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CODE OF CRIMINAL PROCEDURE CHAPTER 46B.
INCOMPETENCY TO STAND TRIAL
SUBCHAPTER A. GENERAL PROVISIONS
Art. 46B.001. Definitions
Text of article effective January 1, 2004
In this chapter:
(1) "Department" means the Texas Department of Mental Health and
Mental Retardation.
(2) "Inpatient mental health facility" has the meaning assigned
by
Section 571.003, Health and Safety Code.
(3) "Local mental health authority" has the meaning assigned by
Section 571.003, Health and Safety Code.
(4) "Local mental retardation authority" has the meaning assigned
by Section 531.002, Health and Safety Code.
(5) "Mental health facility" has the meaning assigned by Section
571.003, Health and Safety Code.
(6) "Mental illness" has the meaning assigned by Section 571.003,
Health and Safety Code.
(7) "Mental retardation" has the meaning assigned by Section
591.003, Health and Safety Code.
(8) "Residential care facility" has the meaning assigned by Section
591.003, Health and Safety Code.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.002. Applicability
Text of article effective January 1, 2004
This chapter applies to a defendant charged with a felony or with a
misdemeanor punishable by confinement.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.003. Incompetency; Presumptions
Text of article effective January 1, 2004
(a) A person is incompetent to stand trial if the person does not
have:
(1) sufficient present ability to consult with the person's lawyer
with a reasonable degree of rational understanding; or
(2) a rational as well as factual understanding of the proceedings
against the person.
(b) A defendant is presumed competent to stand trial and shall be
found competent to stand trial unless proved incompetent by a
preponderance of the evidence.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.004. Raising Issue of Incompetency to Stand Trial
Text of article effective January 1, 2004
(a) Either party may suggest by motion, or the trial court may
suggest on its own motion, that the defendant may be incompetent to
stand trial. A motion suggesting that the defendant may be
incompetent to stand trial may be supported by affidavits setting
out the facts on which the suggestion is made.
(b) If evidence suggesting the defendant may be incompetent to
stand trial comes to the attention of the court, the court on its
own motion shall suggest that the defendant may be incompetent to
stand trial.
(c) On suggestion that the defendant may be incompetent to stand
trial, the court shall determine by informal inquiry whether there
is some evidence from any source that would support a finding that
the defendant may be incompetent to stand trial.
(d) If the court determines there is evidence to support a finding
of incompetency, the court, except as provided by Article
46B.005(d), shall stay all other proceedings in the case.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.005. Determining Incompetency to Stand Trial
Text of article effective January 1, 2004
(a) If after an informal inquiry the court determines that evidence
exists to support a finding of incompetency, the court shall order
an examination under Subchapter B to determine whether the
defendant is incompetent to stand trial.
(b) Except as provided by Subsection (c), the court shall hold a
hearing under Subchapter C before determining whether the defendant
is incompetent to stand trial.
(c) The court is not required to hold a hearing if:
(1) neither party requests a jury trial on the issue of
incompetency;
(2) neither party opposes a finding of incompetency; and
(3) the court does not, on its own motion, determine that a hearing
is necessary to determine incompetency.
(d) If the issue of the defendant's incompetency to stand trial is
raised after the trial begins, the court may determine the issue at
any time before sentencing. If the determination is delayed until
after the return of a verdict, the court shall make the
determination as soon as reasonably possible after the return. If a
verdict of not guilty is returned, the court may not determine the
issue of incompetency.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.006. Appointment of and Representation by Counsel
Text of article effective January 1, 2004
(a) A defendant is entitled to representation by counsel before any
court-ordered competency evaluation and during any proceeding at
which it is suggested that the defendant may be incompetent to stand
trial.
(b) If the defendant is indigent and the court has not appointed
counsel to represent the defendant, the court shall appoint counsel
as necessary to comply with Subsection (a).
