MISCELLANEOUS PROCEEDINGS

CHAPTER FORTY-SIX—INSANITY AS DEFENSE

Art. 46.02. [932b] Incompetency to stand trial

Definition

Sec. 1. In this article, "residential care facility" has the meaning assigned by Section 591.003, Health and Safety Code.

Incompetency to Stand Trial

Sec. 1A. (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.

Raising the Issue of Incompetency to Stand Trial

Sec. 2. (a) The issue of the defendant's incompetency to stand trial shall be determined in advance of the trial on the merits if the court determines there is evidence to support a finding of incompetency to stand trial on its own motion or on written motion by the defendant or his counsel filed prior to the date set for trial on the merits asserting that the defendant is incompetent to stand trial.

(b) If during the trial evidence of the defendant's incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.

Examination of the Defendant

Sec. 3. (a) At any time the issue of the defendant's incompetency to stand trial is raised, the court may, on its own motion or motion by the defendant, his counsel, or the prosecuting attorney, appoint the local mental health or mental retardation authority or other disinterested experts experienced and qualified in mental health or mental retardation to examine the defendant with regard to his competency to stand trial and to testify at any trial or hearing on this issue.

(b) The court may order any defendant to submit to examination for the purposes described in this article. If the defendant is free on bail, the court in its discretion may order him to submit to examination. If the defendant fails or refuses to submit to examination, the court may order him to submit to examination in a mental health facility determined to be appropriate by the local mental health or mental retardation authority for a reasonable period not to exceed 21 days. The court may order a defendant to a facility operated by the Texas Department of Mental Health and Mental Retardation for examination only on request of the local mental health or mental retardation authority and with the consent of the head of the facility. If a defendant who has been ordered to a facility operated by Texas Department of Mental Health and Mental Retardation for examination remains in such facility for a period of time exceeding 21 days, the head of that facility shall cause the defendant to be immediately transported to the committing court and placed in the custody of the sheriff of the county in which the committing court is located. That county shall reimburse the Texas Department of Mental Health and Mental Retardation facility for the mileage and per diem expenses of the personnel required to transport the defendant calculated in accordance with the state travel regulations in effect at the time.

(c) The court shall advise any expert appointed pursuant to this section of the facts and circumstances of the offense with which the defendant is charged and the meaning of incompetency to stand trial.

(d) A written report of the examination shall be submitted to the court within 30 days of the order of examination, and the court shall furnish copies of the report to the defense counsel and the prosecuting attorney. The report shall include a description of the procedures used in the examination, the examiner's observations and findings pertaining to the defendant's competency to stand trial, and the recommended treatment. If the examiner concludes that the defendant is incompetent to stand trial, the report shall include the examiner's observations and findings about whether there is a substantial probability that the defendant will attain the competence to stand trial in the foreseeable future. The examiner shall also submit a separate report setting forth the examiner's observations and findings concerning:

(1) whether 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; or

(2) whether the defendant is a person with mental retardation and meets the criteria for commitment to a residential care facility under Subtitle D, Title 7, Health and Safety Code.

(e) If the examiner is a physician and concludes that the defendant is a person with mental illness, the examiner shall complete and submit to the court a Certificate of Medical Examination for Mental Illness. If the examiner is a physician or a licensed psychologist and determines that the defendant is a person with mental retardation and if the determination has been made in accordance with the standards established by Section 593.005, Health and Safety Code, the examiner shall submit to the court an affidavit setting forth the conclusions reached as a result of the examination.

(f) The local mental health or mental retardation authority or other appointed experts shall be paid by the county in which the indictment was returned or information was filed. A facility which accepts a defendant for examination under this section shall be reimbursed by the county in which the indictment was returned or information was filed for such expenses incurred as are determined by the department to be reasonably necessary and incidental to the proper examination of the defendant.

(g) No statement made by the defendant during the examination or hearing on his competency to stand trial may be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding.

(h) When a defendant wishes to be examined by a psychiatrist or other expert of his own choice, the court on timely request shall provide the examiner with reasonable opportunity to examine the defendant.

(i) The experts appointed under this section to examine the defendant with regard to his competency to stand trial also may be appointed by the court to examine the defendant with regard to the insanity defense pursuant to Section 3 of Article 46.03 of this code, but separate written reports concerning the defendant's competency to stand trial and the insanity defense shall be filed with the court.

Incompetency Hearing

Sec. 4. (a) If the court determines that there is evidence to support a finding of incompetency to stand trial, a jury shall be impaneled to determine the defendant's competency to stand trial. This determination shall be made by a jury that has not been selected to determine the guilt or innocence of the defendant. If the defendant is found incompetent to stand trial, a further hearing may be held to determine whether or not the defendant:

(1) 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; or

(2) is a person with mental retardation and meets the criteria for commitment to a residential care facility under Subtitle D, Title 7, Health and Safety Code.

(b) The defendant is entitled to counsel at the competency hearing. If the defendant is indigent and the court has not yet appointed counsel to represent the defendant, the court shall appoint counsel prior to the competency hearing.

(c) If the issue of incompetency to stand trial is raised other than by written motion in advance of trial pursuant to Subsection (a) of Section 2 of this article and the court determines that there is evidence to support a finding of incompetency to stand trial, the court shall set the issue for determination at any time prior to the sentencing of the defendant. If the competency hearing is delayed until after a verdict on the guilt or innocence of the defendant is returned, the competency hearing shall be held as soon thereafter as reasonably possible, but a competency hearing may be held only if the verdict in the trial on the merits is "guilty." If the defendant is found incompetent to stand trial after the beginning of the trial on the merits, the court shall declare a mistrial in the trial on the merits. A subsequent trial and conviction of the defendant for the same offense is not barred and jeopardy does not attach by reason of a mistrial under this section.

