By: Williams	S.B. No. 931
	(In the Senate - Filed February 24, 2011; March 8, 2011,
	read first time and referred to Committee on Criminal Justice;
	May 2, 2011, reported adversely, with favorable Committee
	Substitute by the following vote:  Yeas 6, Nays 0; May 2, 2011,
	sent to printer.)
	COMMITTEE SUBSTITUTE FOR S.B. No. 931	By:  Huffman

	A BILL TO BE ENTITLED
	AN ACT
	relating to the determination of incompetency in criminal cases.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1.  Subsection (a), Section 2, Article 42.03, Code
	of Criminal Procedure, is amended to read as follows:
	(a)  In all criminal cases the judge of the court in which the
	defendant is convicted shall give the defendant credit on the
	defendant's sentence for the time that the defendant has spent:
	(1)  in jail for the case, including confinement served
	as described by Article 46B.009 and excluding [other than]
	confinement served as a condition of community supervision, from
	the time of his arrest and confinement until his sentence by the
	trial court; [or]
	(2)  in a substance abuse treatment facility operated
	by the Texas Department of Criminal Justice under Section 493.009,
	Government Code, or another court-ordered residential program or
	facility as a condition of deferred adjudication community
	supervision granted in the case if the defendant successfully
	completes the treatment program at that facility; or
	(3)  confined in a mental health facility or
	residential care facility as described by Article 46B.009.
	SECTION 2.  Article 46B.009, Code of Criminal Procedure, is
	amended to read as follows:
	Art. 46B.009.  TIME CREDITS.  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
	time] the person may be [is] confined in a mental health facility,
	residential care facility, or jail:
	(1)  any period of confinement that occurs pending a
	determination [trial] 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.
	SECTION 3.  Article 46B.0095, Code of Criminal Procedure, is
	amended to read as follows:
	Art. 46B.0095.  MAXIMUM PERIOD OF [FACILITY] COMMITMENT OR
	OUTPATIENT TREATMENT PROGRAM PARTICIPATION DETERMINED BY MAXIMUM
	TERM FOR OFFENSE. (a)  A defendant may not, under Subchapter D or E
	or any other provision of this chapter, be committed to a mental
	hospital or other inpatient or residential facility, ordered to
	participate in an outpatient treatment program, or subjected to
	both inpatient and outpatient treatment for a cumulative period
	that exceeds the maximum term provided by law for the offense for
	which the defendant was to be tried, except that if the defendant is
	charged with a misdemeanor and has been ordered only to participate
	in an outpatient treatment program under Subchapter D or E, the
	maximum period of restoration is two years [beginning on the date of
	the initial order for outpatient treatment program participation
	was entered].
	(b)  On expiration of the maximum restoration period under
	Subsection (a), the defendant may be confined for an additional
	period in a mental hospital or other inpatient or residential
	facility or ordered to participate for an additional period in an
	outpatient treatment program, as appropriate, only pursuant to
	civil [commitment] proceedings conducted under Subtitle C or D,
	Title 7, Health and Safety Code, by a court with probate
	jurisdiction.
	(c)  The cumulative period described by Subsection (a):
	(1)  begins on the date the initial order of commitment
	or initial order for outpatient treatment program participation is
	entered under this chapter; and
	(2)  in addition to any inpatient or outpatient
	treatment periods described by Subsection (a), includes any time
	that, following the entry of an order described by Subdivision (1),
	the defendant is confined in a correctional facility, as defined by
	Section 1.07, Penal Code, or is otherwise in the custody of the
	sheriff during or while awaiting, as applicable:
	(A)  the defendant's transfer to a mental hospital
	or other inpatient or residential facility;
	(B)  the defendant's release on bail to
	participate in an outpatient treatment program; or
	(C)  a criminal trial following any temporary
	restoration of the defendant's competency to stand trial.
	(d)  The court shall credit to the cumulative period
	described by Subsection (a) any time that a defendant, following
	arrest for the offense for which the defendant was to be tried, is
	confined in a correctional facility, as defined by Section 1.07,
	Penal Code, before the initial order of commitment or initial order
	for outpatient treatment program participation is entered under
	this chapter.
	SECTION 4.  Article 46B.010, Code of Criminal Procedure, is
	amended to read as follows:
	Art. 46B.010.  MANDATORY DISMISSAL OF MISDEMEANOR CHARGES.