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.007. Admissibility of Statements and Certain Other
Evidence
Text of article effective January 1, 2004
A statement made by a defendant during an examination or hearing on
the defendant's incompetency, the testimony of an expert based on
that statement, and evidence obtained as a result of that statement
may not be admitted in evidence against the defendant in any
criminal proceeding, other than at:
(1) a hearing on the defendant's incompetency; or
(2) any proceeding at which the defendant first introduces into
evidence a statement, testimony, or evidence described by this
section.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.008. Rules of Evidence
Text of article effective January 1, 2004
Notwithstanding Rule 101, Texas Rules of Evidence, the Texas Rules
of Evidence apply to a hearing under this chapter whether the
hearing is before a jury or before the court.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.009. Time Credits
Text of article effective January 1, 2004
A court sentencing a person convicted of a criminal offense shall
credit to the term of the person's sentence the time the person is
confined in a mental health facility or residential care facility
pending trial.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.010. Mandatory Dismissal of Misdemeanor Charges
Text of article effective January 1, 2004
If a court commits a defendant who is charged with a misdemeanor
punishable by confinement and the defendant is not tried before the
second anniversary of the date on which the order of commitment was
entered, the court on the motion of the attorney representing the
state shall dismiss the charge.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.011. Appeals
Text of article effective January 1, 2004
Neither the state nor the defendant is entitled to make an
interlocutory appeal relating to a determination of incompetency
under Article 46B.005.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.012. Compliance With Chapter
Text of article effective January 1, 2004
The failure of a person to comply with this chapter does not provide
a defendant with a right to dismissal of charges.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
SUBCHAPTER B. EXAMINATION
Art. 46B.021. Appointment of Experts
Text of article effective January 1, 2004
(a) On a suggestion that the defendant may be incompetent to stand
trial, the court may appoint one or more disinterested experts to:
(1) examine the defendant and report to the court on the competency
or incompetency of the defendant; and
(2) testify as to the issue of competency or incompetency of the
defendant at any trial or hearing involving that issue.
(b) On a determination that evidence exists to support a finding of
incompetency to stand trial, the court shall appoint one or more
experts to perform the duties described by Subsection (a).
(c) An expert involved in the treatment of the defendant may not be
appointed to examine the defendant under this article.
(d) The movant or other party as directed by the court shall provide
to experts appointed under this article information relevant to a
determination of the defendant's competency, including copies of
the indictment or information, any supporting documents used to
establish probable cause in the case, and previous mental health
evaluation and treatment records.
(e) The court may appoint as experts under this chapter qualified
psychiatrists or psychologists employed by the local mental health
authority or local mental retardation authority. The local mental
health authority or local mental retardation authority is entitled
to compensation and reimbursement as provided by Article 46B.027.
(f) If a defendant wishes to be examined by an expert of the
defendant's own choice, the court on timely request shall provide
the expert with reasonable opportunity to examine the defendant.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.022. Experts: Qualifications
Text of article effective January 1, 2004
(a) To qualify for appointment under this subchapter as an expert, a
psychiatrist or psychologist must:
(1) as appropriate, be a physician licensed in this state or be a
psychologist licensed in this state who has a doctoral degree in
psychology; and
(2) have the following certification or experience or training:
(A) as appropriate, certification by:
(i) the American Board of Psychiatry and Neurology with added or
special qualifications in forensic psychiatry; or
(ii) the American Board of Professional Psychology in forensic
psychology; or
(B) experience or training consisting of:
(i) at least 24 hours of specialized forensic training relating to
incompetency or insanity evaluations;
(ii) for an appointment made before January 1, 2005, at least five
years of experience before January 1, 2004, in performing criminal
forensic evaluations for courts; or
(iii) for an appointment made on or after January 1, 2005, at least
five years of experience before January 1, 2004, in performing
criminal forensic evaluations for courts and eight or more hours of
continuing education relating to forensic evaluations, completed
in the 12 months preceding the appointment and documented with the
court.
(b) In addition to meeting qualifications required by Subsection
(a), to be appointed as an expert a psychiatrist or psychologist
must have completed six hours of required continuing education in
courses in forensic psychiatry or psychology, as appropriate, in
either of the reporting periods in the 24 months preceding the
appointment.
(c) A court may appoint as an expert a psychiatrist or psychologist
who does not meet the requirements of Subsections (a) and (b) only
if exigent circumstances require the court to base the appointment
on professional training or experience of the expert that directly
provides the expert with a specialized expertise to examine the
defendant that would not ordinarily be possessed by a psychiatrist
or psychologist who meets the requirements of Subsections (a) and
(b).
