; and | ||
(D) nearest relative's name and address, if any; | ||
and | ||
(3) except as provided by Subsection (b), the | ||
following oath sworn and signed by the defendant: | ||
"I swear that I will appear before (the court or magistrate) | ||
at (address, city, county) Texas, on the (date), at the hour of | ||
(time, a.m. or p.m.) or upon notice by the court, or pay to the court | ||
the principal sum of (amount) plus all necessary and reasonable | ||
expenses incurred in any arrest for failure to appear." | ||
(b) A personal bond is not required to contain the oath | ||
described by Subsection (a)(3) if: | ||
(1) the magistrate makes a determination under Article | ||
16.22 that the defendant has a mental illness or is a person with an | ||
intellectual disability, including by using the results of a | ||
previous determination under that article; | ||
(2) the defendant is released on personal bond under | ||
Article 17.032; or | ||
(3) the defendant is found incompetent to stand trial | ||
in accordance with Chapter 46B. | ||
SECTION 3. Subchapter B, Chapter 45, Code of Criminal | ||
Procedure, is amended by adding Article 45.0214 to read as follows: | ||
Art. 45.0214. DEFENDANT WITH MENTAL ILLNESS, INTELLECTUAL | ||
OR DEVELOPMENTAL DISABILITY, OR LACK OF CAPACITY. (a) In this | ||
article: | ||
(1) "Caregiver" means a person, including a guardian, | ||
who is authorized by law, contract, or familial relationship to | ||
provide care to another person. | ||
(2) "Defendant" includes a child as defined by Article | ||
45.058(h). | ||
(b) On motion by the state, the defendant, or a person who | ||
stands in a parental relation to the defendant or who acts as the | ||
defendant's caregiver, or on the court's own motion, a justice or | ||
judge shall determine whether probable cause exists to believe that | ||
a defendant, including a defendant with a mental illness or an | ||
intellectual or developmental disability: | ||
(1) lacks the capacity to understand the proceedings | ||
in criminal court or to assist in the defendant's own defense; or | ||
(2) is unfit to proceed. | ||
(c) If the court determines that probable cause exists for a | ||
finding under Subsection (b), after providing notice to the state, | ||
the court may dismiss the complaint. | ||
(d) A dismissal of a complaint under Subsection (c) may be | ||
appealed as provided by Article 44.01. | ||
SECTION 4. Subchapter B, Chapter 45, Code of Criminal | ||
Procedure, is amended by adding Article 45.0241 to read as follows: | ||
Art. 45.0241. ACCEPTANCE OF PLEA OF GUILTY OR NOLO | ||
CONTENDERE. Notwithstanding any other law, a justice or judge may | ||
not accept a plea of guilty or plea of nolo contendere under Article | ||
45.022 or 45.023(a) unless it appears that the defendant is | ||
mentally competent and the plea is free and voluntary. | ||
SECTION 5. Article 46B.009, Code of Criminal Procedure, is | ||
amended 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 each of the following periods for which the | ||
person may be confined in a mental health facility, residential | ||
care facility, or jail: | ||
(1) any period of confinement that occurs pending a | ||
determination 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. | ||
(b) A court sentencing a person convicted of a criminal | ||
offense shall credit to the term of the person's sentence any period | ||
during which the person participated in an outpatient competency | ||
restoration program. | ||
SECTION 6. Subchapter D, Chapter 46B, Code of Criminal | ||
Procedure, is amended by adding Article 46B.0735 to read as | ||
follows: | ||
Art. 46B.0735. DATE COMPETENCY RESTORATION PERIOD BEGINS. | ||
The initial restoration period for a defendant under Article | ||
46B.0711, 46B.072, or 46B.073 begins on the later of: | ||
(1) the date the defendant is: | ||
(A) ordered to participate in an outpatient | ||
competency restoration program; or | ||
(B) committed to a mental health facility, | ||
residential care facility, or jail-based competency restoration | ||
program; or | ||
(2) the date competency restoration services actually | ||
begin. | ||
SECTION 7. Article 46B.080, Code of Criminal Procedure, is | ||
amended by adding Subsection (d) to read as follows: | ||
(d) An extension under this article begins on the later of: | ||
(1) the date the court enters the order under | ||
Subsection (a); or | ||
(2) the date competency restoration services actually | ||
begin pursuant to the order entered under Subsection (a). | ||
SECTION 8. Article 46B.090, Code of Criminal Procedure, is | ||
amended by amending Subsections (a-1), (b), (c), (f), (g), (i), | ||
(j), (k), (l), (m), and (n) and adding Subsections (f-1), (l-1), | ||
(l-2), and (o) to read as follows: | ||
(a-1) If the legislature appropriates to the commission | ||
[ |
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to operate a jail-based restoration of competency pilot program as | ||
described by this article, the commission [ |
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develop and implement the pilot program in one or two counties in | ||
this state that choose to participate in the pilot program. In | ||
developing the pilot program, the commission [ |
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coordinate and allow for input from each participating county. | ||
(b) The commission [ |
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provider of jail-based competency restoration services to provide | ||
services under the pilot program if the commission [ |
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develops a pilot program under this article. | ||
(c) The executive [ |
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commissioner [ |
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implement the pilot program. [ |
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(f) To contract with the commission [ |
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Subsection (b), a provider of jail-based competency restoration | ||