	If a court orders that a defendant charged with a misdemeanor
	punishable by confinement be committed to a mental hospital or
	other inpatient or residential facility, participate in an
	outpatient treatment program, or be subjected to both inpatient and
	outpatient treatment, [the commitment of or participation in an
	outpatient treatment program by a defendant who is charged with a
	misdemeanor punishable by confinement] and the defendant is not
	tried before the [date of] expiration of the maximum period of
	restoration [under this chapter as] described by Article 46B.0095:
	(1)  on the motion of the attorney representing the
	state, the court shall dismiss the charge; or
	(2)  on the motion of the attorney representing the
	defendant and notice to the attorney representing the state, the
	court:
	(A)  shall set the matter to be heard not later
	than the 10th day after the date of filing of the motion; and
	(B)  may dismiss the charge on a finding that the
	defendant was not tried before the expiration of the maximum period
	of restoration[, the court on the motion of the attorney
	representing the state shall dismiss the charge].
	SECTION 5.  Subsection (a), Article 46B.022, Code of
	Criminal Procedure, is amended to read as follows:
	(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; and
	(ii)  at least [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].
	SECTION 6.  Article 46B.024, Code of Criminal Procedure, is
	amended to read as follows:
	Art. 46B.024.  FACTORS CONSIDERED IN EXAMINATION. 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)  as supported by current indications and the
	defendant's personal history, whether the defendant:
	(A)  has a [diagnosable] mental illness; or
	(B)  is a person with mental retardation;
	(3)  whether the identified condition has lasted or is
	expected to last continuously for at least one year;
	(4)  the degree of impairment resulting from [impact
	of] the mental illness or mental retardation, if existent, and the
	specific impact on the defendant's capacity to engage with counsel
	in a reasonable and rational manner; and
	(5) [(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.
	SECTION 7.  Article 46B.025, Code of Criminal Procedure, is
	amended by amending Subsections (a) and (b) and adding Subsection
	(a-1) to read as follows:
	(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 specific [general] terms, describe procedures,
	techniques, and tests used in the examination, [and] the purpose of
	each procedure, technique, or test, and the conclusions reached;
	and
	(4)  state the expert's clinical observations,
	findings, and opinions on each specific issue referred to the
	expert by the court, state the specific criteria supporting the
	expert's diagnosis, and state specifically any issues on which the
	expert could not provide an opinion.
	(a-1)  The expert's opinion on the defendant's competency or
	incompetency may not be based solely on the defendant's refusal to
	communicate during the examination.
	(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 symptoms, exact nature, severity, and expected
	duration of the deficits resulting from the defendant's mental
	illness or mental retardation, if any, and the [that] impact of the
	identified condition on the factors listed in Article 46B.024[,
	contributing to the defendant's incompetency]; [and]
	(2)  an estimate of the period needed to restore the
	defendant's competency, including whether the defendant is likely
	to be restored to competency in the foreseeable future; and
	(3)  prospective treatment options, if any,
	appropriate for the defendant.
	SECTION 8.  Article 46B.071, Code of Criminal Procedure, is
	amended to read as follows:
	Art. 46B.071.  OPTIONS ON DETERMINATION OF INCOMPETENCY.
	(a)  Except as provided by Subsection (b), on [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.
	(b)  On a determination that a defendant is incompetent to
	stand trial and is unlikely to be restored to competency in the
	foreseeable future, the court shall:
	(1)  proceed under Subchapter E or F; or
	(2)  release the defendant on bail as permitted under
	Chapter 17.
	SECTION 9.  Article 46B.072, Code of Criminal Procedure, is
	amended by amending Subsections (a), (b), and (c) and adding
	Subsection (a-1) to read as follows:
	(a)  This article applies only to a defendant who is subject
	to an initial restoration period based on Article 46B.071.
	(a-1)  Subject to conditions reasonably related to assuring
	public safety and the effectiveness of the defendant's treatment,
	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 with the specific objective of attaining
	competency to stand trial and if an appropriate outpatient
	treatment program is available for the defendant, the court:
	(1)  may release on bail a defendant found incompetent
	to stand trial with respect to a felony or may continue the
	defendant's release on bail; and
	(2)  shall release on bail a defendant found
	incompetent to stand trial with respect to a misdemeanor or shall
	continue the defendant's release on bail.
	(b)  The court shall order a defendant released on bail under
	Subsection (a-1) [(a)] to participate in an outpatient treatment
	program for a period not to exceed 120 days.
