2009 Texas Code
CODE OF CRIMINAL PROCEDURE
TITLE 1. CODE OF CRIMINAL PROCEDURE
CHAPTER 46B. INCOMPETENCY TO STAND TRIAL
CODE OF CRIMINAL PROCEDURE
TITLE 1. 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.
Amended by:
Acts 2005, 79th Leg., Ch.
324, Sec. 1, eff. September 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.
Amended by:
Acts 2005, 79th Leg., Ch.
324, Sec. 2, eff. September 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. September 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. September 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. September 1, 2005.
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 the time the person is confined in a mental
health facility, residential care facility, or jail pending trial
under Subchapter C.
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. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 2, eff. September 1, 2007.
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 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.
Added by Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 2, eff. September 1, 2007.
Art. 46B.010. MANDATORY DISMISSAL OF MISDEMEANOR CHARGES. If a
court orders 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,
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.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 2, eff. September 1, 2007.
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. September 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. September 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.
Amended 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.
Amended 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. September 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. September 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. September 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. (a) 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) to participate in an outpatient treatment program
for a period not to exceed 120 days.
(c) Notwithstanding Subsection (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.
(d) An order issued under this article may require the defendant
to participate in:
(1) as appropriate, an outpatient treatment program administered
by a community center or an outpatient treatment program
administered by any other entity that provides outpatient
competency restoration services; and
(2) an appropriate prescribed regimen of medical, psychiatric,
or psychological care or treatment, including care or treatment
involving the administration of psychoactive medication,
including those required under Article 46B.086.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 3, eff. September 1, 2007.
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), other than an offense listed in Article
17.032(a)(6), 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 described by
Subsection (c) 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.
Amended by:
Acts 2005, 79th Leg., Ch.
324, Sec. 9, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 4, eff. September 1, 2007.
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. September 1, 2005.
Art. 46B.075. TRANSFER OF DEFENDANT TO FACILITY OR OUTPATIENT
TREATMENT PROGRAM. An order issued under Article 46B.072 or
46B.073 must place the defendant in the custody of the sheriff
for transportation to the facility or outpatient treatment
program, as applicable, in which the defendant is to receive
treatment for purposes of competency restoration.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 5, eff. September 1, 2007.
Art. 46B.076. COURT'S ORDER. (a) If the defendant is found
incompetent to stand trial, not later than the date of the order
of commitment or of release on bail, as applicable, the court
shall send a copy of the order to the facility of the department
to which the defendant is committed or the outpatient treatment
program to which the defendant is released. The court shall also
provide to the facility or outpatient treatment program 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 or
outpatient treatment program.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Amended by:
Acts 2005, 79th Leg., Ch.
324, Sec. 11, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 5, eff. September 1, 2007.
Art. 46B.077. INDIVIDUAL TREATMENT PROGRAM. (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 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.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 6, eff. September 1, 2007.
Art. 46B.078. CHARGES SUBSEQUENTLY DISMISSED. If the charges
pending against a defendant are dismissed, the court that issued
the order under Article 46B.072 or 46B.073 shall send a copy of
the order of dismissal to the sheriff of the county in which the
court is located and to the head of the facility or the provider
of the outpatient treatment program, as appropriate. On receipt
of the copy of the order, the facility or outpatient treatment
program 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.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 7, eff. September 1, 2007.
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
a restoration period is to expire, 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 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 with
which the defendant was treated for mental illness while 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.
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. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 7, eff. September 1, 2007.
Art. 46B.080. EXTENSION OF ORDER. (a) On a request of the head
of a facility or a treatment program provider that is made under
Article 46B.079(d) and notwithstanding any other provision of
this subchapter, the court may enter an order extending the
initial restoration period for an additional 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 or the treatment program provider:
(1) the defendant has not attained competency; and
(2) an extension of the restoration period will likely enable
the facility or program to restore the defendant to competency.
(c) The court may grant only one extension under this article
for a period of restoration ordered under this subchapter.
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. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 7, eff. September 1, 2007.
Art. 46B.081. RETURN TO COURT. Subject to Article 46B.082(b), a
defendant committed or released on bail under this subchapter
shall be returned to the applicable court as soon as practicable
after notice to the court is provided under Article 46B.079, but
not later than the date of expiration of the period for
restoration specified by the court under Article 46B.072 or
46B.073.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Amended by:
Acts 2005, 79th Leg., Ch.
324, Sec. 13, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 7, eff. September 1, 2007.
Art. 46B.082. TRANSPORTATION OF DEFENDANT. (a) On notification
from the court under Article 46B.078, the sheriff of the county
in which the court is located or the sheriff's designee shall
transport the defendant to the court.
(b) If before the 15th day after the date on which the court
received notification under Article 46B.079 a defendant committed
to a facility of the department or ordered to participate in an
outpatient treatment program has not been transported to the
court that issued the order under Article 46B.072 or 46B.073, as
applicable, the head of the facility to which the defendant is
committed or the provider of the outpatient treatment program in
which the defendant is participating shall cause the defendant to
be promptly transported to the court and placed in the custody of
the sheriff of the county in which the court is located. The
county in which the 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.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 7, eff. September 1, 2007.