(d) Instructions submitting the issue of incompetency to stand trial shall be framed to require the jury to state in its verdict:

(1) whether the defendant is incompetent to stand trial; and

(2) if found incompetent to stand trial, whether there is no substantial probability that the defendant will attain the competency to stand trial within the foreseeable future.

(e) If the jury is unable to agree on a unanimous verdict after a reasonable opportunity to deliberate, the court shall declare a mistrial of the incompetency hearing, discharge the jury, and impanel another jury to determine the incompetency of the defendant to stand trial.

(f) If the defendant is found competent to stand trial, the court shall dismiss the jury that decided the issue and may continue the trial on the merits before the court or with the jury selected for that purpose.

(g) If the defendant is found incompetent to stand trial and it is determined that there is a substantial probability that he will attain the competency to stand trial within the foreseeable future, the court shall proceed under Section 5 of this article.

(h) If the defendant is found incompetent to stand trial and there is found no substantial probability that the defendant will become competent within the foreseeable future, and the court determines there is evidence that the defendant is a person with mental illness or mental retardation, and all charges pending against the defendant are not then dismissed, the court shall proceed under Section 6 of this article or shall release the defendant.

(i) If the defendant is found incompetent to stand trial and there is found no substantial probability that the defendant will become competent within the foreseeable future, and the court determines there is evidence that the defendant is a person with mental illness or mental retardation, and all charges pending against the defendant are then dismissed, the court shall proceed under Section 7 of this article or shall release the defendant.

Criminal Commitment

Sec. 5. (a) When a defendant has been determined incompetent to stand trial for a felony or misdemeanor because of mental illness or mental retardation, and absent a determination that there is no substantial probability that the defendant will attain competency to stand trial in the foreseeable future, the court shall determine whether the conduct committed by the defendant involved an act, attempt, or threat of serious bodily injury to another person. If the court determines that the defendant's conduct involved an act, attempt, or threat of serious bodily injury to another person, the court shall enter an order committing the defendant to the maximum security unit of any facility designated by the Texas Department of Mental Health and Mental Retardation, to an agency of the United States operating a mental hospital, or to a Veterans Administration hospital for a period not to exceed 18 months. If the court determines that the defendant's conduct did not involve an act, attempt, or threat of serious bodily injury to another person, the court shall enter an order committing the defendant to a mental health facility determined to be appropriate by the local mental health or mental retardation authority for a period not to exceed 18 months. On request of the local mental health or mental retardation authority, the court may enter an order committing the defendant to a facility operated by the Texas Department of Mental Health and Mental Retardation. An order issued under this subsection shall also place the defendant in the custody of the sheriff for transportation to the facility to be confined in the facility for further examination and treatment toward the specific objective of attaining competency to stand trial. The court shall order that a transcript of all medical testimony received by the jury be forthwith prepared by the court reporter and that the transcript, together with a statement of the facts and circumstances surrounding the alleged offense, shall accompany the patient to the facility.

(b) No person shall be committed to a mental health or residential care facility under this section except on competent medical or psychiatric testimony.

(c) The facility to which the defendant is committed shall develop an individual program of treatment and shall report on the defendant's progress towards achieving competency to the court at least every 90 days.

(d) Nothing in this section precludes the court from allowing the defendant to be released on bail if the court determines that the defendant can be adequately treated on an outpatient basis for the purpose of attaining competency to stand trial.

(e) If the charges pending against a defendant are dismissed, the committing court shall send a copy of the order of dismissal to the head of the facility in which the defendant is held and the defendant shall then be discharged.

(f) The head of a facility to which a person has been committed pursuant to Subsection (a) of this section shall promptly notify the committing court:

(1) when he is of the opinion that the defendant has attained competency to stand trial; or

(2) when he is of the opinion that there is no substantial probability that the defendant will attain the competency to stand trial in the foreseeable future; or

(3) when an 18-month commitment is due to expire, such notice to be given 14 days prior to such expiration.

(g) On notification to the committing court under Subsection (f) of this section, the sheriff of the county in which the committing court is located shall forthwith transport the defendant to the committing court; provided, however, that if the defendant remains in the maximum security unit of a facility of the Texas Department of Mental Health and Mental Retardation 14 days following receipt by the committing court of such notification, the head of that facility shall cause the defendant to be immediately transported to the committing court and placed in the custody of the sheriff of the county in which the committing court is located. That county shall reimburse the Texas Department of Mental Health and Mental Retardation facility for the mileage and per diem expenses of the personnel required to transport the defendant calculated in accordance with the state travel regulations in effect at the time.

(h) Upon the defendant's return to court, if he has no counsel and the court determines that the defendant is indigent, the court shall appoint counsel to represent him.

(i) When the head of a facility to which the defendant is committed discharges the defendant and the defendant is returned to court, a final report shall be filed with the court documenting the applicable reason for the discharge under Subsection (f) of this section, and the court shall furnish copies to the defense counsel and the prosecuting attorney. If the head of the facility is of the opinion 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 cause to have completed and submitted to the court a Certificate of Medical Examination for Mental Illness. If the head of the facility is of the opinion that the defendant is a person with mental retardation, as defined by Section 591.003, Health and Safety Code, the head of the facility shall cause to be submitted to the court an affidavit setting forth the conclusions reached as a result of the examination. When the report is filed with the court, the court is authorized to make a determination based solely on the report with regard to the defendant's competency to stand trial, unless the prosecuting attorney or the defense counsel objects in writing or in open court to the findings of the report within 15 days from the time the report is served on the parties. In the event of objection, the issue shall be set for a hearing before the court or, on motion by the defendant, the defense counsel, the prosecuting attorney, or the court, the hearing shall be held before a jury. The hearing shall be held within 30 days following the date of objection unless continued for good cause.