services must [ |
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(1) be [ |
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[ |
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[ |
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behavioral health authority that is in good standing with the | ||
commission, which may include an authority that is in good standing | ||
with the commission and subcontracts with a provider of jail-based | ||
competency restoration services [ |
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(2) contract with a county or counties to develop and | ||
implement a jail-based competency restoration program. | ||
(f-1) The [ |
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restoration program must: | ||
(1) through the use of a multidisciplinary treatment | ||
team, provide jail-based competency restoration services that are: | ||
(A) [ |
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[ |
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objective of restoring the defendant's competency to stand trial; | ||
and | ||
(B) [ |
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[ |
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(2) employ [ |
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the services of at least one psychiatrist; | ||
(3) provide jail-based competency restoration | ||
services through licensed or qualified mental health | ||
professionals; | ||
(4) provide [ |
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restoration [ |
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hours provided as part of other [ |
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[ |
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(5) operate in the jail in a designated space that is | ||
separate from the space used for the general population of the jail; | ||
(6) ensure coordination of general health care; | ||
(7) provide mental health treatment and substance use | ||
disorder treatment to defendants, as necessary, for competency | ||
restoration; and | ||
(8) supply clinically appropriate psychoactive | ||
medications for purposes of administering court-ordered medication | ||
to defendants as applicable and in accordance with Article 46B.086 | ||
of this code or Section 574.106, Health and Safety Code | ||
[ |
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[ |
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(g) A contract under Subsection (b) must require the | ||
designated provider to collect and submit to the commission | ||
[ |
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Subsection (c). | ||
(i) A [ |
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who has the qualifications described by Article 46B.022 shall | ||
evaluate the defendant's competency and report to the court as | ||
required by Article 46B.079 [ |
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(j) If at any time during a defendant's participation in the | ||
jail-based restoration of competency pilot program the | ||
psychiatrist or psychologist for the provider determines that the | ||
defendant has attained competency to stand trial: | ||
(1) the psychiatrist or psychologist for the provider | ||
shall promptly issue and send to the court a report demonstrating | ||
that fact; and | ||
(2) the court shall consider that report as the report | ||
of an expert stating an opinion that the defendant has been restored | ||
to competency for purposes of Article 46B.0755(a) or (b). | ||
(k) If at any time during a defendant's participation in the | ||
jail-based restoration of competency pilot program the | ||
psychiatrist or psychologist for the provider determines that the | ||
defendant's competency to stand trial is unlikely to be restored in | ||
the foreseeable future: | ||
(1) the psychiatrist or psychologist for the provider | ||
shall promptly issue and send to the court a report demonstrating | ||
that fact; and | ||
(2) the court shall: | ||
(A) proceed under Subchapter E or F and order the | ||
transfer of the defendant, without unnecessary delay, to the first | ||
available facility that is appropriate for that defendant, as | ||
provided under Subchapter E or F, as applicable; or | ||
(B) release the defendant on bail as permitted | ||
under Chapter 17. | ||
(l) If the psychiatrist or psychologist for the provider | ||
determines that a defendant ordered to participate in the pilot | ||
program has not been restored to competency by the end of the 60th | ||
day after the date the defendant began to receive services in the | ||
pilot program, the jail-based competency restoration program shall | ||
continue to provide competency restoration services to the | ||
defendant for the period authorized by this subchapter, including | ||
any extension ordered under Article 46B.080, unless the jail-based | ||
competency restoration program is notified that space at a facility | ||
or outpatient competency restoration program appropriate for the | ||
defendant is available and, as applicable: | ||
(1) for a defendant charged with a felony, not less | ||
than 45 days are remaining in the initial restoration period; or | ||
(2) for a defendant charged with a felony or a | ||
misdemeanor, an extension has been ordered under Article 46B.080 | ||
and not less than 45 days are remaining under the extension order. | ||
(l-1) After receipt of a notice under Subsection (l), [ |
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[ |
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[ |
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[ |
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without unnecessary delay to the appropriate mental health | ||
facility, [ |
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restoration program [ |
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remainder of the period permitted by this subchapter, including any | ||
extension that may be ordered under Article 46B.080 if an extension | ||
