88R3692 EAS-F     By: Herrero H.B. No. 4886       A BILL TO BE ENTITLED   AN ACT   relating to sexually violent predators and the prosecution of   certain offenses involving prohibited items at correctional or   civil commitment facilities; creating a criminal offense.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 20.02(c), Penal Code, is amended to read   as follows:          (c)  An offense under this section is a Class A misdemeanor,   except that the offense is:                (1)  a state jail felony if the person restrained was a   child younger than 17 years of age;                (2)  a felony of the third degree if:                      (A)  the actor recklessly exposes the victim to a   substantial risk of serious bodily injury;                      (B)  the actor restrains an individual the actor   knows is a public servant while the public servant is lawfully   discharging an official duty or in retaliation or on account of an   exercise of official power or performance of an official duty as a   public servant; or                      (C)  the actor, while in custody or committed to a   civil commitment facility, restrains any other person; or                (3)  notwithstanding Subdivision (2)(B), a felony of   the second degree if the actor restrains an individual the actor   knows is a peace officer or judge while the officer or judge is   lawfully discharging an official duty or in retaliation or on   account of an exercise of official power or performance of an   official duty as a peace officer or judge.          SECTION 2.  Section 21.07(b), Penal Code, is amended to read   as follows:          (b)  An offense under this section is a Class A misdemeanor,   except that the offense is a felony of the third degree if the actor   is civilly committed as a sexually violent predator under Chapter   841, Health and Safety Code.          SECTION 3.  Section 21.08(b), Penal Code, is amended to read   as follows:          (b)  An offense under this section is a Class B misdemeanor,   except that the offense is a felony of the third degree if the actor   is civilly committed as a sexually violent predator under Chapter   841, Health and Safety Code.          SECTION 4.  Section 22.01(b-1), Penal Code, is amended to   read as follows:          (b-1)  Notwithstanding Subsections [Subsection] (b) and (c),   an offense under Subsection (a) [(a)(1)] is a felony of the third   degree if the offense is committed:                (1)  by an [while the] actor who is committed to a civil   commitment facility; and                (2)  against:                      (A)  a person the actor knows is an officer or   employee of the Texas Civil Commitment Office:                            (i)  while the officer or employee is   lawfully discharging an official duty [at a civil commitment   facility]; or                            (ii)  in retaliation for or on account of an   exercise of official power or performance of an official duty by the   officer or employee; or                      (B)  a person the actor knows is contracting [who   contracts] with the state to perform a service in a civil commitment   facility or an employee of that person:                            (i)  while the person or employee is engaged   in performing a service within the scope of the contract[, if the   actor knows the person or employee is authorized by the state to   provide the service]; or                            (ii)  in retaliation for or on account of the   person's or employee's performance of a service within the scope of   the contract.          SECTION 5.  Section 38.11, Penal Code, is amended by   amending Subsections (a), (d), and (k) and adding Subsection (j-1)   to read as follows:          (a)  A person commits an offense if the person provides, or   possesses with the intent to provide:                (1)  an alcoholic beverage, controlled substance, or   dangerous drug to a person in the custody of a correctional facility   or residing in a civil commitment facility, except on the   prescription of a practitioner;                (2)  a deadly weapon to a person in the custody of a   correctional facility or residing in a civil commitment facility;                (3)  a cellular telephone or other wireless   communications device or a component of one of those devices to a   person in the custody of a correctional facility;                (4)  money to a person confined in a correctional   facility; or                (5)  a cigarette or tobacco product to a person   confined in a correctional facility, except that if the facility is   a local jail regulated by the Commission on Jail Standards, the   person commits an offense only if providing the cigarette or   tobacco product violates a rule or regulation adopted by the   sheriff or jail administrator that:                      (A)  prohibits the possession of a cigarette or   tobacco product by a person confined in the jail; or                      (B)  places restrictions on:                            (i)  the possession of a cigarette or   tobacco product by a person confined in the jail; or                            (ii)  the manner in which a cigarette or   tobacco product may be provided to a person confined in the jail.          (d)  A person commits an offense if the person:                (1)  possesses an alcoholic beverage, [a] controlled   substance, or dangerous drug while in a correctional facility or   civil commitment facility or on property owned, used, or controlled   by a correctional facility or civil commitment facility; or                (2)  possesses a deadly weapon while in a correctional   facility or civil commitment facility.          (j-1)  A person commits an offense if the person, while   residing in a civil commitment facility, possesses a cellular   telephone or other wireless communications device or a component of   one of those devices unless the device or component is authorized by   the Texas Civil Commitment Office.           (k)  A person commits an offense if, with the intent to   provide to or make a cellular telephone or other wireless   communications device or a component of one of those devices   available for use by a person in the custody of a correctional   facility or residing in a civil commitment facility, the person:                (1)  acquires a cellular telephone or other wireless   communications device or a component of one of those devices to be   delivered to the person in custody or residing in the facility;                (2)  provides a cellular telephone or other wireless   communications device or a component of one of those devices to   another person for delivery to the person in custody or residing in   the facility; or                (3)  makes a payment to a communication common carrier,   as defined by Article 18A.001, Code of Criminal Procedure, or to any   communication service that provides to its users the ability to   send or receive wire or electronic communications.          