(j) No defendant who has been committed to a facility under Subsection (a) of this section may be recommitted to a facility under that subsection in connection with the same offense.

(k) If the defendant is found competent to stand trial, criminal proceedings against him may be resumed.

(l ) If the defendant is found incompetent to stand trial, and all charges pending against the defendant are not then dismissed, the court shall proceed under Section 6 of this article or shall release the defendant.

(m) If the defendant is found incompetent to stand trial, and all charges pending against the defendant are then dismissed, the court shall proceed under Section 7 of this article or shall release the defendant.

Civil Commitment—Charges Pending

Sec. 6. (a) If a defendant is found incompetent to stand trial and there is found no substantial probability that the defendant will become competent in the foreseeable future, or if the defendant is found incompetent to stand trial and the defendant has been previously committed to a facility under Subsection (a) of Section 5 of this article in connection with the same offense, and, in either event, all charges pending against the defendant are not then dismissed, the court shall determine whether there is evidence to support findings that the defendant is a person with mental illness or a person with mental retardation and requires commitment to a mental health or residential care facility.

(b) If it appears to the court that the defendant may be a person with mental illness and there is on file with the court Certificates of Medical Examination for Mental Illness by two physicians, at least one of whom must not be employed by the Texas Department of Mental Health and Mental Retardation, who have examined the defendant within 30 days of the date of the commitment hearing, the court shall impanel a jury to determine whether the defendant shall be committed to a mental health facility or the hearing may be held before the jury impaneled to determine the defendant's competency to stand trial.

(1) If there has not been filed with the court the required Certificates of Medical Examination for Mental Illness, the judge shall appoint the necessary physicians, at least one of whom shall be a psychiatrist, if one is available in the county, to examine the defendant and file certificates with the court. The judge may order the defendant to submit to the examination.

(2) 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 applies and does not conflict with this article, except that the criminal court shall conduct the proceedings whether or not the criminal court is also the county court.

(3) If the defendant has not been under observation or treatment in a mental hospital for at least 60 days under Section 5(a) of this article or under an Order of Temporary Commitment under Subtitle C, Title 7, Health and Safety Code, within the 12 months immediately preceding the date of the hearing, the instructions submitting the issue shall be framed to require the jury to state in its verdict whether the defendant is a person with mental illness and whether the defendant meets the criteria for court-ordered inpatient mental health services under Subtitle C, Title 7, Health and Safety Code.

(4) If the jury finds under Subdivision (3) of this subsection that the defendant is not a person with mental illness or does not meet the criteria for court-ordered inpatient mental health services, the court shall order the immediate release of the defendant.

If the jury finds under Subdivision (3) of this subsection that the defendant is a person with mental illness and meets the criteria for court-ordered inpatient mental health services, the court shall order that the defendant be committed to a state mental hospital for inpatient care for a period not exceeding 90 days.

(5) If the defendant has been under observation or treatment in a mental hospital for at least 60 days under Section 5(a) of this article or under an Order of Temporary Commitment under Subtitle C, Title 7, Health and Safety Code, within the 12 months immediately preceding the date of the hearing, the instructions submitting the issue shall be framed to require the jury to state in its verdict whether the defendant is a person with mental illness and whether the defendant meets the criteria for court-ordered inpatient mental health services under Subtitle C, Title 7, Health and Safety Code.

(6) If the jury finds under Subdivision (5) of this subsection that the defendant is not a person with mental illness or that the defendant does not meet the criteria for court-ordered inpatient mental health services, the court shall enter an order discharging the defendant.

If the jury finds under Subdivision (5) of this subsection that the defendant is a person with mental illness and meets the criteria for court-ordered inpatient mental health services, the court shall order that the defendant be committed as a patient to a state mental hospital for inpatient care for a period not to exceed 12 months.

(7) If the court enters an order committing the defendant to a state mental hospital, the defendant shall be treated and released in conformity with Subtitle C, Title 7, Health and Safety Code, except as may be provided in this article.

(c) If it appears to the court that the defendant may be a person with mental retardation and there is on file with the court a determination of mental retardation made in accordance with the standards established by Section 593.005, Health and Safety Code, the court shall impanel a jury to determine whether the defendant is a person with mental retardation or the hearing may be held before the jury impaneled to determine the defendant's competency to stand trial.

(1) If that determination is not on file with the court, the judge shall arrange for the examination of the defendant by a facility of the Texas Department of Mental Health and Mental Retardation or by a local mental health and mental retardation authority approved by that department. The judge may order the defendant to submit to the examination. The county shall reimburse the facility or authority that conducts the examination for the reasonable and necessary expenses incurred in conducting the examination.

(2) 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 applies and does not conflict with this article, except that the criminal court shall conduct the proceedings whether or not the criminal court is also a county court.

(3) The instructions submitting the issue of mental retardation to the jury shall be framed to require the jury to state in its verdict whether the defendant is a person with mental retardation as defined by Section 591.003, Health and Safety Code, and if so, whether the defendant meets the criteria for commitment to a residential care facility.

(4) If the jury finds that the defendant is not a person with mental retardation as defined by Section 591.003, Health and Safety Code, or that the defendant does not meet the criteria for commitment to a residential care facility, the court shall enter an order discharging the defendant.

(5) If the jury finds that the defendant is a person with mental retardation as defined by Section 591.003, Health and Safety Code, and meets the criteria for commitment to a residential care facility, the court shall enter an order declaring that fact and that the person is committed to a residential care facility of the Texas Department of Mental Health and Mental Retardation.

(6) If the court enters an order committing the defendant to a residential care facility of the Texas Department of Mental Health and Mental Retardation, the defendant shall be treated and released in accordance with Subtitle D, Title 7, Health and Safety Code, except as otherwise provided by this article.