	(c)  Notwithstanding Subsection (a-1) [(a)], the court may
	order a defendant to participate in an outpatient treatment program
	under this article only if:
	(1)  the court receives and approves a comprehensive
	plan that:
	(A)  provides for the treatment of the defendant
	for purposes of competency restoration; and
	(B)  identifies the person who will be responsible
	for providing that treatment to the defendant; and
	(2)  the court finds that the treatment proposed by the
	plan will be available to and will be provided to the defendant.
	SECTION 10.  Subsections (a) and (b), Article 46B.073, Code
	of Criminal Procedure, are amended to read as follows:
	(a)  This article applies only to a defendant not released on
	bail who is subject to an initial restoration period based on
	Article 46B.071.
	(b)  For further examination and treatment toward the
	specific objective of the defendant attaining competency to stand
	trial, the [The] court shall commit a defendant described by
	Subsection (a) to a mental health facility or residential care
	facility for the applicable [a] period as follows:
	(1)  a period of not more than 60 days, if the defendant
	is charged with an offense punishable as a misdemeanor; or
	(2)  a period of not more than 120 days, if the
	defendant is charged with an offense punishable as a felony [not to
	exceed 120 days for further examination and treatment toward the
	specific objective of attaining competency to stand trial].
	SECTION 11.  Subchapter D, Chapter 46B, Code of Criminal
	Procedure, is amended by adding Article 46B.0755 to read as
	follows:
	Art. 46B.0755.  PROCEDURES ON CREDIBLE EVIDENCE OF IMMEDIATE
	RESTORATION. (a)  Notwithstanding any other provision of this
	subchapter, if the court receives credible evidence indicating that
	the defendant has been restored to competency at any time after the
	defendant's incompetency trial under Subchapter C but before the
	defendant is transported under Article 46B.075 to a mental health
	facility, residential care facility, or outpatient treatment
	program, as applicable, the court may appoint disinterested experts
	to reexamine the defendant in accordance with Subchapter B. The
	court is not required to appoint the same expert or experts who
	performed the initial examination of the defendant under that
	subchapter.
	(b)  If after a reexamination of the defendant the applicable
	expert's report states an opinion that the defendant remains
	incompetent, the court's order under Article 46B.072 or 46B.073
	remains in effect, and the defendant shall be transported to the
	facility or outpatient treatment program as required by Article
	46B.075. If after a reexamination of the defendant the applicable
	expert's report states an opinion that the defendant has been
	restored to competency, the court shall withdraw its order under
	Article 46B.072 or 46B.073 and proceed under Subsection (c) or (d).
	(c)  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.
	(d)  The court shall hold a hearing to determine whether the
	defendant has been restored to competency if any party fails to
	agree or if the court fails to concur that the defendant is
	competent to stand trial. If a court holds a hearing under this
	subsection, on the request of the counsel for either party or the
	motion of the court, a jury shall make the competency
	determination. For purposes of the hearing, incompetency is
	presumed, and the defendant's competency must be proved by a
	preponderance of the evidence. If after the hearing the defendant
	is again found to be incompetent to stand trial, the court shall
	issue a new order under Article 46B.072 or 46B.073, as appropriate
	based on the defendant's current condition.
	SECTION 12.  Subsection (a), Article 46B.077, Code of
	Criminal Procedure, is amended to read as follows:
	(a)  The facility to which the defendant is committed or the
	outpatient treatment program to which the defendant is released on
	bail shall:
	(1)  develop an individual program of treatment;
	(2)  assess and evaluate whether the defendant is
	likely to be restored to [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.
	SECTION 13.  Article 46B.079, Code of Criminal Procedure, is
	amended to read as follows:
	Art. 46B.079.  NOTICE AND REPORT TO COURT. (a)  The head of
	the facility or the provider of the outpatient treatment program,
	as appropriate, not later than the 15th day before the date on which
	the initial [a] restoration period is to expire according to the
	terms of the order or under Article 46B.0095 or other applicable
	provisions of this chapter, shall notify the applicable court that
	the [restoration] period is about to expire.
	(b)  The head of the facility or outpatient treatment program
	provider shall promptly notify the court when the head of the
	facility or outpatient treatment program provider believes that:
	(1)  the defendant has attained competency to stand
	trial; or
	(2)  the defendant is not likely to [will not] attain
	competency in the foreseeable future.