SECTION 6.  Chapter 39, Penal Code, is amended by adding   Section 39.041 to read as follows:          Sec. 39.041.  IMPROPER SEXUAL ACTIVITY WITH COMMITTED   PERSON. (a)  In this section, "deviate sexual intercourse,"   "sexual contact," and "sexual intercourse" have the meanings   assigned by Section 21.01.          (b)  An officer or employee of the Texas Civil Commitment   Office, a person who contracts with this state to perform a service   in a civil commitment facility or an employee of that person, or a   volunteer at a civil commitment facility commits an offense if the   person intentionally engages in deviate sexual intercourse, sexual   contact, or sexual intercourse with a person committed to a civil   commitment facility.          (c)  An offense under this section is a felony of the third   degree.          (d)  It is an affirmative defense to prosecution under this   section that, at the time of the offense, the actor was the spouse   of the person committed to the civil commitment facility.          (e)  If conduct that constitutes an offense under this   section also constitutes an offense under any other law, the actor   may be prosecuted under this section, the other law, or both.          SECTION 7.  Article 62.005(j), Code of Criminal Procedure,   is amended to read as follows:          (j)  The department, for law enforcement purposes or for   supervision and treatment purposes, shall release all relevant   information described by Subsection (a), including information   that is not public information under Subsection (b), to a peace   officer, an employee of a local law enforcement authority, the   Texas Civil Commitment Office, or the attorney general on the   request of the applicable person or entity.          SECTION 8.  Article 62.051, Code of Criminal Procedure, is   amended by amending Subsections (b), (e), and (f) and adding   Subsection (e-1) to read as follows:          (b)  The department shall provide the Texas Department of   Criminal Justice, the Texas Juvenile Justice Department, the Texas   Civil Commitment Office, and each local law enforcement authority,   authority for campus security, county jail, and court with a form   for registering persons required by this chapter to register.          (e)  Not later than the third day after the registration of a   person [a person's registering], the local law enforcement   authority with whom the person is registered shall send a copy of   the registration form to the department and, if the person resides   on the campus of a public or private institution of higher   education, to any authority for campus security for that   institution.          (e-1)  The Texas Civil Commitment Office shall register with   the applicable local law enforcement authority on behalf of a   person who is civilly committed as a sexually violent predator   under Chapter 841, Health and Safety Code, and required to reside in   a civil commitment center. A person for whom registration is   completed under this subsection is not required to verify the   registration until the person is authorized to reside outside of   the civil commitment center.          (f)  Not later than the seventh day after the date on which   the person is released or, for a person who is civilly committed as   a sexually violent predator under Chapter 841, Health and Safety   Code, authorized to reside outside of the civil commitment center,    a person for whom registration is completed under this chapter   shall report to the applicable local law enforcement authority to   verify the information in the registration form received by the   authority under this chapter. The authority shall require the   person to produce proof of the person's identity and residence   before the authority gives the registration form to the person for   verification.  If the information in the registration form is   complete and accurate, the person shall verify registration by   signing the form.  If the information is not complete or not   accurate, the person shall make any necessary additions or   corrections before signing the form.          SECTION 9.  Subtitle A, Title 2, Civil Practice and Remedies   Code, is amended by adding Chapter 14A to read as follows:   CHAPTER 14A. LITIGATION BY CIVILLY COMMITTED INDIVIDUAL   SUBCHAPTER A. GENERAL PROVISIONS          Sec. 14A.001.  DEFINITIONS. In this chapter:                (1)  "Civilly committed individual" means a sexually   violent predator as described by Section 841.003, Health and Safety   Code, who has been committed to a facility operated by or under   contract with the office.                (2)  "Claim" means a cause of action governed by this   chapter.                (3)  "Office" means the Texas Civil Commitment Office.                (4)  "Trust account" means a civilly committed   individual's trust account administered by the office or by a   facility under contract with the office.                (5)  "Unsworn declaration" means a document executed in   accordance with Chapter 132.          Sec. 14A.002.  SCOPE OF CHAPTER. (a) This chapter applies   only to an action, including an appeal or original proceeding,   brought by a civilly committed individual in a district, county, or   justice court or an appellate court, including the supreme court or   the court of criminal appeals, in which an affidavit or unsworn   declaration of inability to pay costs is filed by the civilly   committed individual.          (b)  This chapter does not apply to an action brought under   the Family Code.   SUBCHAPTER B. DISMISSAL OF AND REQUIREMENTS FOR CLAIM          Sec. 14A.051.  DISMISSAL OF FALSE, FRIVOLOUS, OR MALICIOUS   CLAIM. (a) A court may dismiss a claim, either before or after   service of process, if the court finds that:                (1)  the allegation of poverty in the affidavit or   unsworn declaration is false;                (2)  the claim is frivolous or malicious; or                (3)  the civilly committed individual filed an   affidavit or unsworn declaration required by this chapter that the   individual knew was false.          (b)  In determining whether a claim is frivolous or   malicious, the court may consider whether:                (1)  the claim's realistic chance of ultimate success   is slight;                (2)  the claim has no arguable basis in law or in fact;                (3)  it is clear that the civilly committed individual   cannot prove the facts in support of the claim; or                (4)  the claim is substantially similar to a previous   claim filed by the civilly committed individual because the claim   arises from the same operative facts.          (c)  In determining whether Subsection (a) applies, the   court may hold a hearing. The hearing may be held before or after   service of process, and it may be held on motion of the court, a   party, or the court clerk.          (d)  On the filing of a motion under Subsection (c), the   court shall suspend discovery relating to the claim pending the   hearing.          (e)  A court that dismisses a claim brought by a civilly   committed individual housed in a facility operated by or under   contract with the office may notify the office of the dismissal and,   on the court's own motion or the motion of any party or the court   clerk, may advise the office that a mental health evaluation of the   individual may be appropriate.          Sec. 14A.052.  AFFIDAVIT RELATING TO PREVIOUS FILINGS. (a)   A civilly committed individual who files an affidavit or unsworn   declaration of inability to pay costs shall file a separate   affidavit or declaration:                (1)  identifying the court that ordered the   individual's civil commitment under Chapter 841, Health and Safety   Code;                (2)  indicating whether any cause of action or   allegation contained in the petition has previously been filed in   any other court, and if so, stating the cause of action or   allegation previously filed and complying with Subdivision (6) and   Subsection (b);                (3)  identifying each action, other than an action   under the Family Code, previously brought by the individual in   which the individual was not represented by an attorney, without   regard to whether the individual was civilly committed at the time   the action was brought;                (4)  certifying that all grievance processes   applicable to the matter that is the basis of the claim, if any,   have been exhausted;                (5)  certifying that no court has found the individual   to be a vexatious litigant under Chapter 11; and                (6)  describing each action that was previously brought   by:                      (A)  stating the operative facts for which relief   was sought;                      (B)  listing the case name, the cause number, and   the court in which the action was brought;                      (C)  identifying each party named in the action;   and                      (D)  stating the result of the action, including   whether the action or a claim that was a basis for the action was   dismissed as frivolous or malicious under Section 13.001, 14.003,   or 14A.051 or otherwise.          (b)  If the affidavit or unsworn declaration filed under this   section states that a previous action or claim was dismissed as   frivolous or malicious, the affidavit or unsworn declaration must   state the date of the final order affirming the dismissal.          (c)  The affidavit or unsworn declaration must be   accompanied by the certified copy of the trust account statement   required by Section 14A.054(f).          Sec. 14A.053.  GRIEVANCE SYSTEM DECISION; EXHAUSTION OF   ADMINISTRATIVE REMEDIES. (a) A civilly committed individual who   files a claim that is subject to a grievance system established by   the office or a facility under contract with the office shall file   with the court:                (1)  an affidavit or unsworn declaration stating the   date that the grievance was filed and the date the written decision   was received by the individual; and                (2)  a copy of the written decision from the grievance   system.          (b)  A court shall dismiss a claim if the civilly committed   individual fails to file the claim before the 31st day after the   date the individual receives the written decision from the   grievance system.          (c)  If a claim is filed before the grievance system   procedure is complete, the court shall stay the proceeding with   respect to the claim for a period not to exceed 180 days to permit   completion of the grievance system procedure.          Sec. 14A.054.  COURT FEES, COURT COSTS, OTHER COSTS. (a) A   court may order a civilly committed individual who has filed a claim   to pay court fees, court costs, and other costs in accordance with   this section and Section 14A.055. The court clerk shall mail a copy   of the court's order and a certified bill of costs to the office or   facility under contract with the office, as appropriate.          (b)  On the court's order, the civilly committed individual   shall pay an amount equal to the lesser of:                (1)  20 percent of the preceding six months' deposits to   the individual's trust account; or                (2)  the total amount of court fees, court costs, and   other costs.          (c)  In each month following the month in which payment is   made under Subsection (b), the civilly committed individual shall   pay an amount equal to the lesser of:                (1)  10 percent of that month's deposits to the trust   account; or                (2)  the total amount of court fees, court costs, and   other costs that remains unpaid.          (d)  Payments under Subsection (c) shall continue until the   total amount of court fees, court costs, and other costs are paid or   until the civilly committed individual is released from   confinement.          (e)  On receipt of a copy of an order issued under Subsection   (a), the office or facility under contract with the office shall   withdraw money from the trust account in accordance with   Subsections (b), (c), and (d). The office or facility shall hold the   money in a separate account and shall forward the money to the court   clerk on the earlier of the following dates:                (1)  the date the total amount to be forwarded equals   the total amount of court fees, court costs, and other costs that   remains unpaid; or                (2)  the date the civilly committed individual is   released.          (f)  The civilly committed individual shall file a certified   copy of the individual's trust account statement with the court.   