(d) In the proceedings conducted under this section:

(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 under this section shall be 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.

Civil Commitment—Charges Dismissed

Sec. 7. If a defendant is found incompetent to stand trial and there is found no substantial probability that the defendant will become competent in the foreseeable future, or if the defendant is found incompetent to stand trial and the defendant has been previously committed to a facility under Section 5 of this article and all charges pending against the defendant are then dismissed, 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. If it appears to the court that there is evidence to support either finding, the court shall enter an order transferring the defendant to the appropriate court for civil commitment proceedings, stating that all charges pending against the defendant in that court have been dismissed, and may order the defendant detained in jail or 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 or residential care facility; provided, however, that a patient placed in a facility of the Texas Department of Mental Health and Mental Retardation pending civil hearing under this section may be detained in that facility only pursuant to an Order of Protective Custody issued under Subtitle C, Title 7, Health and Safety Code, and with the consent of the head of the facility, or the court may give the defendant into the care of a responsible person on satisfactory security being given for the defendant's proper care and protection; otherwise, the defendant shall be discharged.

General

Sec. 8. (a) A person committed to a mental health or residential care facility as a result of the proceedings initiated pursuant to Section 6 or Section 7 of this article and who presently has felony charges pending against the person or has had felony charges against the person dismissed pursuant to Section 7 of this article shall be committed to the maximum security unit of any facility designated by the Texas Department of Mental Health and Mental Retardation. Within 60 days following arrival at the maximum security unit, the person shall be transferred to a nonsecurity unit or to a community program of a mental health or residential care facility or a community mental health and mental retardation center designated by the Texas Department of Mental Health and Mental Retardation unless the person is determined to be manifestly dangerous by a review board with the Texas Department of Mental Health and Mental Retardation. The Commissioner of Mental Health and Mental Retardation shall appoint a review board of five members, including one psychiatrist licensed to practice medicine in the State of Texas and two persons who work directly with persons with mental illness or mental retardation, to determine whether the person is manifestly dangerous and, as a result of the danger the person presents, requires continued placement in a maximum security unit. The review board shall make no determination as to the person's need for treatment. A finding that the person is not manifestly dangerous is not a medical determination that the person no longer meets the criteria for involuntary civil commitment under Subtitle C or D, Title 7, Health and Safety Code. If the superintendent of the facility at which the maximum security unit is located disagrees with the determination, then the matter will be referred to the Commissioner of Mental Health and Mental Retardation who will resolve the disagreement by deciding whether the person is manifestly dangerous. A person committed to a mental health facility as a result of the proceedings initiated pursuant to Section 6 or Section 7 of this article who presently has misdemeanor charges pending against the person or has had misdemeanor charges against the person dismissed pursuant to Section 7 of this article shall be committed to the mental health facility which is designated by the Commissioner of Mental Health and Mental Retardation to serve the catchment area in which the committing court is located. A person committed to a residential care facility as a result of the proceedings initiated pursuant to Section 6 or 7 of this article and who presently has misdemeanor charges pending against or has had misdemeanor charges against the person dismissed pursuant to Section 7 of this article shall be committed to the maximum security unit of any facility designated by the Texas Department of Mental Health and Mental Retardation for a maximum of 60 days pending placement in a nonsecurity facility.

(b) The court shall order that a transcript of all medical testimony received in both the criminal proceedings and the civil commitment proceedings be prepared forthwith by the court reporters and that the transcripts, together with a statement of the facts and circumstances surrounding the alleged offense, shall accompany the patient to the mental health or residential care facility.

(c) If the head of a mental health facility determines that a patient committed to a state mental hospital for a period not exceeding 90 days as a result of proceedings initiated pursuant to Section 6 or Section 7 of this article requires extended court-ordered inpatient mental health services, the head of the facility shall notify the court from which the patient was committed in writing at least 30 days prior to the expiration of the temporary commitment. The court from which the patient was committed shall order the sheriff of the county in which the court is located to return the patient for a hearing on court-ordered inpatient mental health services or shall make arrangements for the hearing to be held in an appropriate court of the county in which the patient is hospitalized. Provided, however, that if the patient has not received a hearing on court-ordered inpatient mental health services by the date on which the temporary commitment expires, the head of the facility in which the patient is hospitalized shall cause the patient to be immediately transported to the committing court and placed in the custody of the sheriff of the county in which the court is located. That county shall reimburse the facility of the Texas Department of Mental Health and Mental Retardation for the mileage and per diem expenses of the personnel required to transport the defendant calculated in accordance with the state travel regulations in effect at the time.

(d) The head of a mental health or residential care facility to which a person has been committed or transferred as a result of the proceedings initiated pursuant to Section 6 of this article and who has received written notice from a court or prosecuting attorney that criminal charges are pending against the person shall notify the court in writing at least 14 days prior to the discharge of the person unless the notice provided for in Subsection (c) of this section has been given. A written report as to the competency of the person to stand trial shall accompany the notice of discharge.

(e) On written notice by the head of a mental health or residential care facility that in the opinion of the head of the facility, a person who has been civilly committed to that facility and against whom criminal charges are pending is competent to stand trial, or on good cause shown by the defendant, the defense counsel, or the prosecuting attorney, the court in which the criminal charges are pending may hold a hearing to determine the competency of the defendant to stand trial. The hearing shall be before a jury unless waived by agreement of the parties. The order setting the hearing shall order the defendant placed in the custody of the sheriff for transportation to the court. The court may appoint disinterested experts to examine the defendant in accordance with the provisions of Section 3 of this article. If the defendant is found to be competent to stand trial, the proceedings on the criminal charges may be continued. If the defendant is found incompetent to stand trial and is under an order of commitment to a mental health or residential care facility, the court shall order the defendant placed in the custody of the sheriff for transportation to that facility. If the defendant is found incompetent to stand trial and has been discharged from a mental health or residential care facility, the court may civilly recommit the person under Subtitle C or D, Title 7, Health and Safety Code. The recommitment shall be made to the facility from which the defendant was discharged if accomplished under Subtitle C, Title 7, Health and Safety Code, and to the Texas Department of Mental Health and Mental Retardation if accomplished under Subtitle D, Title 7, Health and Safety Code. Subsection (d) of this section shall again be followed prior to discharge of the committed person.

