HB5465 - Relating to procedures regarding certain persons who are or may be persons with a mental illness or intellectual or developmental disability.

  89R5564 EAS-D     By: Moody H.B. No. 5465       A BILL TO BE ENTITLED   AN ACT   relating to procedures regarding certain persons who are or may be   persons with a mental illness or intellectual or developmental   disability.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Article 16.23, Code of Criminal Procedure, is   amended to read as follows:          Art. 16.23.  DIVERSION OF PERSONS SUFFERING MENTAL HEALTH   CRISIS OR SUBSTANCE ABUSE ISSUE. (a)  Each local  law enforcement   agency shall make a good faith effort to divert a person suffering a   mental health crisis or suffering from the effects of substance   abuse to a facility or program where the person can receive   treatment or services for the person's mental health crisis or   substance abuse issue.           (b)     Diversion for treatment or services is appropriate   under this article [ proper treatment center in the agency's   jurisdiction ] if:                (1)  [ there is an available and appropriate treatment   center in the agency's jurisdiction to which the agency may divert   the person;                [ (2) ]  it is reasonable under the circumstances  to   divert the person;                 (2)  [ (3) ]  the offense that the person is accused of is   a misdemeanor, other than a misdemeanor involving violence; and                 (3)  [ (4) ]  the mental health crisis or substance abuse   issue is suspected to be the reason the person committed the alleged   offense.           (c)  [ (b) ]  Subsection (a) does not apply to a person who is   accused of an offense under Section 49.04, 49.045, 49.05, 49.06,   49.061, 49.065, 49.07, or 49.08, Penal Code.           (d)     Each local law enforcement agency shall adopt a plan for   diverting a person suffering a mental health crisis or suffering   from the effects of substance abuse in accordance with this article   and shall submit an annual report on the plan, including any changes   to the plan, to the:                 (1)     governing body of each county or municipality   served by the agency; and                   (2)  Texas Commission on Law Enforcement.          SECTION 2.  Subchapter C, Chapter 45A, Code of Criminal   Procedure, is amended by adding Article 45A.109 to read as follows:           Art.   45A.109.     DISMISSAL BASED ON DEFENDANT'S LACK OF   CAPACITY. (a) On motion by the state, the defendant, or a person   standing in parental relation to the defendant, or on the court's   own motion, a justice or judge shall determine whether probable   cause exists to believe that a defendant, including a defendant who   is a child as defined by Article 45A.453(a) or a defendant with a   mental illness or intellectual or developmental disability, lacks   the capacity to understand the proceedings in criminal court or to   assist in the defendant's own defense and is unfit to proceed.           (b)     If the justice or judge determines that probable cause   exists for a finding under Subsection (a), after providing notice   to the state, the justice or judge may dismiss the complaint.           (c)     A dismissal of a complaint under Subsection (b) may be   appealed as provided by Article 45A.202.          SECTION 3.  Article 46B.025(b), Code of Criminal Procedure,   is amended to read as follows:          (b)  If in the opinion of an expert appointed under Article   46B.021 the defendant is incompetent to proceed, the expert shall   state in the report:                (1)  the symptoms, exact nature, severity, and expected   duration of the deficits resulting from the defendant's mental   illness or intellectual disability, if any, and the impact of the   identified condition on the factors listed in Article 46B.024;                (2)  an estimate of the period needed to restore the   defendant's competency ;                 (3)   [ , including ] whether the defendant is likely to   be restored to competency in the initial restoration period   authorized under Subchapter D, including any possible extension   under Article 46B.080 [ foreseeable future ]; and                 (4)  [ (3) ]  prospective treatment options, if any,   appropriate for the defendant.          SECTION 4.  Article 46B.055, Code of Criminal Procedure, is   amended to read as follows:          Art. 46B.055.  PROCEDURE AFTER FINDING OF INCOMPETENCY. If   the defendant is found incompetent to stand trial, the court shall :                 (1)   proceed under Subchapter D if the court determines   that the defendant is likely to be restored to competency in the   restoration period authorized under that subchapter, including any   possible extension under Article 46B.080; or                 (2)     for a defendant whom the court determines is   unlikely to be restored to competency in the period described by   Subdivision (1):                       (A)  proceed under Subchapter E or F; or                       (B)     release the defendant on bail as permitted   under Chapter 17 .          