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2005 Texas Code of Criminal Procedure CHAPTER 46B. INCOMPETENCY TO STAND TRIAL
CODE OF CRIMINAL PROCEDURE CHAPTER 46B. INCOMPETENCY TO STAND TRIAL SUBCHAPTER A. GENERAL PROVISIONS Art. 46B.001. DEFINITIONS. In this chapter: (1) "Department" means the Department of State Health Services. (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. (9) "Electronic broadcast system" means a two-way electronic communication of image and sound between the defendant and the court and includes secure Internet videoconferencing. Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Subds. (1), (9) amended by Acts 2005, 79th Leg., ch. 324, Sec. 1, eff. Sept. 1, 2005. Art. 46B.002. APPLICABILITY. 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. (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. (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 Subsection (e) and Article 46B.005(d), shall stay all other proceedings in the case. (e) At any time during the proceedings under this chapter after the issue of the defendant's incompetency to stand trial is first raised, the court on the motion of the attorney representing the state may dismiss all charges pending against the defendant, regardless of whether there is any evidence to support a finding of the defendant's incompetency under Subsection (d) or whether the court has made a finding of incompetency under this chapter. If the court dismisses the charges against the defendant, the court may not continue the proceedings under this chapter, except that, if there is evidence to support a finding of the defendant's incompetency under Subsection (d), the court may proceed under Subchapter F. If the court does not elect to proceed under Subchapter F, the court shall discharge the defendant. Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Subsec. (d) amended by Acts 2005, 79th Leg., ch. 324, Sec. 2, eff. Sept. 1, 2005; Subsec. (e) added by Acts 2005, 79th Leg., ch. 324, Sec. 2, eff. Sept. 1, 2005. Art. 46B.005. DETERMINING INCOMPETENCY TO STAND TRIAL. (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 in a criminal case. (b) Except as provided by Subsection (c), the court shall hold a trial under Subchapter C before determining whether the defendant is incompetent to stand trial on the merits. (c) A trial under this chapter is not required if: (1) neither party's counsel requests a trial on the issue of incompetency; (2) neither party's counsel opposes a finding of incompetency; and (3) the court does not, on its own motion, determine that a trial is necessary to determine incompetency. (d) If the issue of the defendant's incompetency to stand trial is raised after the trial on the merits begins, the court may determine the issue at any time before the sentence is pronounced. 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. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 3, eff. Sept. 1, 2005. Art. 46B.006. APPOINTMENT OF AND REPRESENTATION BY COUNSEL. (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. A statement made by a defendant during an examination or trial 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 trial 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 article. Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 3, eff. Sept. 1, 2005. Art. 46B.008. RULES OF EVIDENCE. Notwithstanding Rule 101, Texas Rules of Evidence, the Texas Rules of Evidence apply to a trial under Subchapter C or other proceeding under this chapter whether the proceeding is before a jury or before the court. Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 3, eff. Sept. 1, 2005. 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 the time the person is confined in a mental health facility, residential care facility, or jail pending trial under Subchapter C. (b) A defendant may not be committed to a mental hospital or other in-patient or residential facility under this chapter for a cumulative period that exceeds the maximum term provided by law for the offense for which the defendant was to be tried. On expiration of that maximum term, the defendant may be confined for an additional period in a mental hospital or other in-patient or residential facility only pursuant to civil commitment proceedings. Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 3, eff. Sept. 1, 2005. Art. 46B.010. MANDATORY DISMISSAL OF MISDEMEANOR CHARGES. 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. Neither the state nor the defendant is entitled to make an interlocutory appeal relating to a determination or ruling under Article 46B.005. Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 3, eff. Sept. 1, 2005. Art. 46B.012. COMPLIANCE WITH CHAPTER. 