Time Credited

Sec. 9. The time a person charged with a criminal offense is confined in a mental health or mental retardation facility pending trial shall be credited to the term of his sentence on subsequent sentencing or resentencing.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1967, 60th Leg., p. 716, ch. 299, § 1, eff. Aug. 28, 1967; Acts 1967, 60th Leg., p. 1748, ch. 659, § 33, eff. Aug. 28, 1967; Acts 1969, 61st Leg., p. 1698, ch. 554, § 1, eff. June 10, 1969; Acts 1969, 61st Leg., p. 2474, ch. 833, § 1, eff. June 18, 1969; Acts 1971, 62nd Leg., pp. 3026, 3027, ch. 995, §§ 1, 2, eff. Aug. 30, 1971; Acts 1973, 63rd Leg., p. 658, ch. 275, § 1, eff. June 11, 1973; Acts 1973, 63rd Leg., p. 1274, ch. 468, § 1, eff. Aug. 27, 1973; Acts 1975, 64th Leg., p. 1095, ch. 415, § 1, eff. June 19, 1975; Acts 1977, 65th Leg., p. 1458, ch. 596, § 1, eff. Sept. 1, 1977.

Sec. 6(d) amended by Acts 1981, 67th Leg., p. 820, ch. 291, § 148, eff. Sept. 1, 1981; Sec. 8(a) amended by Acts 1983, 68th Leg., p. 278, ch. 54, § 1, eff. Aug. 29, 1983; Acts 1983, 68th Leg., p. 4588, ch. 772, § 1, eff. Aug. 29, 1983; Sec. 8(e) amended by Acts 1983, 68th Leg., p. 280, ch. 54, § 2, eff. Aug. 29, 1983; Sec. 3(d) amended by Acts 1989, 71st Leg., ch. 393, § 1, eff. June 14, 1989; Sec. 4(a) amended by Acts 1989, 71st Leg., ch. 393, § 2, eff. June 14, 1989; Sec. 5(a), (i) amended by Acts 1989, 71st Leg., ch. 393, § 3, eff. June 14, 1989; Sec. 6(b) amended by Acts 1989, 71st Leg., ch. 393, § 4, eff. June 14, 1989; Sec. 6(c) amended by Acts 1989, 71st Leg., ch. 393, § 5, eff. June 14, 1989; Sec. 6(d) amended by Acts 1989, 71st Leg., ch. 393, § 4, eff. June 14, 1989; Sec. 8(a), (c) amended by Acts 1989, 71st Leg., ch. 393, § 6, eff. June 14, 1989; Sec. 1 added and Sec. 1A redesignated from Sec. 1 and amended by Acts 1999, 76th Leg., ch. 561, § 1, eff. Sept. 1, 1999; Sec. 3(d), (e) amended by Acts 1999, 76th Leg., ch. 561, § 2, eff. Sept. 1, 1999; Sec. 4(a), (h), (i) amended by Acts 1999, 76th Leg., ch. 561, § 3, eff. Sept. 1, 1999; Sec. 5(a), (b), (i) amended by Acts 1999, 76th Leg., ch. 561, § 4, eff. Sept. 1, 1999; Sec. 6 amended by Acts 1999, 76th Leg., ch. 561, § 5, eff. Sept. 1, 1999; Sec. 7 amended by Acts 1999, 76th Leg., ch. 561, § 6, eff. Sept. 1, 1999; Sec. 8 amended by Acts 1999, 76th Leg., ch. 561, § 7, eff. Sept. 1, 1999; Sec. 3(a), (b), (f) amended by Acts 2001, 77th Leg., ch. 828, § 3, eff. Sept. 1, 2001; Sec. 5(a) amended by Acts 2001, 77th Leg., ch. 828, § 4, eff. Sept. 1, 2001.

Art. 46.03. Insanity defense

The Insanity Defense

Sec. 1. (a) The insanity defense provided in Section 8.01 of the Penal Code shall be submitted to the jury only if supported by competent evidence.

(b) When the insanity defense is submitted, the trier of facts shall determine and include in the verdict or judgment or both whether the defendant is guilty, not guilty, or not guilty by reason of insanity.

(c) The trier of facts shall return a verdict of not guilty by reason of insanity if the prosecution has established beyond a reasonable doubt that the alleged conduct was committed and the defense has established by a preponderance of the evidence that the defendant was insane at the time of the alleged conduct.

(d) A defendant who has been found not guilty by reason of insanity shall stand acquitted of the offense charged and may not be considered a person charged with a criminal offense.

(e) The court, the attorney for the state, or the attorney for the defendant may not inform a juror or a prospective juror of the consequences to the defendant if a verdict of not guilty by reason of insanity is returned.

Raising the Insanity Defense

Sec. 2. (a) A defendant planning to offer evidence of the insanity defense shall file a notice of his intention to offer such evidence with the court and the prosecuting attorney:

(1) at least 10 days prior to the date the case is set for trial; or

(2) if the court sets a pretrial hearing before the 10-day period, the defendant shall give notice at the hearing; or

(3) if the defendant raises the issue of his incompetency to stand trial before the 10-day period, he shall at the same time file notice of his intention to offer evidence of the insanity defense.

(b) Unless notice is timely filed pursuant to Subsection (a) of this section, evidence on the insanity defense is not admissible unless the court finds that good cause exists for failure to give notice.