Art. 46B.083. SUPPORTING COMMITMENT INFORMATION PROVIDED BY
FACILITY HEAD OR OUTPATIENT TREATMENT PROGRAM PROVIDER. (a) If
the head of the facility or outpatient treatment program provider
believes that the defendant is a person with mental illness and
meets the criteria for court-ordered mental health services under
Subtitle C, Title 7, Health and Safety Code, the head of the
facility or the outpatient treatment program provider shall have
submitted to the court a certificate of medical examination for
mental illness.
(b) If the head of the facility or the outpatient treatment
program provider believes that the defendant is a person with
mental retardation, the head of the facility or the outpatient
treatment program provider 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. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 7, eff. September 1, 2007.
Art. 46B.084. PROCEEDINGS ON RETURN OF DEFENDANT TO COURT. (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), 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 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).
(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
court with respect to any hearing that is conducted under this
article in the manner described by this subsection.
(c) Repealed by Acts 2007, 80th Leg., R.S., Ch. 1307, Sec. 21,
eff. September 1, 2007.
(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.
Amended by:
Acts 2005, 79th Leg., Ch.
324, Sec. 15, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 8, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 21, eff. September 1, 2007.
Art. 46B.085. SUBSEQUENT RESTORATION PERIODS AND EXTENSIONS OF
THOSE PERIODS PROHIBITED. (a) The court may order only one
initial period of restoration and one extension under this
subchapter in connection with the same offense.
(b) After an initial restoration period 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. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 9, eff. September 1, 2007.
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) 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) 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.
(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 or outpatient treatment program provider, as applicable,
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, except that, for a defendant in an
outpatient treatment program, the motion may be filed at any
time.
(c) 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 the correctional
facility or the program provider, as applicable, to have the
medication administered to the defendant, by reasonable force if
necessary.
(d) 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 or with the applicable correctional
facility or outpatient treatment program 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.
(e) 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.
(f) A statement made by a defendant to a physician during an
examination under Subsection (d) 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.
(g) For a defendant described by Subsection (a)(2)(A), an order
issued under this article:
(1) authorizes the initiation of any appropriate mental health
treatment for the defendant awaiting transfer; and
(2) does not constitute authorization to retain the defendant in
a correctional facility for competency restoration treatment.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Amended by:
Acts 2005, 79th Leg., Ch.
717, Sec. 8, eff. June 17, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 9, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch.
624, Sec. 4, eff. June 19, 2009.
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 court-ordered to mental health
services under Subtitle C, Title 7, Health and Safety Code.
(b) Proceedings for commitment of the defendant to court-ordered
mental health services 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.
(d) In proceedings conducted under this subchapter for a
defendant described by Subsection (a):
(1) an application for court-ordered temporary or extended
mental health services may not be required;
(2) the provisions of Subtitle C, 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.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 10, eff. September 1, 2007.
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 for a
defendant described by Subsection (a):
(1) an application to have the defendant declared a person with
mental retardation may not be required;
(2) the provisions of Subtitle 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 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. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 11, eff. September 1, 2007.
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), other than an offense listed in Article 17.032(a)(6);
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. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 12, eff. September 1, 2007.
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. September 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:
(1) a facility designated by the department; or
(2) an outpatient treatment program.
(b) A facility or outpatient treatment program may not refuse to
accept a placement ordered under this article on the grounds that
criminal charges against the defendant are pending.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 13, eff. September 1, 2007.
Art. 46B.107. RELEASE OF DEFENDANT AFTER CIVIL COMMITMENT. (a)
The release from the department, an outpatient treatment program,
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 or outpatient treatment provider, as applicable, to
which the defendant has been committed that a criminal charge
remains pending against the defendant.
(b) If the head of the facility or outpatient treatment provider
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 or outpatient treatment
provider 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 or outpatient treatment provider intends to release the
defendant.
(c) The head of the facility or outpatient treatment provider
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 or
the outpatient treatment provider 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. 24, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 14, eff. September 1, 2007.
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, outpatient treatment provider, 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.
Amended by:
Acts 2005, 79th Leg., Ch.
324, Sec. 25, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 15, eff. September 1, 2007.
Art. 46B.109. REQUEST BY HEAD OF FACILITY OR OUTPATIENT
TREATMENT PROVIDER. (a) The head of a facility or outpatient
treatment provider 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 or outpatient treatment provider
shall provide with the request a written statement that in their
opinion the defendant is competent to stand trial.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 16, eff. September 1, 2007.
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. September 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 or outpatient treatment provider 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 or outpatient treatment provider
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 or outpatient treatment provider
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.
Amended by:
Acts 2005, 79th Leg., Ch.
324, Sec. 27, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 17, eff. September 1, 2007.
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. September 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.
Amended by:
Acts 2005, 79th Leg., Ch.
324, Sec. 29, eff. September 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. If
a defendant under order of commitment to a facility or outpatient
treatment program 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 or
outpatient treatment program.
Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.
Amended by:
Acts 2005, 79th Leg., Ch.
324, Sec. 30, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 18, eff. September 1, 2007.
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. September 1, 2005.
Acts 2005, 79th Leg., Ch.
324, Sec. 33, eff. September 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, outpatient treatment
program, or residential care facility.
(b) On the request of the defendant or the attorney representing
the defendant, a mental health facility, an outpatient treatment
program, 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. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1307, Sec. 19, eff. September 1, 2007.
Disclaimer: These codes may not be the most recent version. Texas may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