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. Art. 46B.013. USE OF ELECTRONIC BROADCAST SYSTEM IN CERTAIN PROCEEDINGS UNDER THIS CHAPTER. (a) A hearing may be conducted using an electronic broadcast system as permitted by this chapter and in accordance with the other provisions of this code if: (1) written consent to the use of an electronic broadcast system is filed with the court by: (A) the defendant or the attorney representing the defendant; and (B) the attorney representing the state; (2) the electronic broadcast system provides for a simultaneous, compressed full motion video, and interactive communication of image and sound between the judge, the attorney representing the state, the attorney representing the defendant, and the defendant; and (3) on request of the defendant or the attorney representing the defendant, the defendant and the attorney representing the defendant are able to communicate privately without being recorded or heard by the judge or the attorney representing the state. (b) On the motion of the defendant, the attorney representing the defendant, or the attorney representing the state or on the court's own motion, the court may terminate an appearance made through an electronic broadcast system at any time during the appearance and require an appearance by the defendant in open court. (c) A recording of the communication shall be made and preserved until any appellate proceedings have been concluded. The defendant may obtain a copy of the recording on payment of a reasonable amount to cover the costs of reproduction or, if the defendant is indigent, the court shall provide a copy to the defendant without charging a cost for the copy. Added by Acts 2005, 79th Leg., ch. 324, Sec. 4, eff. Sept. 1, 2005.SUBCHAPTER B. EXAMINATION Art. 46B.021. APPOINTMENT OF EXPERTS. (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. (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. 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. 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. (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. (d) The court shall direct an expert to provide the expert's report to the court and the appropriate parties in the form approved by the Texas Correctional Office on Offenders with Medical or Mental Impairments under Section 614.0032(b), Health and Safety Code. Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Subsec. (d) added by Acts 2005, 79th Leg., ch. 1269, Sec. 1, eff. June 18, 2005. Art. 46B.026. REPORT DEADLINE. (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). (c) As soon as practicable after the court receives a report under this article, the court shall forward the report to the Texas Correctional Office on Offenders with Medical or Mental Impairments to enable that office to discharge its duties under Section 614.0032(b), Health and Safety Code. Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Subsec. (c) added by Acts 2005, 79th Leg., ch. 1269, Sec. 2, eff. June 18, 2005. Art. 46B.027. COMPENSATION OF EXPERTS; REIMBURSEMENT OF FACILITIES. (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 TRIAL Art. 46B.051. TRIAL BEFORE JUDGE OR JURY. (a) If a court holds a trial 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. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 6, eff. Sept. 1, 2005. Art. 46B.052. JURY VERDICT. (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. If 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. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 7, eff. Sept. 1, 2005. Art. 46B.054. UNCONTESTED INCOMPETENCY. If the court finds that evidence exists to support a finding of incompetency to stand trial and the court and the counsel for 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. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 7, eff. Sept. 1, 2005. Art. 46B.055. PROCEDURE AFTER FINDING OF INCOMPETENCY. 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 AFTER DETERMINATION OF INCOMPETENCY Art. 46B.071. OPTIONS ON DETERMINATION OF INCOMPETENCY. 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. 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. (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 alleges 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 allege 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. Subsecs. (c), (d) amended by Acts 2005, 79th Leg., ch. 324, Sec. 9, eff. Sept. 1, 2005. Art. 46B.074. COMPETENT TESTIMONY REQUIRED. (a) A defendant may be committed to a mental health facility or residential care facility under this subchapter only on competent medical or psychiatric testimony provided by an expert qualified under Article 46B.022. (b) The court may allow an expert to substitute the expert's report under Article 46B.025 for any testimony by the expert that may be required under this article. Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 10, eff. Sept. 1, 2005. Art. 46B.075. TRANSFER OF DEFENDANT TO FACILITY. 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. (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 trial: (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. Subsec. (a) amended by Acts 2005, 79th Leg., ch. 324, Sec. 11, eff. Sept. 1, 2005. Art. 46B.077. INDIVIDUAL TREATMENT PROGRAM. (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. 