has not previously been ordered under that article. If the | ||
defendant is not transferred, and if the psychiatrist or | ||
psychologist for the provider determines that the defendant has not | ||
been restored to competency by the end of the period authorized by | ||
this subchapter, the defendant shall be returned to the court for | ||
further proceedings. For a defendant charged with a misdemeanor, | ||
the court may: | ||
(1) [ |
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[ |
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(2) [ |
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under Chapter 17; or | ||
(3) [ |
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Article 46B.010. | ||
(l-2) The court retains authority to order the transfer of a | ||
defendant who is subject to an order for jail-based competency | ||
restoration services to an outpatient competency restoration | ||
program if: | ||
(1) the court determines that the defendant 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 | ||
(2) the other requirements of this subchapter relating | ||
to an order for outpatient competency restoration services are met. | ||
(m) Unless otherwise provided by this article, the | ||
provisions of this chapter, including the maximum periods | ||
prescribed by Article 46B.0095, apply to a defendant receiving | ||
competency restoration services, including competency restoration | ||
education services, under the pilot program in the same manner as | ||
those provisions apply to any other defendant who is subject to | ||
proceedings under this chapter. | ||
(n) If the commission [ |
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a jail-based restoration of competency pilot program under this | ||
article, not later than December 1, 2021 [ |
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commissioner [ |
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the pilot program to the presiding officers of the standing | ||
committees of the senate and house of representatives having | ||
primary jurisdiction over health and human services issues and over | ||
criminal justice issues. The report must include the information | ||
collected by the commission [ |
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and the executive commissioner's evaluation of the outcome of the | ||
program as of the date the report is submitted. | ||
(o) This article expires September 1, 2022. After the | ||
expiration of this article, a pilot program established under this | ||
article may continue to operate subject to the requirements of | ||
Article 46B.091. | ||
SECTION 9. Article 46B.091, Code of Criminal Procedure, is | ||
amended by amending Subsections (g) and (j) and adding Subsections | ||
(j-1) and (m) to read as follows: | ||
(g) A psychiatrist or psychologist for the provider who has | ||
the qualifications described by Article 46B.022 shall evaluate the | ||
defendant's competency and report to the court as required by | ||
Article 46B.079 [ |
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(j) If the psychiatrist or psychologist for the provider | ||
determines that a defendant committed to a program implemented | ||
under this article has not been restored to competency by the end of | ||
the 60th day after the date the defendant began to receive services | ||
in the program, the jail-based competency restoration program shall | ||
continue to provide competency restoration services to the | ||
defendant for the period authorized by this subchapter, including | ||
any extension ordered under Article 46B.080, unless the jail-based | ||
competency restoration program is notified that space at a facility | ||
or outpatient competency restoration program appropriate for the | ||
defendant is available and, as applicable: | ||
(1) for a defendant charged with a felony, not less | ||
than 45 days are remaining in the initial restoration period; or | ||
(2) for a defendant charged with a felony or a | ||
misdemeanor, an extension has been ordered under Article 46B.080 | ||
and not less than 45 days are remaining under the extension order. | ||
(j-1) After receipt of a notice under Subsection (j), [ |
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[ |
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[ |
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delay to the appropriate mental health facility, [ |
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care facility, or outpatient competency restoration program [ |
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permitted by this subchapter, including any extension that may be | ||
ordered under Article 46B.080 if an extension has not previously | ||
been ordered under that article. If the defendant is not | ||
transferred, and if the psychiatrist or psychologist for the | ||
provider determines that the defendant has not been restored to | ||
competency by the end of the period authorized by this subchapter, | ||
the defendant shall be returned to the court for further | ||
proceedings. For a defendant charged with a misdemeanor, the court | ||
may: [ |
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(1) [ |
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(2) [ |
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under Chapter 17; or | ||
(3) [ |
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Article 46B.010. | ||
(m) The court retains authority to order the transfer of a | ||
defendant who is subject to an order for jail-based competency | ||
restoration services to an outpatient competency restoration | ||
program if: | ||
(1) the court determines that the defendant 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 | ||
(2) the other requirements of this subchapter relating | ||
to an order for outpatient competency restoration services are met. | ||
SECTION 10. Subchapter E, Chapter 46B, Code of Criminal | ||
Procedure, is amended by adding Article 46B.1055 to read as | ||
follows: | ||
Art. 46B.1055. MODIFICATION OF ORDER FOLLOWING INPATIENT | ||