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.023. Custody Status
Text of article effective January 1, 2004
During an examination under this subchapter, except as otherwise
ordered by the court, the defendant shall be maintained under the
same custody or status as the defendant was maintained under
immediately before the examination began.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.024. Factors Considered in Examination
Text of article effective January 1, 2004
During an examination under this subchapter and in any report based
on that examination, an expert shall consider, in addition to other
issues determined relevant by the expert, the following:
(1) the capacity of the defendant during criminal proceedings to:
(A) rationally understand the charges against the defendant and the
potential consequences of the pending criminal proceedings;
(B) disclose to counsel pertinent facts, events, and states of
mind;
(C) engage in a reasoned choice of legal strategies and options;
(D) understand the adversarial nature of criminal proceedings;
(E) exhibit appropriate courtroom behavior; and
(F) testify;
(2) whether the defendant has a diagnosable mental illness or is a
person with mental retardation;
(3) the impact of the mental illness or mental retardation, if
existent, on the defendant's capacity to engage with counsel in a
reasonable and rational manner; and
(4) if the defendant is taking psychoactive or other medication:
(A) whether the medication is necessary to maintain the defendant's
competency; and
(B) the effect, if any, of the medication on the defendant's
appearance, demeanor, or ability to participate in the proceedings.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.025. Expert's Report
Text of article effective January 1, 2004
(a) An expert's report to the court must state an opinion on a
defendant's competency or incompetency to stand trial or explain
why the expert is unable to state such an opinion and must also:
(1) identify and address specific issues referred to the expert for
evaluation;
(2) document that the expert explained to the defendant the purpose
of the evaluation, the persons to whom a report on the evaluation is
provided, and the limits on rules of confidentiality applying to
the relationship between the expert and the defendant;
(3) in general terms, describe procedures, techniques, and tests
used in the examination and the purpose of each procedure,
technique, or test; and
(4) state the expert's clinical observations, findings, and
opinions on each specific issue referred to the expert by the court,
and state specifically any issues on which the expert could not
provide an opinion.
(b) If in the opinion of an expert appointed under Article 46B.021
the defendant is incompetent to proceed, the expert shall state in
the report:
(1) the exact nature of the deficits resulting from the defendant's
mental illness or mental retardation, if any, that impact the
factors listed in Article 46B.024, contributing to the defendant's
incompetency; and
(2) prospective treatment options, if any, appropriate for the
defendant.
(c) An expert's report may not state the expert's opinion on the
defendant's sanity at the time of the alleged offense, if in the
opinion of the expert the defendant is incompetent to proceed.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.026. Report Deadline
Text of article effective January 1, 2004
(a) Except as provided by Subsection (b), an expert examining the
defendant shall provide the report on the defendant' s competency
or incompetency to stand trial to the court, the attorney
representing the state, and the attorney representing the defendant
not later than the 30th day after the date on which the expert was
ordered to examine the defendant and prepare the report.
(b) For good cause shown, the court may permit an expert to complete
the examination and report and provide the report to the court and
attorneys at a date later than the date required by Subsection (a).
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.027. Compensation of Experts; Reimbursement of Facilities
Text of article effective January 1, 2004
(a) For any appointment under this chapter, the county in which the
indictment was returned or information was filed shall pay for
services described by Articles 46B.021(a)(1) and (2). If those
services are provided by an expert who is an employee of the local
mental health authority or local mental retardation authority, the
county shall pay the authority for the services.
(b) The county in which the indictment was returned or information
was filed shall reimburse a facility that accepts a defendant for
examination under this chapter for expenses incurred that are
determined by the department to be reasonably necessary and
incidental to the proper examination of the defendant.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
SUBCHAPTER C. INCOMPETENCY HEARING AND TRIAL
Art. 46B.051. Hearing Before Judge or Jury
Text of article effective January 1, 2004
(a) If a court holds a hearing to determine whether the defendant is
incompetent to stand trial, on the request of either party or the
motion of the court, a jury shall make the determination.
(b) The court shall make the determination of incompetency if a jury
determination is not required by Subsection (a).
(c) If a jury determination is required by Subsection (a), a jury
that has not been selected to determine the guilt or innocence of
the defendant must determine the issue of incompetency.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.052. Jury Verdict
Text of article effective January 1, 2004
(a) If a jury determination of the issue of incompetency to stand
trial is required by Article 46B.051(a), the court shall require
the jury to state in its verdict whether the defendant is
incompetent to stand trial.