The statement must reflect the balance of the account at the time   the claim is filed and activity in the account during the six months   preceding the date on which the claim is filed. The court may   request the office to provide the information required under this   subsection.          (g)  A civilly committed individual may authorize payment in   addition to that required by this section.          (h)  The court may dismiss a claim if the civilly committed   individual fails to pay fees and costs assessed under this section.          (i)  A civilly committed individual may not avoid the fees   and costs assessed under this section by nonsuiting a party or by   voluntarily dismissing the action.          Sec. 14A.055.  OTHER COSTS. (a) An order under Section   14A.054(a) must include the costs described by Subsection (b) if   the court finds that:                (1)  the civilly committed individual has previously   filed an action to which this chapter or Chapter 14 applies; and                (2)  a final order has been issued that affirms that the   action was dismissed as frivolous or malicious under Section   13.001, 14.003, or 14A.051 or otherwise.          (b)  If Subsection (a) applies, costs of court must include   expenses incurred by the court or by the office or facility under   contract with the office, in connection with the claim and not   otherwise charged to the civilly committed individual under Section   14A.054, including:                (1)  expenses of service of process;                (2)  postage; and                (3)  transportation, housing, or medical care incurred   in connection with the appearance of the individual in the court for   any proceeding.          Sec. 14A.056.  HEARING. (a) The court may hold a hearing   under this chapter at a facility operated by or under contract with   the office or may conduct the hearing with video communications   technology that permits the court to see and hear the civilly   committed individual and that permits the individual to see and   hear the court and any other witness.          (b)  A hearing conducted under this section by video   communications technology shall be recorded on videotape or by   other electronic means. The recording is sufficient to serve as a   permanent record of the hearing.          Sec. 14A.057.  SUBMISSION OF EVIDENCE. (a) The court may   request a person with an admissible document or admissible   testimony relevant to the subject matter of the hearing to submit a   copy of the document or written statement stating the substance of   the testimony.          (b)  A written statement submitted under this section must be   made under oath or made as an unsworn declaration under Section   132.001.          (c)  A copy of a document submitted under this section must   be accompanied by a certification executed under oath by an   appropriate custodian of the record stating that the copy is   correct and any other matter relating to the admissibility of the   document that the court requires.          (d)  A person submitting a written statement or document   under this section is not required to appear at the hearing.          (e)  The court shall require that the civilly committed   individual be provided with a copy of each written statement or   document not later than the 14th day before the date on which the   hearing is to begin.          Sec. 14A.058.  DISMISSAL OF CLAIM. (a) The court may enter   an order dismissing the entire claim or a portion of the claim under   this chapter.          (b)  If a portion of the claim is dismissed, the court shall   designate the issues and defendants on which the claim may proceed,   subject to Sections 14A.054 and 14A.055.          (c)  An order under this section is not subject to   interlocutory appeal by the civilly committed individual.          Sec. 14A.059.  EFFECT ON OTHER CLAIMS. (a) Except as   provided by Subsection (b), on receipt of an order assessing fees   and costs under Section 14A.054 that indicates that the court made   the finding described by Section 14A.055(a), a court clerk may not   accept for filing another claim by the civilly committed individual   until the fees and costs assessed under Section 14A.054 are paid.          (b)  A court may allow a civilly committed individual who has   not paid the fees and costs assessed against the individual to file   a claim for injunctive relief seeking to enjoin an act or failure to   act that creates a substantial threat of irreparable injury or   serious physical harm to the individual.          Sec. 14A.060.  QUESTIONNAIRE. To implement this chapter, a   court may develop, for use in that court, a questionnaire to be   filed by the civilly committed individual.          Sec. 14A.061.  REVIEW AND RECOMMENDATION BY MAGISTRATES.   (a) The supreme court shall, by rule, adopt a system under which a   court may refer a suit governed by this chapter to a magistrate for   review and recommendation.          (b)  The system adopted under Subsection (a) may be funded   from money appropriated to the supreme court or from money received   by the supreme court through interagency contract or contracts.          (c)  For the purposes of Section 14A.062, the adoption of a   system by rule under Subsection (a) does not constitute a   modification or repeal of a provision of this chapter.          Sec. 14A.062.  CONFLICT WITH TEXAS RULES OF CIVIL PROCEDURE.   Notwithstanding Section 22.004, Government Code, this chapter may   not be modified or repealed by a rule adopted by the supreme court.          SECTION 10.  Subchapter C, Chapter 552, Government Code, is   amended by adding Section 552.1345 to read as follows:          Sec. 552.1345.  EXCEPTION: CONFIDENTIALITY OF CERTAIN   INFORMATION RELATING TO CIVILLY COMMITTED SEXUALLY VIOLENT   PREDATORS. (a)  Except as provided by Subsection (b), information   obtained or maintained by the Texas Civil Commitment Office is   excepted from the requirements of Section 552.021 if it is   information about a person who is civilly committed as a sexually   violent predator under Chapter 841, Health and Safety Code.          (b)  Subsection (a) does not apply to statistical or other   aggregated information relating to persons civilly committed to one   or more facilities operated by or under a contract with the office.          SECTION 11.  Subchapter I, Chapter 2001, Government Code, is   amended by adding Section 2001.227 to read as follows:          Sec. 2001.227.  