CIVIL COMMITMENT PLACEMENT. (a) This article applies to a | ||
defendant who has been transferred under Article 46B.105 from a | ||
maximum security unit to any facility other than a maximum security | ||
unit. | ||
(b) The defendant, the head of the facility to which the | ||
defendant is committed, or the attorney representing the state may | ||
request that the court modify an order for inpatient treatment or | ||
residential care to order the defendant to participate in an | ||
outpatient treatment program. | ||
(c) If the head of the facility to which the defendant is | ||
committed makes a request under Subsection (b), not later than the | ||
14th day after the date of the request the court shall hold a | ||
hearing to determine whether the court should modify the order for | ||
inpatient treatment or residential care in accordance with Subtitle | ||
C, Title 7, Health and Safety Code. | ||
(d) If the defendant or the attorney representing the state | ||
makes a request under Subsection (b), not later than the 14th day | ||
after the date of the request the court shall grant the request, | ||
deny the request, or hold a hearing on the request to determine | ||
whether the court should modify the order for inpatient treatment | ||
or residential care. A court is not required to hold a hearing under | ||
this subsection unless the request and any supporting materials | ||
provided to the court provide a basis for believing modification of | ||
the order may be appropriate. | ||
(e) On receipt of a request to modify an order under | ||
Subsection (b), the court shall require the local mental health | ||
authority or local behavioral health authority to submit to the | ||
court, before any hearing is held under this article, a statement | ||
regarding whether treatment and supervision for the defendant can | ||
be safely and effectively provided on an outpatient basis and | ||
whether appropriate outpatient mental health services are | ||
available to the defendant. | ||
(f) If the head of the facility to which the defendant is | ||
committed believes that the defendant is a person with mental | ||
illness who meets the criteria for court-ordered outpatient mental | ||
health services under Subtitle C, Title 7, Health and Safety Code, | ||
the head of the facility shall submit to the court before the | ||
hearing a certificate of medical examination for mental illness | ||
stating that the defendant meets the criteria for court-ordered | ||
outpatient mental health services. | ||
(g) If a request under Subsection (b) is made by a defendant | ||
before the 91st day after the date the court makes a determination | ||
on a previous request under that subsection, the court is not | ||
required to act on the request until the earlier of: | ||
(1) the expiration of the current order for inpatient | ||
treatment or residential care; or | ||
(2) the 91st day after the date of the court's previous | ||
determination. | ||
(h) Proceedings for commitment of the defendant to a | ||
court-ordered outpatient treatment program 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 regardless of | ||
whether the criminal court is also the county court. | ||
(i) The court shall rule on a request made under Subsection | ||
(b) as soon as practicable after a hearing on the request, but not | ||
later than the 14th day after the date of the request. | ||
(j) An 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 11. Article 46C.102(a), Code of Criminal Procedure, | ||
is 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 [ |
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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) [ |
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(i) at least 24 hours of specialized | ||
forensic training relating to incompetency or insanity | ||
evaluations; and | ||
(ii) at least [ |
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[ |
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education relating to forensic evaluations, completed in the 12 | ||
months preceding the appointment [ |
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SECTION 12. Section 511.009(d), Government Code, is amended | ||
to read as follows: | ||
(d) The commission shall adopt reasonable rules and | ||
procedures establishing minimum standards regarding the continuity | ||
of prescription medications for the care and treatment of | ||
prisoners. The rules and procedures shall require that: | ||
(1) a qualified medical professional shall review as | ||
soon as possible any prescription medication a prisoner is taking | ||
when the prisoner is taken into custody; and | ||
(2) a prisoner with a mental illness be provided with | ||
each prescription medication that a qualified medical professional | ||
or mental health professional determines is necessary for the care, | ||
treatment, or stabilization of the prisoner. | ||
SECTION 13. The following provisions of the Code of | ||
Criminal Procedure are repealed: | ||
(1) Articles 46B.090(a) and (h); and | ||
(2) Article 46B.091(a). | ||
SECTION 14. The change in law made by this Act to Article | ||
17.04, Code of Criminal Procedure, applies only to a personal bond | ||
that is executed on or after the effective date of this Act. A | ||
personal bond executed before the effective date of this Act is | ||
governed by the law in effect on the date the personal bond was | ||
executed, and the former law is continued in effect for that | ||
purpose. | ||
SECTION 15. The change in law made by this Act to Article | ||
46C.102(a), Code of Criminal Procedure, applies to a defendant | ||
against whom proceedings are initiated under Chapter 46C, Code of | ||
Criminal Procedure, before, on, or after the effective date of this | ||
Act. | ||
SECTION 16. Not later than December 1, 2021, the Commission | ||
on Jail Standards shall adopt the rules and procedures required by | ||
Section 511.009(d), Government Code, as amended by this Act. | ||
SECTION 17. This Act takes effect September 1, 2021. |