(b) The verdict must be concurred in by each juror.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.053. Procedure After Finding of Competency
Text of article effective January 1, 2004
If at a hearing the court or jury determines that the defendant is
competent to stand trial, the court shall continue the trial on the
merits. If a jury determines that the defendant is competent and
the trial on the merits is to be held before a jury, the court shall
continue the trial with another jury selected for that purpose.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.054. Uncontested Incompetency
Text of article effective January 1, 2004
If the court finds as required by Article 46B.005 that there is
evidence to support a finding of incompetency to stand trial and the
court and each party agree that the defendant is incompetent to
stand trial, the court shall proceed in the same manner as if a jury
had been impaneled and had found the defendant incompetent to stand
trial.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.055. Procedure After Finding of Incompetency
Text of article effective January 1, 2004
If the defendant is found incompetent to stand trial, the court
shall proceed under Subchapter D.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
SUBCHAPTER D. PROCEDURES ON DETERMINATION OF INCOMPETENCY
Art. 46B.071. Options on Determination of Incompetency
Text of article effective January 1, 2004
On a determination that a defendant is incompetent to stand trial,
the court shall:
(1) commit the defendant to a facility under Article 46B.073; or
(2) release the defendant on bail under Article 46B.072.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.072. Release on Bail
Text of article effective January 1, 2004
If the court determines that a defendant found incompetent to stand
trial is not a danger to others and may be safely treated on an
outpatient basis for the purpose of attaining competency to stand
trial, the court may release the defendant on bail or continue the
defendant's release on bail, subject to conditions reasonably
related to assuring public safety and the effectiveness of the
defendant's treatment.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.073. Commitment for Restoration to Competency
Text of article effective January 1, 2004
(a) This article applies only to a defendant not released on bail.
(b) The court shall commit a defendant described by Subsection (a)
to a mental health facility or residential care facility for a
period not to exceed 120 days for further examination and treatment
toward the specific objective of attaining competency to stand
trial.
(c) If the defendant is charged with an offense listed in Article
17.032(a) or the indictment requests an affirmative finding under
Section 3g(a)(2), Article 42.12, the court shall enter an order
committing the defendant to the maximum security unit of any
facility designated by the department, to an agency of the United
States operating a mental hospital, or to a Department of Veterans
Affairs hospital.
(d) If the defendant is not charged with an offense listed in
Article 17.032(a) and the indictment does not request an
affirmative finding under Section 3g(a)(2), Article 42.12, the
court shall enter an order committing the defendant to a mental
health facility or residential care facility determined to be
appropriate by the local mental health authority or local mental
retardation authority.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.074. Competent Testimony Required
Text of article effective January 1, 2004
A defendant may be committed to a mental health facility or
residential care facility under this subchapter only on competent
medical or psychiatric testimony.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.075. Transfer of Defendant to Facility
Text of article effective January 1, 2004
A commitment order issued under this subchapter must place the
defendant in the custody of the sheriff for transportation to the
facility in which the defendant is to be confined.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.076. Court's Order
Text of article effective January 1, 2004
(a) If the defendant is found incompetent to stand trial, the court
shall send a copy of the order to the facility to which the
defendant is committed not later than the date the defendant is
committed to the facility. The court shall also provide to the
facility copies of the following made available to the court during
the incompetency hearing:
(1) reports of each expert;
(2) psychiatric, psychological, or social work reports that relate
to the mental condition of the defendant;
(3) documents provided by the attorney representing the state or
the attorney representing the defendant that relate to the
defendant's current or past mental condition;
(4) copies of the indictment or information and any supporting
documents used to establish probable cause in the case;
(5) the defendant's criminal history record; and
(6) the addresses of the attorney representing the state and the
attorney representing the defendant.
(b) The court shall order that the transcript of all medical
testimony received by the jury or court be promptly prepared by the
court reporter and forwarded to the proper facility.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.077. Individual Treatment Program
Text of article effective January 1, 2004
(a) The facility to which the defendant is committed shall:
(1) develop an individual program of treatment;
(2) assess and evaluate whether the defendant will obtain
competency in the foreseeable future; and
(3) report to the court and to the local mental health authority or
to the local mental retardation authority on the defendant's
progress toward achieving competency.
(b) If the defendant is committed to an inpatient mental health
facility or to a residential care facility, the facility shall
report to the court at least once during the commitment period. If
the defendant is released to a treatment program not provided by an
inpatient mental health facility or a residential care facility,
the treatment program shall report to the court:
(1) not later than the 14th day after the date on which the
defendant's treatment begins; and
(2) until the defendant is no longer released to the treatment
program, at least once during each 30-day period following the date
of the report required by Subdivision (1).
