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From the 2005 Regular Session of the Texas Legislature

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	S.B. No. 679



AN ACT



relating to the procedure for determining
the incompetency of a defendant to stand trial.


BE IT ENACTED BY THE LEGISLATURE OF THE
STATE OF TEXAS:


SECTION 1.  Article 46B.001, Code of Criminal
Procedure, is amended by amending Subdivision (1) and
adding Subdivision (9) to read as follows:


	(1)  "Department" means the Texas
Department of State Health Services Mental
Health and Mental Retardation.


	(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.


SECTION 2.  Article 46B.004, Code of Criminal
Procedure, is amended by amending Subsection (d) and
adding Subsection (e) to read as follows:


(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.


SECTION 3.  Articles 46B.005, 46B.007,
46B.008, 46B.009, and 46B.011, Code of Criminal Procedure,
are amended to read as follows:


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 hearing
under Subchapter C before determining whether the defendant
is incompetent to stand trial on the merits.


(c)  A trial under this chapter
The court is not required to
hold a hearing if:


	(1)  neither party's counsel party
requests a jury trial on the issue
of incompetency;


	(2)  neither party's counsel party
opposes a finding of incompetency; and


	(3)  the court does not, on its own motion,
determine that a trial hearing
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
sentencing.  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.


Art. 46B.007.  ADMISSIBILITY OF STATEMENTS
AND CERTAIN OTHER EVIDENCE.  A statement made by a
defendant during an examination or trial hearing
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 hearing
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 section.


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 hearing
under this chapter whether the proceeding hearing
is before a jury or before the court.


Art. 46B.009.  TIME CREDITS.  (a)
 A court sentencing a person convicted of a criminal
offense shall credit to the term of the person's sentence
the time the person is confined in a mental health
facility, or residential
care facility, or jail pending trial under
Subchapter C.


(b)  A defendant may not be committed
to a mental hospital or other in-patient or residential
facility under this chapter for a cumulative period
that exceeds the maximum term provided by law for the
offense for which the defendant was to be tried.  On
expiration of that maximum term, the defendant may
be confined for an additional period in a mental hospital
or other in-patient or residential facility only pursuant
to civil commitment proceedings.


Art. 46B.011.  APPEALS.  Neither the state
nor the defendant is entitled to make an interlocutory
appeal relating to a determination or ruling
of incompetency under Article 46B.005.


SECTION 4.  Subchapter A, Chapter 46B,
Code of Criminal Procedure, is amended by adding Article
46B.013 to read as follows:


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.


SECTION 5.  The heading to Subchapter C,
Chapter 46B, Code of Criminal Procedure, is amended
to read as follows:






SECTION 6.  Article 46B.051, Code of Criminal
Procedure, is amended to read as follows:


Art. 46B.051.  TRIAL HEARING
BEFORE JUDGE OR JURY.  (a)  If a court holds a trial
hearing 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.


SECTION 7.  Articles 46B.053 and 46B.054,
Code of Criminal Procedure, are amended to read as
follows:


Art. 46B.053.  PROCEDURE AFTER FINDING
OF COMPETENCY.  If at a hearing
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.


Art. 46B.054.  UNCONTESTED INCOMPETENCY.
 If the court finds as required by Article
46B.005 that there is
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.


SECTION 8.  The heading to Subchapter D,
Chapter 46B, Code of Criminal Procedure, is amended
to read as follows:






SECTION 9.  Subsections (c) and (d), Article
46B.073, Code of Criminal Procedure, are amended to
read as follows:


(c)  If the defendant is charged with an
offense listed in Article 17.032(a) or the indictment
alleges requests an affirmative
finding under Section 3g(a)(2), Article 42.12, the
court shall enter an order committing the defendant
to the maximum security unit of any facility designated
by the department, to an agency of the United States
operating a mental hospital, or to a Department of
Veterans Affairs hospital.


(d)  If the defendant is not charged with
an offense listed in Article 17.032(a) and the indictment
does not allege request 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.


SECTION 10.  Article 46B.074, Code of Criminal
Procedure, is amended to read as follows:


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.


SECTION 11.  Subsection (a), Article 46B.076,
Code of Criminal Procedure, is amended to read as follows:


(a)  If the defendant is found incompetent
to stand trial, the court shall send a copy of the
order to the facility to which the defendant is committed
not later than the date the defendant is committed
to the facility.  The court shall also provide to the
facility copies of the following made available to
the court during the incompetency trial hearing:


	(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.


SECTION 12.  Articles 46B.079 and 46B.080,
Code of Criminal Procedure, are amended to read as
follows:


Art. 46B.079.  RETURN TO COMMITTING COURT.
 (a)  A defendant committed under this subchapter
shall be returned to the committing court as soon as
practicable after the date on which the defendant's
term of commitment expires.


