87R24930 LHC-F     By: Zaffirini S.B. No. 49     (Murr)     Substitute the following for S.B. No. 49:  No.       A BILL TO BE ENTITLED   AN ACT   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 16.22, Code of Criminal Procedure, is   amended by amending Subsection (b-1) and adding Subsection (b-2) to   read as follows:          (b-1)  The magistrate shall provide copies of the written   report to:                (1)  the defense counsel;                (2)  [,] the attorney representing the state;                (3)  [, and] the trial court;                (4)  the sheriff or other person responsible for the   defendant's medical records while the defendant is confined in   county jail; and                (5)  as applicable:                      (A)  any personal bond office established under   Article 17.42 for the county in which the defendant is being   confined; or                      (B)  the director of the office or department that   is responsible for supervising the defendant while the defendant is   released on bail and receiving mental health or intellectual and   developmental disability services as a condition of bail.          (b-2)  The written report must include a description of the   procedures used in the interview and collection of other   information under Subsection (a)(1)(A) and the applicable expert's   observations and findings pertaining to:                (1)  whether the defendant is a person who has a mental   illness or is a person with an intellectual disability;                (2)  whether there is clinical evidence to support a   belief that the defendant may be incompetent to stand trial and   should undergo a complete competency examination under Subchapter   B, Chapter 46B; and                (3)  any appropriate or recommended treatment or   service.          SECTION 3.  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 4.  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 5.  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 6.  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 7.  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 8.  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 9.  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   [department] the funding necessary for the commission [department]   to operate a jail-based restoration of competency pilot program as   described by this article, the commission [department] shall   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 [department] shall   coordinate and allow for input from each participating county.          (b)  The commission [department] shall contract with a   provider of jail-based competency restoration services to provide   services under the pilot program if the commission [department]   develops a pilot program under this article.          (c)  The executive [Not later than November 1, 2013, the]   commissioner [of the department] shall adopt rules as necessary to   implement the pilot program. [In adopting rules under this article,   the commissioner shall specify the types of information the   department must collect during the operation of the pilot program   for use in evaluating the outcome of the pilot program.]          (f)  To contract with the commission [department] under   Subsection (b), a provider of jail-based competency restoration   services must [demonstrate to the department that]:                (1)  be [the provider:                      [(A)  has previously provided jail-based   competency restoration services for one or more years; or                      [(B)  is] a local mental health authority or local   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 [that has previously provided   competency restoration services]; and                (2)  contract with a county or counties to develop and   implement a jail-based competency restoration program.          (f-1)  The [the] provider's jail-based competency   restoration program must:                (1)  through the use of a multidisciplinary treatment   team, provide jail-based competency restoration services that are:                      (A)  [uses a multidisciplinary treatment team to   provide clinical treatment that is:                            [(i)]  directed toward the specific   objective of restoring the defendant's competency to stand trial;   and                      (B) [(ii)]  similar to other [the clinical   treatment provided as part of a] competency restoration programs   [program at an inpatient mental health facility];                (2)  employ [(B) employs] or contract [contracts] for   the services of at least one psychiatrist;                (3)  provide jail-based competency restoration   services through licensed or qualified mental health   professionals;                (4)  provide [and (C) provides] weekly competency   restoration [treatment] hours commensurate to the [treatment]   hours provided as part of other [a] competency restoration programs   [program at an inpatient mental health facility];                (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                [(3)  the provider is certified by a nationwide   nonprofit organization that accredits health care organizations   and programs, such as the Joint Commission on Health Care Staffing   Services, or the provider is a local mental health authority in good   standing with the department; and                [(4)  the provider has a demonstrated history of   successful jail-based competency restoration outcomes or, if the   provider is a local mental health authority, a demonstrated history   of successful competency restoration outcomes].          (g)  A contract under Subsection (b) must require the   designated provider to collect and submit to the commission   [department] the information specified by rules adopted under   Subsection (c).          (i)  A [The] 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 [conduct at least two full psychiatric   evaluations of the defendant during the period the defendant   receives competency restoration services in the jail.  The   psychiatrist must conduct one evaluation not later than the 21st   day and one evaluation not later than the 55th day after the date   the defendant begins to participate in the pilot program.  The   psychiatrist shall submit to the court a report concerning each   evaluation required under this subsection].          (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), [:                [(1)  for a defendant charged with a felony, the   defendant shall be transferred, without unnecessary delay and for   the remainder of the period prescribed by Article 46B.073(b), to   the first available facility that is appropriate for that defendant   as provided by Article 46B.073(c) or (d); and                [(2)  for a defendant charged with a misdemeanor, the   court may:                      [(A)  order a single extension under Article   46B.080 and the transfer of] the defendant shall be transferred   without unnecessary delay to the appropriate mental health   facility, [or] residential care facility, or outpatient competency   restoration program [as provided by Article 46B.073(d)] for the   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)  [under the extension;                [(B)]  proceed under Subchapter E or F;                (2) [(C)]  release the defendant on bail as permitted   under Chapter 17; or                (3) [(D)]  dismiss the charges in accordance with   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 [department] develops and implements   a jail-based restoration of competency pilot program under this   article, not later than December 1, 2021 [2018], the executive   commissioner [of the department] shall submit a report concerning   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 [department] during the pilot program   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 10.  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 [conduct at least two full psychiatric or   psychological evaluations of the defendant during the period the   defendant receives competency restoration services in the   jail.  The psychiatrist or psychologist must conduct one   evaluation not later than the 21st day and one evaluation not later   than the 55th day after the date the defendant is committed to the   program.  The psychiatrist or psychologist shall submit to the   court a report concerning each evaluation required under this   subsection].          (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), [the   defendant shall be transferred, without unnecessary delay and for   the remainder of the period prescribed by Article 46B.073(b), to   the first available facility that is appropriate for that defendant   as provided by Article 46B.073(c) or (d); and                [(2)  for a defendant charged with a misdemeanor, the   court may:                      [(A)  order a single extension under Article   46B.080 and, notwithstanding Articles 46B.073(e) and (f), the   transfer of] the defendant shall be transferred without unnecessary   delay to the appropriate mental health facility, [or] residential   care facility, or outpatient competency restoration program [as   provided by Article 46B.073(d)] for the 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: [under the extension;]                (1) [(B)]  proceed under Subchapter E or F;                (2) [(C)]  release the defendant on bail as permitted   under Chapter 17; or                (3) [(D)]  dismiss the charges in accordance with   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 11.  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 12.  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 [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].          SECTION 13.  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 14.  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 15.  The change in law made by this Act to Article   16.22, Code of Criminal Procedure, applies only to a person who is   arrested on or after the effective date of this Act. A person   arrested before the effective date of this Act is governed by the   law in effect on the date the person was arrested, and the former   law is continued in effect for that purpose.          SECTION 16.  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 17.  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 18.  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 19.  This Act takes effect September 1, 2021.