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.078. Charges Subsequently Dismissed
Text of article effective January 1, 2004
If the charges pending against a defendant are dismissed, the
committing court shall send a copy of the order of dismissal to the
sheriff of the county in which the committing court is located and
to the head of the facility in which the defendant is held. On
receipt of the copy of the order, the facility shall discharge the
defendant into the care of the sheriff for transportation in the
manner described by Article 46B.082.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.079. Return to Committing Court
Text of article effective January 1, 2004
A defendant committed under this subchapter shall be returned to
the committing court as soon as practicable after the earliest of
the following dates:
(1) the date on which the facility determines that the defendant has
attained competency;
(2) the date on which the facility determines that the defendant
will not attain competency in the foreseeable future; or
(3) the date on which the term of commitment expires.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.080. Notice to Committing Court
Text of article effective January 1, 2004
(a) The head of a facility to which a defendant has been committed
under this subchapter, not later than the 14th day before the date
on which a commitment order is to expire, shall notify the
committing court that the term of the commitment is about to expire.
(b) The head of the facility to which a defendant has been committed
under this subchapter shall promptly notify the committing court
when the head of the facility is of the opinion that:
(1) the defendant has attained competency to stand trial; or
(2) the defendant will not attain competency in the foreseeable
future.
(c) If the head of the facility to which the defendant has been
committed notifies the court that the commitment order is about to
expire, the notice may contain a request for an extension of the
commitment order for a period of 60 days and an explanation for the
basis of the request.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.081. Extension of Commitment Order
Text of article effective January 1, 2004
(a) On the request of the head of a facility made under Article
46B.080(c), the court may enter an order extending the term of the
commitment order for a period of 60 days.
(b) The court may enter an order under Subsection (a) only if the
court determines that, on the basis of information provided by the
head of the facility:
(1) the defendant has not attained competency; and
(2) an extension of the term of the commitment order will likely
enable the facility to restore the defendant to competency.
(c) The court may grant only one extension under this article for
the term of a defendant's commitment order.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.082. Transportation of Defendant
Text of article effective January 1, 2004
(a) On notification from the committing court under Article
46B.078, the sheriff of the county in which the committing court is
located or the sheriff's designee shall transport the defendant to
the committing court.
(b) If a defendant committed to a maximum security unit of a
facility of the department has not been transported from the unit
before the 15th day after the date on which the court received
notification under Article 46B.080(a), the head of that facility
shall cause the defendant to be promptly transported to the
committing court and placed in the custody of the sheriff of the
county in which the committing court is located. The county in
which the committing court is located shall reimburse the
department for the mileage and per diem expenses of the personnel
required to transport the defendant, calculated in accordance with
rates provided in the General Appropriations Act for state
employees.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.083. Report by Facility Head
Text of article effective January 1, 2004
(a) When the head of a facility to which the defendant is committed
discharges the defendant and the defendant is returned to the
committing court, the head of the facility shall file a final report
with the court stating the reason for the discharge under Article
46B.080. The court shall furnish copies of the report to the
defense counsel and the prosecuting attorney.
(b) If the head of the facility believes that the defendant is a
person with mental illness and meets the criteria for court-ordered
inpatient mental health services under Subtitle C, Title 7, Health
and Safety Code, the head of the facility shall have submitted to
the court a certificate of medical examination for mental illness.
The head of the facility shall include in the final report a list of
the types and dosages of medications with which the defendant was
treated for mental illness while in the facility.
(c) If the head of the facility is of the opinion that the defendant
is a person with mental retardation, the head of the facility shall
have submitted to the court an affidavit stating the conclusions
reached as a result of the examination.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.084. Proceedings on Return of Defendant to Court
Text of article effective January 1, 2004
(a) On the return of a defendant to the committing court, the court
shall make a determination with regard to the defendant's
competency to stand trial. The court may make the determination
based solely on the report filed under Article 46B.080(b), unless
any party objects in writing or in open court to the findings of the
report not later than the 15th day after the date on which the
report is served on the parties.
(b) If a party objects under Subsection (a), the issue shall be set
for a hearing. The hearing is before the court, except that on
motion by the defendant, the defense counsel, the prosecuting
attorney, or the court, the hearing shall be held before a jury.
(c) The hearing shall be held within 30 days following the date of
objection unless continued for good cause.
(d) If the defendant is found competent to stand trial, criminal
proceedings against the defendant may be resumed.
(e) If the defendant is found incompetent to stand trial and if all
charges pending against the defendant are not dismissed, the court
shall proceed under Subchapter E.
(f) If the defendant is found incompetent to stand trial and if all
charges pending against the defendant are dismissed, the court
shall proceed under Subchapter F.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.085. Recommitment Prohibited
Text of article effective January 1, 2004
A defendant committed under this subchapter may not be recommitted
under this subchapter in connection with the same offense.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.086. Court-ordered Medications
Text of article effective January 1, 2004
(a) This article applies only to a defendant:
(1) who after having been determined under this chapter to be
incompetent to stand trial is subsequently determined to be
competent to stand trial; and
(2) for whom a continuity of care plan has been prepared by a
facility that requires the defendant to take psychoactive
medications.