Examination of the Defendant

Sec. 3. (a) If notice of intention to raise the insanity defense is filed under Section 2 of this article, the court may, on its own motion or motion by the defendant, his counsel, or the prosecuting attorney, appoint disinterested experts experienced and qualified in mental health and mental retardation to examine the defendant with regard to the insanity defense and to testify thereto at any trial or hearing on this issue.

(b) The court may order any defendant to submit to examination for the purposes described in this article. If the defendant is free on bail, the court in its discretion may order him to submit to examination. If the defendant fails or refuses to submit to examination, the court may order him to custody for examination for a reasonable period not to exceed 21 days. The court may not order a defendant to a facility operated by the Texas Department of Mental Health and Mental Retardation for examination without the consent of the head of that facility or for a period exceeding 21 days. If a defendant who has been ordered to a facility operated by the Texas Department of Mental Health and Mental Retardation for examination remains in such facility for a period of time exceeding 21 days, the head of that facility shall cause the defendant to be immediately transported to the committing court and placed in the custody of the sheriff of the county in which the committing court is located. That county shall reimburse the Texas Department of Mental Health and Mental Retardation facility for the mileage and per diem expenses of the personnel required to transport the defendant calculated in accordance with the state travel regulations in effect at that time.

(c) The court shall advise any expert appointed pursuant to this section of the facts and circumstances of the offense with which the defendant is charged and the elements of the insanity defense.

(d) A written report of the examination shall be submitted to the court within 30 days of the order of examination, and the court shall furnish copies of the report to the defense counsel and the prosecuting attorney. The report shall include a description of the procedures used in the examination and the examiner's observations and findings pertaining to the insanity defense. The examiner shall also submit a separate report setting forth his observations and findings concerning:

(1) whether the defendant is presently mentally ill and requires court-ordered mental health services; or

(2) whether the defendant is a mentally retarded person as defined in the Mentally Retarded Persons Act of 1977 (Article 5547-300, Vernon's Texas Civil Statutes).

(e) The appointed experts shall be paid by the county in which the indictment was returned or information was filed. A facility operated by the Texas Department of Mental Health and Mental Retardation which accepts a defendant for examination under Subsection (a) of this section shall be reimbursed by the county in which the indictment was returned or information was filed for such expenses incurred as are determined by the department to be reasonably necessary and incidental to the proper examination of the defendant.

(f) When a defendant wishes to be examined by a psychiatrist or other expert of his own choice, the court on timely request shall provide the examiner with reasonable opportunity to examine the defendant.

(g) The experts appointed under this section to examine the defendant with regard to the insanity defense also may be appointed by the court to examine the defendant with regard to his competency to stand trial pursuant to Section 3 of Article 46.02 of this code, provided that separate written reports concerning the defendant's competency to stand trial and the insanity defense shall be filed with the court.

Disposition Following Acquittal by Reason of Insanity

Sec. 4. (a) Act Did Not Involve Serious Bodily Injury; Civil Commitment. If a defendant is found not guilty by reason of insanity in the trial of a criminal offense, the court shall determine whether the conduct committed by the defendant involved an act, attempt, or threat of serious bodily injury to another person. If the court determines that the defendant had not committed an act, attempt, or threat of serious bodily injury to another person, then the court shall further determine whether there is evidence to support findings that the defendant is either mentally ill or is a mentally retarded person. If the court determines that there is evidence to support either of such findings, the court shall transfer the defendant to the appropriate court for civil commitment proceedings and may order the defendant detained in jail or 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 shall be committed to a mental health or mental retardation facility; provided, however, that a patient placed in a facility of the Texas Department of Mental Health and Mental Retardation pending civil hearing under this section shall only be detained pursuant to the provisions for an Order of Protective Custody as set out in the Texas Mental Health Code and with the consent of the head of the facility, or the court may give the defendant into the care of a responsible person on satisfactory security being given for his proper care and protection; otherwise, the defendant shall be discharged.

(b) Commitment to Maximum Security Unit; Transfer to Nonsecurity Unit. A person committed to a mental health or mental retardation facility as a result of the proceedings initiated pursuant to Subsection (d) of this section shall be committed to the maximum security unit of any facility designated by the Texas Department of Mental Health and Mental Retardation. Within 60 days following arrival at the maximum security unit, the person shall be transferred to a nonsecurity unit of a mental health or mental retardation facility designated by the Texas Department of Mental Health and Mental Retardation unless the person is determined to be manifestly dangerous by a review board within the Texas Department of Mental Health and Mental Retardation. 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 mental health patients or mentally retarded clients, to determine whether the person is manifestly dangerous. If the superintendent of the facility at which the maximum security unit is located disagrees with the determination, then the matter will be referred to the Commissioner of Mental Health and Mental Retardation who will resolve the disagreement by deciding whether the person is manifestly dangerous.

(c) Transcript of all Medical Testimony. The court shall order that a transcript of all medical testimony received in both the criminal proceedings and the commitment proceedings be prepared forthwith by the court reporters and that such transcripts, together with a statement of the facts and circumstances surrounding the alleged offense, shall accompany the patient to the mental health or mental retardation facility.