(b)  A defendant committed under this
subchapter whose term of commitment has not yet expired
shall be returned to the committing court as soon as
practicable after the 15th day following the date on
which the parties receive service on any report filed
under Article 46B.080(b) regarding the defendant's
ability to attain competency, except that, if a party
objects to the findings of the report and the issue
is set for a hearing under Article 46B.084, the defendant
may not be returned to the committing court earlier
than 72 hours before the date the hearing is scheduled
the earliest of the following dates:


	(1)  the date on which the facility
determines that the defendant has attained competency;


	(2)  the date on which the facility
determines that the defendant will not attain competency
in the foreseeable future; or


	(3)  the date on which the term
of commitment expires.


Art. 46B.080.  NOTICE TO COMMITTING COURT.
 (a)  The head of a facility to which a defendant has
been committed under this subchapter, not later than
the 14th day before the date on which a commitment
order is to expire, shall notify the committing court
that the term of the commitment is about to expire.


(b)  The head of the facility to which
a defendant has been committed under this subchapter
shall promptly notify the committing court when the
head of the facility is of the opinion that:


	(1)  the defendant has attained competency
to stand trial; or


	(2)  the defendant will not attain competency
in the foreseeable future.


(c)  When the head of the facility gives
notice to the court under Subsection (a) or (b), the
head of the facility also shall file a final report
with the court stating the reason for the proposed
discharge under this chapter and including a list of
the types and dosages of medications with which the
defendant was treated for mental illness while in the
facility.  The court shall provide copies of the report
to the attorney representing the defendant and the
attorney representing the state.


(d)  If the head of the facility
to which the defendant has been committed notifies
the court that the commitment order is about to expire,
the notice may contain a request for an extension of
the commitment order for a period of 60 days and an
explanation for the basis of the request.


SECTION 13.  Subsection (a), Article 46B.081,
Code of Criminal Procedure, is amended to read as follows:


(a)  On the request of the head of a facility
made under Article 46B.080(d) 46B.080(c),
the court may enter an order extending the term of
the commitment order for a period of 60 days.


SECTION 14.  Article 46B.083, Code of Criminal
Procedure, is amended to read as follows:


Art. 46B.083.  SUPPORTING COMMITMENT
INFORMATION PROVIDED REPORT
BY FACILITY HEAD.  (a)  When the head of a
facility to which the defendant is committed discharges
the defendant and the defendant is returned to the
committing court, the head of the facility shall file
a final report with the court stating the reason for
the discharge under Article 46B.080.  The court shall
furnish copies of the report to the defense counsel
and the prosecuting attorney.


(b)  If the head of
the facility believes that the defendant is a person
with mental illness and meets the criteria for court-ordered
inpatient mental health services under Subtitle C,
Title 7, Health and Safety Code, the head of the facility
shall have submitted to the court a certificate of
medical examination for mental illness.  The
head of the facility shall include in the final report
a list of the types and dosages of medications with
which the defendant was treated for mental illness
while in the facility.


(b) (c)  If the
head of the facility is of the opinion that the defendant
is a person with mental retardation, the head of the
facility shall have submitted to the court an affidavit
stating the conclusions reached as a result of the
examination.


SECTION 15.  Article 46B.084, Code of Criminal
Procedure, is amended by amending Subsections (a) and
(c) and adding Subsection (b-1) to read as follows:


(a)  On the return of a defendant to the
committing court, the court shall make a determination
with regard to the defendant's competency to stand
trial.  The court may make the determination based
solely on the report filed under Article 46B.080(c)
46B.080(b), unless any party objects
in writing or in open court to the findings of the
report not later than the 15th day after the date on
which the report is served on the parties.


(b-1)  If the hearing is before the
court, the hearing may be conducted by means of an
electronic broadcast system as provided by Article
46B.013.  Notwithstanding any other provision of this
chapter, the defendant is not required to be returned
to the committing court with respect to any hearing
that is conducted under this article in the manner
described by this subsection.


(c)  The hearing shall be held within 30
days following the date of objection unless continued
for good cause for a period not to exceed 30 days.


SECTION 16.  Article 46B.085, Code of Criminal
Procedure, is amended to read as follows:


Art. 46B.085.  SUBSEQUENT COMMITMENTS
AND EXTENSIONS RECOMMITMENT
PROHIBITED.  (a)  The court may order only one commitment
and one extension under this subchapter A
defendant committed under this subchapter may not be
recommitted under this subchapter in connection
with the same offense.


(b)  After a commitment and an extension
are ordered as described by Subsection (a), any subsequent
court orders for treatment must be issued under Subchapter
E or F.