(b) If a defendant described by Subsection (a) refuses to take
psychoactive medications as required by the defendant's continuity
of care plan, the director of the correctional facility shall
notify the court in which the criminal proceedings are pending of
that fact not later than the end of the next business day following
the refusal. The court shall promptly notify the attorney
representing the state and the attorney representing the defendant
of the defendant's refusal. The attorney representing the state
may file a written motion to compel medication. The court, after
notice and after a hearing that is held as soon as practicable, may
authorize the director of a correctional facility to have the
medication administered to the defendant, by reasonable force if
necessary.
(c) The court may issue an order under this article only if the
order is supported by the testimony of two physicians, one of whom
is the physician at the correctional facility who is prescribing
the medication as a component of the defendant's continuity of care
plan and another who is not otherwise involved in proceedings
against the defendant. The court may require either or both
physicians to examine the defendant and report on the examination
to the court.
(d) The court may issue an order under this article if the court
finds by clear and convincing evidence that:
(1) the prescribed medication is medically appropriate, is in the
best medical interest of the defendant, and does not present side
effects that cause harm to the defendant that is greater than the
medical benefit to the defendant;
(2) the state has a clear and compelling interest in the defendant
maintaining competency to stand trial;
(3) no other less invasive means of maintaining the defendant's
competency exists; and
(4) the prescribed medication will not unduly prejudice the
defendant's rights or use of defensive theories at trial.
(e) A statement made by a defendant to a physician during an
examination under Subsection (c) may not be admitted against the
defendant in any criminal proceeding, other than at:
(1) a hearing on the defendant's incompetency; or
(2) any proceeding at which the defendant first introduces into
evidence the contents of the statement.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
SUBCHAPTER E. EXTENDED COMMITMENT: CHARGES PENDING
Art. 46B.101. Applicability
Text of article effective January 1, 2004
This subchapter applies to a defendant against whom a court is
required to proceed under Article 46B.084(e).
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.102. Commitment Hearing: Mental Illness
Text of article effective January 1, 2004
(a) If it appears to the court that the defendant may be a person
with mental illness, the court shall hold a hearing to determine
whether the defendant should be committed to a mental health
facility.
(b) Proceedings for commitment of the defendant to a mental health
facility 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 whether or not the criminal court is also the county
court.
(c) If the court enters an order committing the defendant to a
mental health facility, the defendant shall be:
(1) treated in conformity with Subtitle C, Title 7, Health and
Safety Code, except as otherwise provided by this chapter; and
(2) released in conformity with Article 46B.107.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.103. Commitment Hearing: Mental Retardation
Text of article effective January 1, 2004
(a) If it appears to the court that the defendant may be a person
with mental retardation, the court shall hold a hearing to
determine whether the defendant is a person with mental
retardation.
(b) Proceedings for commitment of the defendant to a residential
care facility are governed by Subtitle D, Title 7, Health and Safety
Code, to the extent that Subtitle D applies and does not conflict
with this chapter, except that the criminal court shall conduct the
proceedings whether or not the criminal court is also a county
court.
(c) If the court enters an order committing the defendant to a
residential care facility, the defendant shall be:
(1) treated and released in accordance with Subtitle D, Title 7,
Health and Safety Code, except as otherwise provided by this
chapter; and
(2) released in conformity with Article 46B.107.
(d) In the proceedings conducted under this subchapter:
(1) an application for court-ordered temporary or extended mental
health services or to have the defendant declared a person with
mental retardation may not be required;
(2) the provisions of Subtitles C and D, Title 7, Health and Safety
Code, relating to notice of hearing do not apply; and
(3) appeals from the criminal court proceedings are to the court of
appeals as in the proceedings for court-ordered inpatient mental
health services under Subtitle C, Title 7, Health and Safety Code,
or for commitment to a residential care facility under Subtitle D,
Title 7, Health and Safety Code.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.104. Extended Commitment Placement: Finding of Violence
Text of article effective January 1, 2004
A defendant committed to a facility as a result of proceedings
initiated under this chapter shall be committed to the maximum
security unit of any facility designated by the department if:
(1) the defendant is charged with an offense listed in Article
17.032(a); or
(2) the indictment charging the offense requests an affirmative
finding under Section 3g(a)(2), Article 42.12.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.105. Transfer Following Extended Commitment Placement
Text of article effective January 1, 2004
(a) Unless a defendant is determined to be manifestly dangerous by
a department review board, not later than the 60th day after the
date the defendant arrives at the maximum security unit, the
defendant shall be transferred to:
(1) a unit of an inpatient mental health facility other than a
maximum security unit;
(2) a residential care facility; or
(3) a program designated by a local mental health authority or a
local mental retardation authority.