	(c)  When the head of the facility or outpatient treatment
	program provider gives notice to the court under Subsection (a) or
	(b), the head of the facility or outpatient treatment program
	provider also shall file a final report with the court stating the
	reason for the proposed discharge under this chapter and including
	a list of the types and dosages of medications prescribed for [with
	which] the defendant [was treated for mental illness] while the
	defendant was in the facility or participating in the outpatient
	treatment program.  To enable any objection to the findings of the
	report to be made in a timely manner under Article 46B.084(a), the
	court shall provide copies of the report to the attorney
	representing the defendant and the attorney representing the state.
	(d)  If the head of the facility or outpatient treatment
	program provider notifies the court that the initial restoration
	period is about to expire, the notice may contain a request for an
	extension of the period for an additional period of 60 days and an
	explanation for the basis of the request.  An explanation provided
	under this subsection must include a description of any evidence
	indicating a reduction in the severity of the defendant's symptoms
	or impairment.
	SECTION 14.  Subsections (b) and (c), Article 46B.080, Code
	of Criminal Procedure, are amended to read as follows:
	(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 or the treatment program provider]:
	(1)  the defendant has not attained competency; and
	(2)  an extension of the initial restoration period
	will likely enable the facility or program to restore the defendant
	to competency within the period of the extension.
	(c)  The court may grant only one 60-day extension under this
	article in connection with the specific offense with which the
	defendant is charged [for a period of restoration ordered under
	this subchapter].
	SECTION 15.  Subsection (a), Article 46B.084, Code of
	Criminal Procedure, is amended to read as follows:
	(a)  On the return of a defendant to the 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.079(c) and on
	other medical information or personal history information relating
	to the defendant.  A[, unless any] party may object [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 court received
	notification under Article 46B.079.  The court shall make the
	determination not later than the 20th day after the date on which
	the court received notification under Article 46B.079, regardless
	of whether a party objects to the report as described by this
	subsection and the issue is set for hearing under Subsection (b).
	SECTION 16.  Subsection (a), Article 46B.086, Code of
	Criminal Procedure, is amended to read as follows:
	(a)  This article applies only to a defendant:
	(1)  who is determined under this chapter to be
	incompetent to stand trial;
	(2)  who either:
	(A)  remains confined in a correctional facility,
	as defined by Section 1.07, Penal Code, for a period exceeding 72
	hours while awaiting transfer to an inpatient mental health
	facility, a residential care facility, or an outpatient treatment
	program;
	(B)  is committed to an inpatient mental health
	facility or a residential care facility for the purpose of
	competency restoration;
	(C)  is confined in a correctional facility while
	awaiting further criminal proceedings following competency
	restoration treatment; or
	(D)  is subject to Article 46B.072, if the court
	has made the determinations required by Subsection (a-1) [(a)] of
	that article;
	(3)  for whom a correctional facility that employs or
	contracts with a licensed psychiatrist, an inpatient mental health
	facility, a residential care facility, or an outpatient treatment
	program provider has prepared a continuity of care plan that
	requires the defendant to take psychoactive medications; and
	(4)  who, after a hearing held under Section 574.106,
	Health and Safety Code, if applicable, has been found to not meet
	the criteria prescribed by Sections 574.106(a) and (a-1), Health
	and Safety Code, for court-ordered administration of psychoactive
	medications.
	SECTION 17.  Article 46B.101, Code of Criminal Procedure, is
	amended to read as follows:
	Art. 46B.101.  APPLICABILITY. This subchapter applies to a
	defendant against whom a court is required to proceed according to
	[under] Article 46B.084(e) or according to the court's appropriate
	determination under Article 46B.071.
	SECTION 18.  Subsection (a), Article 46B.151, Code of
	Criminal Procedure, is amended to read as follows:
	(a)  If a court is required by Article 46B.084(f) or by its
	appropriate determination under Article 46B.071 to proceed under
	this subchapter, or if the court is permitted by Article 46B.004(e)
	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.
	SECTION 19.  The Department of State Health Services, in
	coordination with the Health and Human Services Commission, shall
	study the feasibility of providing home and community-based
	services, instead of institutional care, to persons with severe and
	persistent mental illness who have a history of more than one
	inpatient commitment under Chapter 46B, Code of Criminal Procedure.
	Not later than December 1, 2012, the department shall issue a report
	to the legislature regarding the results of the feasibility study.
	SECTION 20.  The change in law made by this Act applies only
	to a defendant with respect to whom any proceeding under Chapter
	46B, Code of Criminal Procedure, is conducted on or after the
	effective date of this Act.
	SECTION 21.  This Act takes effect September 1, 2011.
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