SECTION 5.  Article 46B.071(a), Code of Criminal Procedure,   is amended to read as follows:          (a)   On  [ Except as provided by Subsection (b), on ] a   determination under Article 46B.055(1) that a defendant is   incompetent to stand trial and is likely to be restored to   competency in the period authorized under this subchapter,   including any possible extension under Article 46B.080 , the court   shall:                (1)  if the defendant is charged with an offense   punishable as a Class B misdemeanor , or is charged with an offense   punishable as a Class A misdemeanor that did not result in bodily   injury to another person and the defendant has not been convicted in   the preceding two years of an offense that resulted in bodily injury   to another person :                      (A)  release the defendant on bail under Article   46B.0711; or                       (B)     if an outpatient competency restoration   program is unavailable or the defendant cannot be placed in an   outpatient competency restoration program before the 14th day after   the date of the court's order:                             (i)     on the motion of the attorney   representing the state, dismiss the charge and proceed under   Subchapter F; or                             (ii)     on the motion of the attorney   representing the defendant and notice to the attorney representing   the state:                                   (a)     set the matter to be heard not   later than the 10th day after the date of filing of the motion; and                                   (b)     dismiss the charge and proceed   under Subchapter F on a finding that an outpatient competency   restoration program is unavailable or that the defendant cannot be   placed in an outpatient competency restoration program before the   14th day after the date of the court's order; or                      [ (B)  commit the defendant to:                            [ (i)     a jail-based competency restoration   program under Article 46B.073(e); or                            [ (ii)     a mental health facility or   residential care facility under Article 46B.073(f); or ]                (2)  if the defendant is charged with an offense   punishable as a Class A misdemeanor that resulted in bodily injury   to another person or any higher category of offense or if the   defendant is charged with an offense punishable as a Class A   misdemeanor that did not result in bodily injury to another person   and the defendant has been convicted in the preceding two years of   an offense that resulted in bodily injury to another person :                      (A)  release the defendant on bail under Article   46B.072; or                      (B)  commit the defendant to a facility or a   jail-based competency restoration program under Article 46B.073(b)     [ 46B.073(c) or (d) ].          SECTION 6.  The heading to Article 46B.0711, Code of   Criminal Procedure, is amended to read as follows:          Art. 46B.0711.  RELEASE ON BAIL : CERTAIN OFFENSES NOT   INVOLVING BODILY INJURY [ FOR CLASS B MISDEMEANOR ].          SECTION 7.  Article 46B.0711(b), Code of Criminal Procedure,   is amended to read as follows:          (b)  Subject to conditions reasonably related to ensuring   public safety and the effectiveness of the defendant's treatment,   if the court determines that a defendant charged with an offense   punishable as a Class B misdemeanor , or charged under the   circumstances described by Article 46B.071(a)(1) with an offense   punishable as a Class A misdemeanor, and 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 an appropriate outpatient competency   restoration program is available for the defendant, the court   shall:                (1)  release the defendant on bail or continue the   defendant's release on bail; and                (2)  order the defendant to participate in an   outpatient competency restoration program for a period not to   exceed 60 days.          SECTION 8.  The heading to Article 46B.072, Code of Criminal   Procedure, is amended to read as follows:          Art. 46B.072.  RELEASE ON BAIL : FELONIES; CERTAIN OFFENSES   INVOLVING BODILY INJURY  [ FOR FELONY OR CLASS A MISDEMEANOR ].          SECTION 9.  Article 46B.072(a-1), Code of Criminal   Procedure, is amended to read as follows:          (a-1)  Subject to conditions reasonably related to ensuring   public safety and the effectiveness of the defendant's treatment,   [ if ] the court may release on bail, or continue the release on bail   of, [ determines that ] a defendant charged with an offense   punishable as a felony , or charged under the circumstances   described by Article 46B.071(a)(2) with an offense punishable as   [ or ] a Class A misdemeanor and found incompetent to stand trial if   the court determines the defendant is not a danger to others and may   be safely treated on an outpatient basis with the speci [Text truncated for display. Full text available on Congress.gov.]