(b) The commissioner of mental health and mental retardation shall
appoint a review board of five members, including one psychiatrist
licensed to practice medicine in this state and two persons who work
directly with persons with mental illness or mental retardation, to
determine whether the defendant is manifestly dangerous and, as a
result of the danger the defendant presents, requires continued
placement in a maximum security unit.
(c) The review board may not make a determination as to the
defendant's need for treatment.
(d) A finding that the defendant is not manifestly dangerous is not
a medical determination that the defendant no longer meets the
criteria for involuntary civil commitment under Subtitle C or D,
Title 7, Health and Safety Code.
(e) If the superintendent of the facility at which the maximum
security unit is located disagrees with the determination, the
matter shall be referred to the commissioner of mental health and
mental retardation. The commissioner shall decide whether the
defendant is manifestly dangerous.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.106. Extended Commitment Placement: no Finding of
Violence
Text of article effective January 1, 2004
(a) A defendant committed to a facility as a result of the
proceedings initiated under this chapter, other than a defendant
described by Article 46B.104, shall be committed to a facility
designated by the local mental health authority or local mental
retardation authority to serve the catchment area in which the
committing court is located.
(b) A facility may not refuse to accept a placement ordered under
this article on the grounds that criminal charges against the
defendant are pending.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.107. Release of Defendant After Commitment
Text of article effective January 1, 2004
(a) The release from the department or a facility of a defendant
committed under this chapter is subject to disapproval by the
committing court if the court or the attorney representing the
state has notified the head of the facility to which the defendant
has been committed that a criminal charge remains pending against
the defendant.
(b) If the head of the facility to which a defendant has been
committed under this chapter determines that the defendant should
be released from the facility, the head of the facility shall notify
the committing court and the sheriff of the county from which the
defendant was committed in writing of the release not later than the
14th day before the date on which the facility intends to release
the defendant.
(c) The head of the facility shall provide with the notice a written
statement that states an opinion as to whether the defendant to be
released has attained competency to stand trial.
(d) The court may, on motion of the attorney representing the state
or on its own motion, hold a hearing to determine whether release is
appropriate under the applicable criteria in Subtitle C or D, Title
7, Health and Safety Code.
(e) If the court determines that release is not appropriate, the
court shall enter an order directing the head of the facility to not
release the defendant.
(f) If an order is entered under Subsection (e), any subsequent
proceeding to release the defendant is subject to this article.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.108. Redetermination of Competency
Text of article effective January 1, 2004
(a) If criminal charges against a defendant found incompetent to
stand trial have not been dismissed, the trial court at any time may
determine whether the defendant has been restored to competency.
(b) An inquiry into restoration of competency under this subchapter
may be made at the request of the head of the mental health facility
or residential care facility to which the defendant has been
committed, the defendant, or the attorney representing the state,
or may be made on the court's own motion.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.109. Request by Head of Facility
Text of article effective January 1, 2004
(a) The head of a facility to which a defendant has been committed
as a result of a finding of incompetency to stand trial may request
the court to determine that the defendant has been restored to
competency.
(b) The head of the facility shall provide with the request a
written statement that in the opinion of the head of the facility
the defendant is competent to stand trial.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.110. Motion by Defendant or Attorney Representing State
Text of article effective January 1, 2004
(a) The defendant or the attorney representing the state may move
that the court determine that the defendant has been restored to
competency.
(b) A motion for a determination of competency may be accompanied by
affidavits supporting the moving party's assertion that the
defendant is competent.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.111. Appointment of Examiners
Text of article effective January 1, 2004
On the filing of a request or motion to determine that the defendant
has been restored to competency or on the court's decision on its
own motion to inquire into restoration of competency, the court may
appoint disinterested experts to examine the defendant in
accordance with Subchapter B.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.112. Determination of Restoration With Agreement
Text of article effective January 1, 2004
On the filing of a request or motion to determine that the defendant
has been restored to competency or on the court's decision on its
own motion to inquire into restoration of competency, the court
shall find the defendant competent to stand trial and proceed in the
same manner as if the defendant had been found restored to
competency at a hearing if:
(1) both parties agree that the defendant is competent to stand
trial; and
(2) the court concurs.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.113. Determination of Restoration Without Agreement
Text of article effective January 1, 2004
(a) The court shall hold a hearing on a request by the head of a
facility to which a defendant has been committed as a result of a
finding of incompetency to stand trial to determine whether the
defendant has been restored to competency.