(d) Act, Attempt, or Threat of Serious Bodily Injury; Special Commitment; Out-patient Supervision; Recommitment. (1) Civil Commitment or Automatic Commitment for Evaluation. If a defendant is found not guilty by reason of insanity in the trial of a criminal offense and the court determines that the defendant committed an act, attempt, or threat of serious bodily injury to another person, the trial court may transfer the defendant to the appropriate court for civil commitment proceedings on receipt of that court's written consent to the transfer or may retain jurisdiction over the defendant as provided by this subdivision. A trial court that transfers a defendant to the appropriate court for civil commitment proceedings shall order the defendant detained in jail or other suitable place pending the initiation of appropriate civil proceedings. A trial court that does not transfer a defendant to the appropriate court for civil commitment proceedings under this subdivision shall retain jurisdiction over the defendant and shall proceed as provided by this subsection. The court shall order the defendant to be committed to the maximum security unit of any facility designated by the Texas Department of Mental Health and Mental Retardation until such time as the defendant is eligible for release pursuant to this subsection or is eligible for transfer to a nonsecurity facility pursuant to Subsection (b) of this section. The court shall order that an examination of the defendant's present mental condition be conducted and that a report be filed with the court.

(2) Hearing. A hearing shall take place not later than 30 days following the acquittal order to determine if the person acquitted by reason of insanity is presently mentally ill or mentally retarded and meets the criteria for involuntary commitment as provided in the Texas Mental Health Code (Article 5547-1 et seq., Vernon's Texas Civil Statutes) or the Mentally Retarded Person's Act (Article 5547-300, Vernon's Texas Civil Statutes). The hearing shall be conducted by the trial court in the same manner as a hearing on an application for involuntary commitment pursuant to the Mental Health Code or the Mentally Retarded Person's Act.

(3) Determination and Disposition. If, after the hearing, the court finds that the acquitted person meets the criteria for involuntary commitment, the court shall order that person to be committed to a mental hospital or other appropriate facility, as designated by the Texas Department of Mental Health and Mental Retardation, for a period not exceeding 90 days. The court may order the acquitted person to participate in a prescribed regimen of medical, psychiatric, or psychological care or treatment on an out-patient basis pursuant to the provisions of Subdivision (4) of this subsection. If the court finds that the person acquitted by reason of insanity does not meet the criteria for involuntary commitment, the court shall order that person's immediate release.

(4) Out-patient Supervision. If at the time of the evaluation as provided in Subdivision (1) of this subsection prior to the hearing on involuntary commitment, the report of the defendant's present mental condition includes a recommendation that the person acquitted by reason of insanity meets the criteria for involuntary commitment but that such treatment or care can be provided on an out-patient basis provided he participates in a prescribed regimen of medical, psychiatric, or psychological care or treatment, and the court finds that the acquitted person does meet those criteria, the court may order the acquitted person to participate in that prescribed regimen of medical, psychiatric, or psychological care or treatment. The court may at any time modify or revoke the out-patient regimen of medical, psychiatric, or psychological care or treatment pursuant to the requirements of the Mental Health Code or the Mentally Retarded Person's Act. The court shall review the continuing need for such order at the completion of 90 days from the issuance of the initial out-patient order and no less often than once every 12 months for subsequent out-patient orders pursuant to the requirements of the Mental Health Code or Mentally Retarded Person's Act.

(5) Judicial Release. A person acquitted by reason of insanity and committed to a mental hospital or other appropriate facility pursuant to Subdivision (3) of this subsection may only be discharged by order of the committing court in accordance with the procedures specified in this subsection. If at any time prior to the expiration of a commitment order the superintendent of the facility to which the acquitted person is committed determines that the person has recovered from his mental condition to such an extent that he no longer meets the criteria for involuntary commitment or that he continues to meet those criteria but that treatment or care can be provided on an out-patient basis provided he participates in a prescribed regimen of medical, psychiatric, or psychological care and treatment, the director of the facility shall promptly file a certificate to that effect with the clerk of the court that ordered the commitment. If the superintendent of the facility intends to recommend release, out-patient care, or continued in-patient care upon the expiration of a commitment order, the superintendent shall file a certificate to that effect with the clerk of the court that ordered the commitment at least 14 days prior to the expiration of that order. The clerk shall notify the district or county attorney upon receipt of such certificate. Upon receipt of such certificate or upon the expiration of a commitment order, the court shall order the discharge of the acquitted person or on the motion of the district or county attorney or on its own motion shall hold a hearing, prior to the expiration of the commitment order, conducted pursuant to the provisions of the Mental Health Code or the Mentally Retarded Person's Act as appropriate, to determine if the acquitted person continues to meet the criteria for involuntary commitment and whether an order should be issued requiring the person to participate in a prescribed regimen of medical, psychiatric, or psychological care or treatment on an out-patient basis as provided in Subdivision (4) of this subsection. If the court determines that the acquitted person continues to meet the criteria for involuntary commitment and that out-patient supervision is not appropriate, the court shall order that the person be returned to a mental hospital or other appropriate in-patient or residential facility. If the court finds that continued in-patient or residential care is required, the commitment will continue until the expiration of the original order, if one is still in effect, or the court shall issue a new commitment order of an appropriate duration as specified in the Mental Health Code or the Mentally Retarded Person's Act. If a hearing on a request for discharge or out-patient supervision has been held prior to the expiration of a commitment order, the court is not required to act on a subsequent request except upon the expiration of a commitment order or upon the expiration of 90 days following a hearing on a previous request. Commitment orders subsequent to an initial commitment order issued under this subsection shall be of an appropriate duration as specified in the Mental Health Code or the Mentally Retarded Person's Act, whichever is applicable.

(6) Modification or Revocation of Out-patient Supervision. The director of the facility or other individual responsible for administering a regimen of out-patient care or treatment imposed on an acquitted person pursuant to Subdivision (4) or (5) of this subsection shall notify the court ordering such out-patient care of any failure of the person to comply with that regimen or if the person's condition has so deteriorated that out-patient care is no longer appropriate. Upon such notice or upon other probable cause to believe that the person has failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, the person may be taken into custody and brought without unnecessary delay before the court having jurisdiction over him. The court shall determine, after a hearing, whether the person should be remanded to a suitable facility for protective custody, pursuant to the provisions of the Mental Health Code or the Mentally Retarded Person's Act, pending a hearing on whether the person continues to meet the criteria for involuntary commitment and whether the out-patient order should be modified or revoked.

