HBA-KMH S.B. 421 76(R)    BILL ANALYSIS


Office of House Bill AnalysisS.B. 421
By: Shapiro
Criminal Jurisprudence
5/4/1999
Engrossed



BACKGROUND AND PURPOSE 

During the 75th Legislature, the criteria governing commitment to mental
health facilities under Chapter 574, Health and Safety Code, were revised.
Corresponding amendments were not made in Article 46.02, Code of Criminal
Procedure, governing commitment of individuals determined incompetent to
stand trial.  Currently, individuals with mental retardation determined
incompetent to stand trial and charged with misdemeanor offenses must be
committed to the maximum security unit at Vernon State Hospital.  Once
these individuals are determined no longer manifestly dangerous, which may
be at the time of admission since their offenses do not involve serious
threat or harm to others, they are transferred to a specialized unit within
a state school.   

S.B. 421 alters the legal terms in the current statute to conform to the
amendments to the Mental Health Code.  This bill requires a mental health
examiner to find that the defendant in a criminal case meets the criteria
set forth in the Mental Health provisions of the Code of Criminal Procedure
when establishing mental illness or mental retardation; requires a mental
health examiner to be a physician or licensed psychologist; requires a
person with mental illness who is found to be incompetent to stand trial
and has committed a misdemeanor to be committed to a designated maximum
security unit; and repeals Section 46.01 (Mental Illness After Conviction),
Code of Criminal Procedure. 

This bill establishes criteria to be used in the determination of mental
competency in the prosecution of criminal cases and in the disposition of
defendants found to be incompetent before trial or after conviction.  

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Article 46.02, Code of Criminal Procedure, by
redesignating Section 1 as Section 1A and adding Section 1, as follows: 

 Sec. 1. DEFINITION. Defines "residential care facility."  Makes
nonsubstantive changes. 

SECTION 2.  Amends Sections 3(d) and (e), Article 46.02, Code of Criminal
Procedure, to require an examiner to submit a report concerning whether the
defendant is a person with mental illness requiring court-ordered inpatient
mental health services under Subtitle C (Texas Mental Health Code), Title
7, Health and Safety Code, or is a person with mental retardation requiring
commitment to a residential care facility under Subtitle D (Persons with
Mental Retardation Act), Title 7, Health and Safety Code.  Deletes a
provision regarding criteria for mental illness.  Deletes a provision
defining retardation under the Mentally Retarded Persons Act of 1977.
Requires a physician to submit a Certificate of Medical Examination for
Mental Illness if a determination is made that the defendant is a person
with mental illness, rather than mentally ill.  Requires a physician or
licensed psychologist to submit an affidavit, if a determination is made in
accordance with standards in Section 593.005 (Determination of Mental
Retardation), Health and Safety Code, that the defendant is a person with
mental retardation, rather than a mentally retarded person.  Deletes a
provision designating the approved facilities for the examination.  Makes
nonsubstantive changes. 
 
SECTION 3. Amends Sections 4(a), (h), and (i), Article 46.02, Code of
Criminal Procedure, to require the court to proceed under Subtitle C, Title
7, Health and Safety Code, or release the defendant, if the court
determines the defendant is a person with a mental illness or retardation,
rather than mentally ill or mentally retarded person. Deletes provisions
requiring inpatient mental health.  Makes conforming and nonsubstantive
changes. 

SECTION 4. Amends Sections 5(a), (b), and (i), Article 46.02, Code of
Criminal Procedure, to prohibit a person from being committed to a
residential care, rather than a mental retardation facility, without
medical or psychiatric testimony.  Requires a Certificate of Medical
Examination for Mental Illness to be filed with the court, if the head of
the facility determines the defendant meets the criteria for court-ordered
inpatient mental health services, under Subtitle C, Title 7, Health and
Safety Code. Requires the head of a facility to submit an affidavit if the
head of the facility determines the defendant to be a person with mental
retardation, under the guides defined in Section 591.003 (Definitions),
Health and Safety Code.  Makes conforming changes. 

SECTION 5. Amends Section 6, Article 46.02, Code of Criminal Procedure, to
set forth requirements for trial proceedings.  Requires the court to
impanel a jury to determine if the defendant is a person with mental
retardation or competent to stand trial, if there is on file with the court
a determination of mental retardation in accordance with Section 593.005,
Health and Safety Code. Deletes a provision specifying an Affidavit of
Examination of Alleged Mentally Retarded Person to meet the requirement to
impanel a jury to determine competency to stand trial.  Authorizes a local
mental health and mental retardation authority, rather than a diagnostic
center,  to conduct the examination.  Provides that proceedings for
commitment to a residential care facility are governed by Subtitle D, Title
7, Health and Safety Code, to the extent that the subtitle applies and does
not conflict with this article.  Deletes text regarding applicable
provisions.  Requires the jury to state whether the defendant meets the
criteria for commitment, if the jury determines the defendant to be a
person with mental retardation.  Provides that an application for mental
health services to have the defendant declared as a person with a mental
retardation, may not be required.  Provides that provisions of Subtitles C
and D, Title 7, Health and Human Code relating to notice of hearing do not
apply.  Requires appeals from criminal court proceedings under this section
to be to the court of appeals as in the proceedings for court-ordered
inpatient mental health services.  Makes conforming and nonsubstantive
changes. 

SECTION 6. Amends Section 7, Article 46.02, Code of Criminal Procedure, to
make conforming and nonsubstantive changes. 

SECTION 7. Amends Section 8, Article 46.02, Code of Criminal Procedure, to
require notification of a discharge of a person with pending criminal
charges, unless provided for in Subsection (c) of the section. 

SECTION 8. Repealer: Article 46.01 (Mental Illness After Conviction), Code
of Criminal Procedure. 

SECTION 9. Makes application of this Act prospective.

SECTION 10. Effective date: September 1, 1999.

SECTION 11. Emergency clause.