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. (a) A defendant committed under this subchapter shall be returned to the committing court as soon as practicable after the date on which the defendant's term of commitment expires. (b) A defendant committed under this subchapter whose term of commitment has not yet expired shall be returned to the committing court as soon as practicable after the 15th day following the date on which the parties receive service on any report filed under Article 46B.080(b) regarding the defendant's ability to attain competency, except that, if a party objects to the findings of the report and the issue is set for a hearing under Article 46B.084, the defendant may not be returned to the committing court earlier than 72 hours before the date the hearing is scheduled. Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 12, eff. Sept. 1, 2005. Art. 46B.080. NOTICE TO COMMITTING COURT. (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) When the head of the facility gives notice to the court under Subsection (a) or (b), the head of the facility 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 with which the defendant was treated for mental illness while in the facility. 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 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. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 12, eff. Sept. 1, 2005. Art. 46B.081. EXTENSION OF COMMITMENT ORDER. (a) On the request of the head of a facility made under Article 46B.080(d), 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. Subsec. (a) amended by Acts 2005, 79th Leg., ch. 324, Sec. 13, eff. Sept. 1, 2005. Art. 46B.082. TRANSPORTATION OF DEFENDANT. (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. SUPPORTING COMMITMENT INFORMATION PROVIDED BY FACILITY HEAD. (a) 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. (b) 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. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 14, eff. Sept. 1, 2005. Art. 46B.084. PROCEEDINGS ON RETURN OF DEFENDANT TO COURT. (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(c), 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. (b-1) If the hearing is before the court, the hearing may be conducted by means of an electronic broadcast system as provided by Article 46B.013. Notwithstanding any other provision of this chapter, the defendant is not required to be returned to the committing court with respect to any hearing that is conducted under this article in the manner described by this subsection. (c) The hearing shall be held within 30 days following the date of objection unless continued for good cause for a period not to exceed 30 days. (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. Subsecs. (a) and (c) amended by Acts 2005, 79th Leg., ch. 324, Sec. 15, eff. Sept. 1, 2005; Subsec. (b-1) added by Acts 2005, 79th Leg., ch. 324, Sec. 15, eff. Sept. 1, 2005. Art. 46B.085. SUBSEQUENT COMMITMENTS AND EXTENSIONS PROHIBITED. (a) The court may order only one commitment and one extension under this subchapter in connection with the same offense. (b) After a commitment and an extension are ordered as described by Subsection (a), any subsequent court orders for treatment must be issued under Subchapter E or F. Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 16, eff. Sept. 1, 2005. Art. 46B.086. COURT-ORDERED MEDICATIONS. (a) This article applies only to a defendant: (1) who is determined under this chapter to be incompetent to stand trial; (2) for whom a continuity of care plan has been prepared by a facility that requires the defendant to take psychoactive medications; and (3) who, after a hearing held under Section 574.106, Health and Safety Code, has been found not to meet the criteria prescribed by Sections 574.106(a) and (a-1), Health and Safety Code, for court-ordered administration of 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 motion to compel medication must be filed not later than the 15th day after the date a judge issues an order stating that the defendant does not meet the criteria for court-ordered administration of psychoactive medications under Section 574.106, Health and Safety Code. The court, after notice and after a hearing held not later than the fifth day after the defendant is returned to the committing court, 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 obtaining and maintaining competency to stand trial; (3) no other less invasive means of obtaining and 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. Subsecs. (a), (b) and (d) amended by Acts 2005, 79th Leg., ch. 717, Sec. 8, eff. June 17, 2005.SUBCHAPTER E. CIVIL COMMITMENT: CHARGES PENDING Art. 46B.101. APPLICABILITY. 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. CIVIL COMMITMENT HEARING: MENTAL ILLNESS. (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. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 18, eff. Sept. 1, 2005. Art. 46B.103. CIVIL COMMITMENT HEARING: MENTAL RETARDATION. (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. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 19, eff. Sept. 1, 2005. Art. 46B.104. CIVIL COMMITMENT PLACEMENT: FINDING OF VIOLENCE. 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 alleges 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. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 20, eff. Sept. 1, 2005. Art. 46B.105. TRANSFER FOLLOWING CIVIL COMMITMENT PLACEMENT. (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. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 21, eff. Sept. 1, 2005. Art. 46B.106. CIVIL COMMITMENT PLACEMENT: NO FINDING OF VIOLENCE. (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. heading amended by Acts 2005, 79th Leg., ch. 324, Sec. 22, eff. Sept. 1, 2005. Art. 46B.107. RELEASE OF DEFENDANT AFTER CIVIL COMMITMENT. (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. The court may conduct the hearing: (1) at the facility; or (2) by means of an electronic broadcast system as provided by Article 46B.013. (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. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 23, eff. Sept. 1, 2005; Subsec. (d) amended by Acts 2005, 79th Leg., ch. 324, Sec. 24, eff. Sept. 1, 2005. Art. 46B.108. REDETERMINATION OF COMPETENCY. (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, the attorney representing 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. Subsec. (b) amended by Acts 2005, 79th Leg., ch. 324, Sec. 25, eff. Sept. 1, 2005. Art. 46B.109. REQUEST BY HEAD OF FACILITY. (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, ATTORNEY REPRESENTING DEFENDANT, OR ATTORNEY REPRESENTING STATE. (a) The defendant, the attorney representing 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. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 26, eff. Sept. 1, 2005. Art. 46B.111. APPOINTMENT OF EXAMINERS. 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. 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. (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 the counsel for either party or the motion of the court, a jury shall make the competency determination. If the competency determination will be made by the court rather than a jury, the court may conduct the hearing: (1) at the facility; or (2) by means of an electronic broadcast system as provided by Article 46B.013. (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. Subsec. (c) amended by Acts 2005, 79th Leg., ch. 324, Sec. 27, eff. Sept. 1, 2005. Art. 46B.114. TRANSPORTATION OF DEFENDANT TO COURT. If the hearing is not conducted at the facility to which the defendant has been committed under this chapter or conducted by means of an electronic broadcast system as described by this subchapter, an order setting a hearing to determine whether the defendant has been restored to competency shall direct that, as soon as practicable but not earlier than 72 hours before the date the hearing is scheduled, 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. The sheriff or the sheriff's designee may not take custody of the defendant under this article until 72 hours before the date the hearing is scheduled. Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 28, eff. Sept. 1, 2005. Art. 46B.115. SUBSEQUENT REDETERMINATIONS OF COMPETENCY. (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. (c) If the competency determination will be made by the court, the court may conduct the hearing at the facility to which the defendant has been committed under this chapter or may conduct the hearing by means of an electronic broadcast system as provided by Article 46B.013. Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Subsec. (c) added by Acts 2005, 79th Leg., ch. 324, Sec. 29, eff. Sept. 1, 2005. Art. 46B.116. DISPOSITION ON DETERMINATION OF COMPETENCY. 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. (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, if applicable, 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. Subsec. (a) amended by Acts 2005, 79th Leg., ch. 324, Sec. 30, eff. Sept. 1, 2005.SUBCHAPTER F. CIVIL COMMITMENT: CHARGES DISMISSED Art. 46B.151. COURT DETERMINATION RELATED TO CIVIL COMMITMENT. (a) If a court is required by Article 46B.084(f) or 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. (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. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 32, eff. Sept. 1, 2005; Subsec. (a) amended by Acts 2005, 79th Leg., ch. 324, Sec. 33, eff. Sept. 1, 2005.SUBCHAPTER G. PROVISIONS APPLICABLE TO SUBCHAPTERS E AND F Art. 46B.171. TRANSCRIPTS AND OTHER RECORDS. (a) 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. (b) On the request of the defendant or the attorney representing the defendant, a mental health facility or a residential care facility shall provide to the defendant or the attorney copies of the facility's records regarding the defendant. Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Amended by Acts 2005, 79th Leg., ch. 324, Sec. 34, eff. Sept. 1, 2005.
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