(7) In no event may a person acquitted by reason of insanity be committed to a mental hospital or other in-patient or residential facility pursuant to this subsection for a cumulative period of time which exceeds the maximum term provided by law for the crime for which the acquitted person was tried. Upon expiration of that maximum term, the acquitted person may be further confined in such a facility only pursuant to civil commitment proceedings.

Added by Acts 1975, 64th Leg., p. 1100, ch. 415, § 2, eff. June 19, 1975. Amended by Acts 1977, 65th Leg., p. 1467, ch. 596, § 2, eff. Sept. 1, 1977.

Secs. 1, 4 amended by Acts 1983, 68th Leg., p. 2640, ch. 454, §§ 2, 3, eff. Aug. 29, 1983; Sec. 3(d) amended by Acts 1989, 71st Leg., ch. 393, § 7, eff. June 14, 1989; Sec. 4(b) amended by Acts 1989, 71st Leg., ch. 393, § 8, eff. June 14, 1989; Sec. 4(d)(1) amended by Acts 1989, 71st Leg., ch. 393, § 9, eff. June 14, 1989; Sec. 4(d)(1) amended by Acts 2001, 77th Leg., ch. 985, § 1, eff. Sept. 1, 2001.

Art. 46.04. Transportation to a Mental Health Facility or Residential Care Facility

Persons Accompanying Transport

Sec. 1. (a) A patient transported from a jail or detention facility to a mental health facility or a residential care facility shall be transported by a special officer for mental health assignment certified under Section 1701.404, Occupations Code, or by a sheriff or constable.

(b) The court ordering the transport shall require appropriate medical personnel to accompany the person transporting the patient, at the expense of the county from which the patient is transported, if there is reasonable cause to believe the patient will require medical assistance or will require the administration of medication during the transportation.

(c) A female patient must be accompanied by a female attendant.

Requirements for Transport

Sec. 2. The transportation of a patient from a jail or detention facility to a mental health facility or residential care facility must meet the following requirements:

(1) the patient must be transported directly to the facility within a reasonable amount of time and without undue delay;

(2) a vehicle used to transport the patient must be adequately heated in cold weather and adequately ventilated in warm weather;

(3) a special diet or other medical precautions recommended by the patient's physician must be followed;

(4) the person transporting the patient shall give the patient reasonable opportunities to get food and water and to use a bathroom; and

(5) the patient may not be transported with a state prisoner.

Added by Acts 1999, 76th Leg., ch. 1512, § 6, eff. Sept. 1, 1999. Sec. 1(a) amended by Acts 2001, 77th Leg., ch. 1420, § 14.736, eff. Sept. 1, 2001.

Art. 46.05. Competency to be Executed

(a) A person who is incompetent to be executed may not be executed.

(b) The trial court retains jurisdiction over motions filed by or for a defendant under this article.

(c) A motion filed under this article must identify the proceeding in which the defendant was convicted, give the date of the final judgment, set forth the fact that an execution date has been set if the date has been set, and clearly set forth alleged facts in support of the assertion that the defendant is presently incompetent to be executed. The defendant shall attach affidavits, records, or other evidence supporting the defendant's allegations or shall state why those items are not attached. The defendant shall identify any previous proceedings in which the defendant challenged the defendant's competency in relation to the conviction and sentence in question, including any challenge to the defendant's competency to be executed, competency to stand trial, or sanity at the time of the offense. The motion must be verified by the oath of some person on the defendant's behalf.

(d) On receipt of a motion filed under this article, the trial court shall determine whether the defendant has raised a substantial doubt of the defendant's competency to be executed on the basis of:

(1) the motion, any attached documents, and any responsive pleadings; and

(2) if applicable, the presumption of competency under Subsection (e).

(e) If a defendant is determined to have previously filed a motion under this article, and has previously been determined to be competent to be executed, the previous adjudication creates a presumption of competency and the defendant is not entitled to a hearing on the subsequent motion filed under this article, unless the defendant makes a prima facie showing of a substantial change in circumstances sufficient to raise a significant question as to the defendant's competency to be executed at the time of filing the subsequent motion under this article.

(f) If the trial court determines that the defendant has made a substantial showing of incompetency, the court shall order at least two mental health experts to examine the defendant using the standard described by Subsection (h) to determine whether the defendant is incompetent to be executed.

(g) If the trial court does not determine that the defendant has made a substantial showing of incompetency, the court shall deny the motion.

(h) A defendant is incompetent to be executed if the defendant does not understand:

(1) that he or she is to be executed and that the execution is imminent; and

(2) the reason he or she is being executed.

(i) Mental health experts who examine a defendant under this article shall provide within a time ordered by the trial court copies of their reports to the attorney representing the state, the attorney representing the defendant, and the court.

(j) By filing a motion under this article, the defendant waives any claim of privilege with respect to, and consents to the release of, all mental health and medical records relevant to whether the defendant is incompetent to be executed.

(k) If, on the basis of reports provided under Subsection (i), the motion, any attached documents, any responsive pleadings, and any evidence introduced in the final competency hearing, the trial court makes a finding by a preponderance of the evidence that the defendant is incompetent to be executed, the clerk shall send immediately to the court of criminal appeals in accordance with Section 8(d), Article 11.071, the appropriate documents for that court's determination of whether any existing execution date should be withdrawn and a stay of execution issued. If a stay of execution is issued by the court of criminal appeals, the trial court periodically shall order that the defendant be reexamined by mental health experts to determine whether the defendant is no longer incompetent to be executed.

(l) If the trial court does not make the finding as described by Subsection (k), the court may set an execution date as otherwise provided by law.