TEXAS CIVIL COMMITMENT OFFICE. This chapter   does not apply to a rule or internal procedure of the Texas Civil   Commitment Office that applies to a person who is civilly committed   as a sexually violent predator under Chapter 841, Health and Safety   Code, or to an action taken under that rule or procedure.          SECTION 12.  Section 2155.144(a), Government Code, is   amended to read as follows:          (a)  This section applies only to the Health and Human   Services Commission, each health and human services agency, [and]   the Department of Family and Protective Services, and agencies   administratively attached to the Health and Human Services   Commission.  For the purposes of this section, the Department of   Family and Protective Services or an agency administratively   attached to the Health and Human Services Commission is considered   a health and human services agency.          SECTION 13.  Section 109.051(b), Occupations Code, is   amended to read as follows:          (b)  Notwithstanding Subtitle B, Title 3, of this code or   Chapter 611, Health and Safety Code, a person described by   Subsection (a), on request or in the normal course of business,   shall release information concerning the treatment of a sex   offender to:                (1)  another person described by Subsection (a);                (2)  a criminal justice agency; [or]                (3)  a local law enforcement authority; or                (4)  the Texas Civil Commitment Office.          SECTION 14.  Section 109.052, Occupations Code, is amended   to read as follows:          Sec. 109.052.  RELEASE BY CRIMINAL JUSTICE AGENCY. A   criminal justice agency, on request or in the normal course of   official business, shall release information concerning the   treatment of a sex offender to:                (1)  another criminal justice agency;                (2)  a local law enforcement authority; [or]                (3)  a person described by Section 109.051(a); or                (4)  the Texas Civil Commitment Office.          SECTION 15.  Section 109.053, Occupations Code, is amended   to read as follows:          Sec. 109.053.  RELEASE BY LOCAL LAW ENFORCEMENT AUTHORITY.   A local law enforcement authority, on request or in the normal   course of official business, shall release information concerning   the treatment of a sex offender to:                (1)  another local law enforcement authority;                (2)  a criminal justice agency; [or]                (3)  a person described by Section 109.051(a); or                (4)  the Texas Civil Commitment Office.          SECTION 16.  Sections 841.002(1) and (8), Health and Safety   Code, are amended to read as follows:                (1)  "Attorney representing the state" means a district   attorney, criminal district attorney, or county attorney with   felony criminal jurisdiction who represents the state in a [civil   commitment] proceeding under this chapter.                (8)  "Sexually violent offense" means:                      (A)  an offense under Section 21.02, 21.11(a)(1),   22.011, or 22.021, Penal Code;                      (B)  an offense under Section 20.04(a)(4), Penal   Code, if the person committed the offense with the intent to violate   or abuse the victim sexually;                      (C)  an offense under Section 30.02, Penal Code,   if the offense is punishable under Subsection (d) of that section   and the person entered the habitation [committed the offense] with   the intent to commit an offense listed in Paragraph (A) or (B) or   committed or attempted to commit an offense listed in Paragraph (A)   or (B);                      (D)  an offense under Section 19.02 or 19.03,   Penal Code, that, during the guilt or innocence phase or the   punishment phase for the offense, during the adjudication or   disposition of delinquent conduct constituting the offense, or   subsequently during a civil commitment proceeding under Subchapter   D, is determined beyond a reasonable doubt to have been based on   sexually motivated conduct;                      (E)  an attempt, conspiracy, or solicitation, as   defined by Chapter 15, Penal Code, to commit an offense listed in   Paragraph (A), (B), (C), or (D);                      (F)  an offense under prior state law that   contains elements substantially similar to the elements of an   offense listed in Paragraph (A), (B), (C), (D), or (E); or                      (G)  an offense under the law of another state,   federal law, or the Uniform Code of Military Justice that contains   elements substantially similar to the elements of an offense listed   in Paragraph (A), (B), (C), (D), or (E).          SECTION 17.  Section 841.042, Health and Safety Code, is   amended to read as follows:          Sec. 841.042.  ASSISTANCE FROM SPECIAL PROSECUTION UNIT. On   request of the attorney representing the state, the special   prosecution unit shall provide legal, financial, and technical   assistance to the attorney for a [civil commitment] proceeding   conducted under this chapter.          SECTION 18.  Section 841.0834, Health and Safety Code, is   amended to read as follows:          Sec. 841.0834.  MOVEMENT BETWEEN PROGRAMMING TIERS. (a)     The office shall transfer between programming tiers a committed   person required to reside in a total confinement facility [to less   restrictive housing and supervision] if the transfer is in the best   interests of the person and conditions can be imposed that   adequately protect the community.          (b)  Without the office's approval, a committed person may   file a petition with the court for transfer to the next less   restrictive tier [housing and supervision].  The court shall deny   the transfer if the petition is filed before the 180th day after the   date an order was entered under Subchapter D, F, or G or a previous   order was entered under this section.  The court shall grant the   transfer if the court determines by clear and convincing evidence   that the transfer is in the best interests of the person and that   the office can impose conditions [can be imposed] that adequately   protect the community.          (c)  A committed person who files a petition under Subsection   (b) [this subsection] shall serve a copy of the petition on the   office and the attorney representing the state.          (d) [(c)]  The office shall transfer [return] a committed   person who is not required to reside in a total confinement facility   back [has been transferred to less restrictive housing and   supervision] to a more restrictive setting in a total confinement   facility if the office considers the transfer necessary to further   treatment and to protect the community. The decision to transfer   the person must be based on the person's behavior or progress in   treatment.          (e) [(d)]  Not later than the 90th day after the date a   committed person is returned to a more restrictive setting in a   total confinement facility under Subsection (d) [(c)], the   committing court shall hold a hearing via videoconference to review   the office's determination.  The court shall order the office to   transfer the person to a less restrictive tier [housing and   supervision] only if the court determines by clear and convincing   evidence that the office's determination was not made in accordance   with Subsection (d) [(c)].  The committed person may waive the right   to a hearing under this subsection.          SECTION 19.  Section 841.0838, Health and Safety Code, is   amended to read as follows:          Sec. 841.0838.  USE OF RESTRAINTS.  (a)  An employee of the   office, or a person who contracts with the office or an employee of   that person, may use mechanical [or chemical] restraints on a   committed person residing in a civil commitment center or while   transporting a committed person who resides at the center only if:                (1)  the employee or person completes a training   program approved by the office on the use of mechanical restraints   that:                      (A)  includes instruction on the office's   approved mechanical restraint techniques and devices and the   office's verbal de-escalation policies, procedures, and practices;   and                      (B)  requires the employee or person to   demonstrate competency in the use of the mechanical restraint   techniques and devices; and                (2)  the mechanical restraint is:                      (A)  considered necessary to maintain the safety   and security of the center or staff [used as a last resort];                      (B)  considered necessary to maintain the safety   of the public [necessary to stop or prevent:                            [(i)  imminent physical injury to the   committed person or another;                            [(ii)  threatening behavior by the committed   person while the person is using or exhibiting a weapon;                            [(iii)  a disturbance by a group of   committed persons; or                            [(iv)  an absconsion from the center]; and                      (C)  the least restrictive restraint necessary,   used for the minimum duration necessary[, to prevent the injury,   property damage, or absconsion].          (b)  An employee of the office, or a person who contracts   with the office or an employee of that person, may use chemical   restraints on a committed person residing in a civil commitment   center or while transporting a committed person who resides at the   center only if:                (1)  the employee or person completes a training   program approved by the office on the use of chemical restraints   that:                      (A)  includes instruction on the office's   approved chemical restraint techniques and devices and the office's   verbal de-escalation policies, procedures, and practices; and                      (B)  requires the employee or person to   demonstrate competency in the use of chemical restraint techniques   and devices; and                (2)  the chemical restraint is:                      (A)  used as a last resort;                      (B)  necessary to prevent or stop:                            (i)  physical injury to the committed person   or another;                            (ii)  threatening behavior by the committed   person;                            (iii)  a disturbance by a group of committed   persons; or                             (iv)  an absconsion from the center; and                      (C)  the least restrictive restraint necessary,   used for the minimum duration necessary, to prevent injury,   property damage, or absconsion.          (c)  The office shall develop procedures governing the use of   mechanical or chemical restraints on committed persons.          SECTION 20.  Sections 841.123(a), (c), and (d), Health and   Safety Code, are amended to read as follows:          (a)  If the committed person files a petition for release   without the office's authorization, the person shall serve the   petition on the court, [and] the attorney representing the state,   and the office.          (c)  Except as provided by Subsection (d), the judge shall   deny without a hearing a petition for release filed without the   office's authorization if [the petition is frivolous or if]:                (1)  the judge determines by a preponderance of the   evidence that [petitioner previously filed without the office's   authorization another petition for release; and                [(2)  the judge determined on review of the previous   petition or following a hearing that:                      [(A)  the petition was frivolous; or                      [(B)]  the petitioner's behavioral abnormality   has [had] not changed to the extent that the petitioner is [was] no   longer likely to engage in a predatory act of sexual violence; or                                (2)  the petitioner has filed the petition for release   before the 180th day after the date an order was entered under   Subchapter D or F or a previous order was entered under this   section.                    (d)  The judge is not required to deny a petition under   Subsection (c)(2) if the judge determines by a preponderance of the   evidence [probable cause exists to believe] that the petitioner's   behavioral abnormality has changed to the extent that the   petitioner is no longer likely to engage in a predatory act of   sexual violence.          SECTION 21.  Chapter 841, Health and Safety Code, is amended   by adding Subchapter I to read as follows:   SUBCHAPTER I. ADMINISTRATION OF CERTAIN MEDICATION TO CERTAIN   SEXUALLY VIOLENT PREDATORS          Sec. 841.201.  DEFINITIONS. In this subchapter:                (1)  "Capacity" means a committed person's ability to:                      (A)  understand the nature and consequences of a   proposed treatment, including the benefits, risks, and   alternatives to the proposed treatment; and                      (B)  make a decision whether to undergo the   proposed treatment.                (2)  "Medication-related emergency" means a situation   in which it is immediately necessary to administer medication to a   committed person to prevent:                      (A)  imminent probable death or substantial   bodily harm to the committed person because the committed person:                            (i)  overtly or continually is threatening   or attempting to commit suicide or serious bodily harm; or                            (ii)  is behaving in a manner that indicates   that the committed person is unable to satisfy the committed   person's need for nourishment, essential medical care, or   self-protection; or                      (B)  imminent physical or emotional harm to   another because of threats, attempted acts, or acts the committed   person overtly or continually makes or commits.                (3)  "Psychoactive medication" has the meaning   assigned by Section 574.101.          Sec. 841.202.  ADMINISTRATION OF MEDICATION TO COMMITTED   PERSON. A person may not administer a psychoactive medication to a   committed person who refuses to take the medication voluntarily   unless:                (1)  the committed person is having a   medication-related emergency; or                (2)  the committed person is under an order issued   under Section 841.205 authorizing the administration of medication   regardless of the committed person's refusal.          Sec. 841.203.  PHYSICIAN'S APPLICATION FOR ORDER TO   AUTHORIZE PSYCHOACTIVE MEDICATION; DATE OF HEARING. (a) A   physician who is treating a committed person may, on behalf of the   state, file an application in a probate court or a court with   probate jurisdiction for an order to authorize the administration   of a psychoactive medication regardless of the committed person's   refusal if:                (1)  the physician believes that the committed person   lacks the capacity to make a decision regarding the administration   of the psychoactive medication;                (2)  the physician determines that the medication is   the proper course of treatment for the committed person;                (3)  the committed person is receiving mental health   services under Section 841.0835 or other law; and                (4)  the committed person, verbally or by other   indication, refuses to take the medication voluntarily.          (b)  An application filed under this section must state:                (1)  that the physician believes that the committed   person lacks the capacity to make a decision regarding   administration of the psychoactive medication and the reasons for   that belief;                (2)  each medication the physician wants the court to   compel the committed person to take;                (3)  whether the committed person is receiving mental   health services under Section 841.0835 or other law;                (4)  the physician's diagnosis of the committed person;   and                (5)  the proposed method for administering the   medication and, if the method is not customary, an explanation   justifying the departure from the customary methods.          (c)  An application filed under this section is separate from   an application for court-ordered mental health services.          (d)  A hearing on the application must be held not later than   the 30th day after the date the application was filed. If the   committed person is transferred to a mental health facility in   another county, the court may transfer the application to the   county where the committed person has been transferred.          (e)  Subject to the requirement in Subsection (d) that the   hearing be held not later than the 30th day after the date the   application was filed, the court may grant one continuance on a   party's motion and for good cause shown. The court may grant more   than one continuance only with the agreement of the parties.          Sec. 841.204.  RIGHTS OF COMMITTED PERSON. A committed   person for whom an application under Section 841.203 is filed is   entitled to:                (1)  representation by a court-appointed attorney who   is knowledgeable about issues to be adjudicated at the hearing;                (2)  meet with that attorney as soon as is practicable   to prepare for the hearing and to discuss any of the committed   person's questions or concerns;                (3)  receive, immediately after the time of the hearing   is set, a copy of the application and written notice of the time,   place, and date of the hearing;                (4)  be told, at the time personal notice of the hearing   is given, of the committed person's right to a hearing and right to   the assistance of an attorney to prepare for the hearing and to   answer any questions or concerns;                (5)  be present at the hearing;                (6)  request from the court an independent expert; and                (7)  be notified orally, at the conclusion of the   hearing, of the court's determinations of the committed person's   capacity and best interests.          Sec. 841.205.  HEARING AND ORDER AUTHORIZING PSYCHOACTIVE   MEDICATION. (a) The court may issue an order authorizing the   administration of one or more classes of psychoactive medication to   a committed person who is receiving mental health services under   Section 841.0835 or other law.          (b)  The court may issue an order under this section only if   the court finds by clear and convincing evidence after a hearing   that the committed person:                (1)  lacks the capacity to make a decision regarding   the administration of the proposed medication and treatment with   the proposed medication is in the best interest of the committed   person; or                (2)  as determined under Section 841.206, presents a   danger to the committed person or others in the civil commitment   center in which the committed person is being treated.          (c)  In making the finding that treatment with the proposed   medication is in the best interest of the committed person, the   court shall consider:                (1)  the committed person's expressed preferences   regarding treatment with psychoactive medication;                (2)  the committed person's religious beliefs;                (3)  the risks and benefits, from the perspective of   the committed person, of taking psychoactive medication;                (4)  the consequences to the committed person if the   psychoactive medication is not administered;                (5)  the prognosis for the committed person if the   committed person is treated with psychoactive medication;                (6)  alternative, less intrusive treatments that are   likely to produce the same results as treatment with psychoactive   medication; and                (7)  less intrusive treatments likely to secure the   committed person's agreement to take the psychoactive medication.          (d)  A hearing under this subchapter shall be conducted on   the record by the probate judge or judge with probate jurisdiction,   except as provided by Subsection (e).          (e)  A judge may refer a hearing to a magistrate or   court-appointed associate judge who has training regarding   psychoactive medications. The magistrate or associate judge may   provide the notice, set hearing dates, and appoint attorneys as   required by this subchapter. A record is not required if the   hearing is held by a magistrate or court-appointed associate judge.          (f)  A party is entitled to a hearing de novo by the judge if   an appeal of the magistrate's or associate judge's report is filed   with the court not later than the third day after the date the   report is issued. The hearing de novo must be held not later than   the 30th day after the date the application under Section 841.203   was filed.          (g)  If a hearing or an appeal of a magistrate's or associate   judge's report is to be held in a county court in which the judge is   not a licensed attorney, the committed person or the committed   person's attorney may request that the proceeding be transferred to   a court with a judge who is licensed to practice law in this state.   The county judge shall transfer the case after receiving the   request, and the receiving court shall hear the case as if it had   been originally filed in that court.          (h)  As soon as practicable after the conclusion of the   hearing, the committed person is entitled to have provided to the   committed person and the committed person's attorney written   notification of the court's determinations under this section. The   notification must include a statement of the evidence on which the   court relied and the reasons for the court's determinations.          (i)  An order issued under this section shall authorize the   administration to a committed person, regardless of the committed   person's refusal, of one or more classes of psychoactive   medications specified in the application and consistent with the   committed person's diagnosis. The order shall permit an increase   or decrease in a medication's dosage, continuation of medication   authorized but discontinued during the period the order is valid,   or the substitution of a medication within the same class.          (j)  The classes of psychoactive medications in the order   must conform to classes determined by the Health and Human Services   Commission.          (k)  An order issued under this section may be reauthorized   or modified on the petition of a party. The order remains in effect   pending action on a petition for reauthorization or modification.   For the purpose of this subsection, "modification" means a change   of a class of medication authorized in the order.          Sec. 841.206.  FINDING THAT COMMITTED PERSON PRESENTS A   DANGER. In making a finding under Section 841.205(b)(2) that the   committed person presents a danger to the committed person or   others in the civil commitment center in which the committed person   is being treated, the court shall consider:                (1)  an assessment of the committed person's present   mental condition;                (2)  whether the committed person has inflicted,   attempted to inflict, or made a serious threat of inflicting   substantial physical or emotional harm to the committed person's   self or to another while in the center; and                (3)  whether the committed person, in the 180-day   period preceding the date the committed person was placed in the   center, has inflicted, attempted to inflict, or made a serious   threat of inflicting substantial physical or emotional harm to   another.          Sec. 841.207.  COSTS. (a) The court shall order the payment   of reasonable compensation to attorneys, physicians, language   interpreters, sign interpreters, and associate judges appointed   under this subchapter. The compensation paid shall be assessed as   court costs.          (b)  The agency responsible for services under Section   841.0835(a) shall pay as provided by Subsection (a) the costs of a   hearing held under Section 841.205 regarding an order for the   administration of psychoactive medication to a committed person.          Sec. 841.208.  APPEAL. (a) An appeal from an order issued   under Section 841.205, or from a renewal or modification of an   order, must be filed in the court of appeals for the county in which   the order is issued.          (b)  Notice of appeal must be filed not later than the 10th   day after the date on which the order is issued.          (c)  When an appeal is filed, the clerk shall immediately   send a certified transcript of the proceedings to the court of   appeals.          (d)  An order issued under Section 841.205 is effective   pending an appeal of the order.          (e)  The court of appeals and supreme court shall give an   appeal under this section preference over all other cases and shall   advance the appeal on the docket. The courts may suspend all rules   relating to the time for filing briefs and docketing cases.          Sec. 841.209.  EXPIRATION OF ORDER. An order issued under   Section 841.205 expires on the first anniversary of the date the   order was issued.          SECTION 22.  The changes in law made by this Act in amending   Sections 20.02, 21.07, 21.08, 22.01, and 38.11, Penal Code, apply   only to an offense committed on or after the effective date of this   Act.  An offense committed before the effective date of this Act is   governed by the law in effect on the date 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 23.  Chapter 14A, Civil Practice and Remedies Code,   as added by this Act, applies only to an action filed on or after the   effective date of this Act.          SECTION 24.  Subchapter I, Chapter 841, Health and Safety   Code, as added by this Act, applies to a hearing ordering the   administration of psychoactive medication to a committed person   under that chapter that occurs on or after the effective date of   this Act, regardless of whether the applicable conduct of the   committed person being evaluated for that purpose occurred before,   on, or after the effective date of this Act.          SECTION 25.  This Act takes effect September 1, 2023.