(b) The court may hold a hearing on a motion to determine whether
the defendant has been restored to competency or on the court's
decision on its own motion to inquire into restoration of
competency, and shall hold a hearing if a motion and any supporting
material establish good reason to believe the defendant may have
been restored to competency.
(c) If a court holds a hearing under this article, on the request of
either party or the motion of the court a jury shall make the
determination.
(d) If the head of a facility to which the defendant was committed
as a result of a finding of incompetency to stand trial has provided
an opinion that the defendant has regained competency, competency
is presumed at a hearing under this subchapter and continuing
incompetency must be proved by a preponderance of the evidence.
(e) If the head of a facility has not provided an opinion described
by Subsection (d), incompetency is presumed at a hearing under this
subchapter and the defendant's competency must be proved by a
preponderance of the evidence.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.114. Transportation of Defendant to Court
Text of article effective January 1, 2004
An order setting a hearing to determine whether the defendant has
been restored to competency shall direct that the defendant be
placed in the custody of the sheriff of the county in which the
committing court is located or the sheriff's designee for
transportation to the court.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.115. Subsequent Redeterminations of Competency
Text of article effective January 1, 2004
(a) If the court has made a determination that a defendant has not
been restored to competency under this subchapter, a subsequent
request or motion for a redetermination of competency filed before
the 91st day after the date of that determination must:
(1) explain why the person making the request or motion believes
another inquiry into restoration is appropriate; and
(2) provide support for the belief.
(b) The court may hold a hearing on a request or motion under this
article only if the court first finds reason to believe the
defendant's condition has materially changed since the prior
determination that the defendant was not restored to competency.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.116. Disposition on Determination of Competency
Text of article effective January 1, 2004
If the defendant is found competent to stand trial, the proceedings
on the criminal charge may proceed.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Art. 46B.117. Disposition on Determination of Incompetency
Text of article effective January 1, 2004
(a) If a defendant under order of commitment to a facility is found
to not have been restored to competency to stand trial, the court
shall remand the defendant pursuant to that order of commitment,
and order the defendant placed in the custody of the sheriff or the
sheriff's designee for transportation back to the facility.
(b) If a defendant not under order of commitment is found to not
have been restored to competency to stand trial, the court shall
order the defendant's custody status to remain unchanged.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
SUBCHAPTER F. EXTENDED COMMITMENT: CHARGES DISMISSED
Art. 46B.151. Court Determination Related to Commitment
Text of article effective January 1, 2004
(a) If a court is required by Article 46B.084(f) to proceed under
this subchapter, the court shall determine whether there is
evidence to support a finding that the defendant is either a person
with mental illness or a person with mental retardation.
(b) If it appears to the court that there is evidence to support a
finding of mental illness or mental retardation, the court shall
enter an order transferring the defendant to the appropriate court
for civil commitment proceedings and stating that all charges
pending against the defendant in that court have been dismissed.
The court may order the defendant:
(1) detained in jail or any other suitable place pending the prompt
initiation and prosecution by the attorney for the state or other
person designated by the court of appropriate civil proceedings to
determine whether the defendant will be committed to a mental
health facility or residential care facility; or
(2) placed in the care of a responsible person on satisfactory
security being given for the defendant's proper care and
protection.
(c) Notwithstanding Subsection (b), a defendant placed in a
facility of the department pending civil hearing under this article
may be detained in that facility only with the consent of the head
of the facility and pursuant to an order of protective custody
issued under Subtitle C, Title 7, Health and Safety Code.
(d) If the court does not detain or place the defendant under
Subsection (b), the court shall release the defendant.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
SUBCHAPTER G. PROVISIONS APPLICABLE TO SUBCHAPTERS E AND F
Art. 46B.171. Transcripts; Documentation
Text of article effective January 1, 2004
The court shall order that:
(1) a transcript of all medical testimony received in both the
criminal proceedings and the civil commitment proceedings under
Subchapter E or F be prepared as soon as possible by the court
reporters; and
(2) copies of documents listed in Article 46B.076 accompany the
defendant to the mental health facility or residential care
facility.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
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