SECTION 17.  The heading to Subchapter
E, Chapter 46B, Code of Criminal Procedure, is amended
to read as follows:






SECTION 18.  The heading to Article 46B.102,
Code of Criminal Procedure, is amended to read as follows:


Art. 46B.102.  CIVIL COMMITMENT
HEARING:  MENTAL ILLNESS.


SECTION 19.  The heading to Article 46B.103,
Code of Criminal Procedure, is amended to read as follows:


Art. 46B.103.  CIVIL COMMITMENT
HEARING:  MENTAL RETARDATION.


SECTION 20.  Article 46B.104, Code of Criminal
Procedure, is amended to read as follows:


Art. 46B.104.  CIVIL EXTENDED
COMMITMENT PLACEMENT:  FINDING OF VIOLENCE.  A defendant
committed to a facility as a result of proceedings
initiated under this chapter shall be committed to
the maximum security unit of any facility designated
by the department if:


	(1)  the defendant is charged with an offense
listed in Article 17.032(a); or


	(2)  the indictment charging the offense
alleges requests an affirmative
finding under Section 3g(a)(2), Article 42.12.


SECTION 21.  The heading to Article 46B.105,
Code of Criminal Procedure, is amended to read as follows:


Art. 46B.105.  TRANSFER FOLLOWING CIVIL
EXTENDED COMMITMENT PLACEMENT.


SECTION 22.  The heading to Article 46B.106,
Code of Criminal Procedure, is amended to read as follows:


Art. 46B.106.  CIVIL EXTENDED
COMMITMENT PLACEMENT:  NO FINDING OF VIOLENCE.


SECTION 23.  The heading to Article 46B.107,
Code of Criminal Procedure, is amended to read as follows:


Art. 46B.107.  RELEASE OF DEFENDANT AFTER
CIVIL COMMITMENT.


SECTION 24.  Subsection (d), Article 46B.107,
Code of Criminal Procedure, is amended to read as follows:


(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.


SECTION 25.  Subsection (b), Article 46B.108,
Code of Criminal Procedure, is amended to read as follows:


(b)  An inquiry into restoration of competency
under this subchapter may be made at the request of
the head of the mental health facility or residential
care facility to which the defendant has been committed,
the defendant, the attorney representing the defendant,
or the attorney representing the state, or may be made
on the court's own motion.


SECTION 26.  Article 46B.110, Code of Criminal
Procedure, is amended to read as follows:


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.


SECTION 27.  Subsection (c), Article 46B.113,
Code of Criminal Procedure, is amended to read as follows:


(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.


SECTION 28.  Article 46B.114, Code of Criminal
Procedure, is amended to read as follows:


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
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.


SECTION 29.  Article 46B.115, Code of Criminal
Procedure, is amended by adding Subsection (c) to read
as follows:


(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.


SECTION 30.  Subsection (a), Article 46B.117,
Code of Criminal Procedure, is amended to read as follows:


(a)  If a defendant under order of commitment
to a facility is found to not have been restored to
competency to stand trial, the court shall remand the
defendant pursuant to that order of commitment, and,
if applicable, order the defendant placed in the
custody of the sheriff or the sheriff's designee for
transportation back to the facility.


SECTION 31.  The heading to Subchapter
F, Chapter 46B, Code of Criminal Procedure, is amended
to read as follows:






SECTION 32.  The heading to Article 46B.151,
Code of Criminal Procedure, is amended to read as follows:


Art. 46B.151.  COURT DETERMINATION RELATED
TO CIVIL COMMITMENT.


SECTION 33.  Subsection (a), Article 46B.151,
Code of Criminal Procedure, is amended to read as follows:


(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.


SECTION 34.  Article 46B.171, Code of Criminal
Procedure, is amended to read as follows:


Art. 46B.171.  TRANSCRIPTS AND OTHER
RECORDS; DOCUMENTATION.  (a)
 The court shall order that:


	(1)  a transcript of all medical testimony
received in both the criminal proceedings and the civil
commitment proceedings under Subchapter E or F be prepared
as soon as possible by the court reporters; and


	(2)  copies of documents listed in Article
46B.076 accompany the defendant to the mental health
facility or residential care facility.


(b)  On the request of the defendant
or the attorney representing the defendant, a mental
health facility or a residential care facility shall
provide to the defendant or the attorney copies of
the facility's records regarding the defendant.


SECTION 35.  Section 614.0032, Health and
Safety Code, is amended to read as follows:


Sec. 614.0032.  SPECIAL DUTIES RELATED
TO MEDICALLY RECOMMENDED SUPERVISION; DETERMINATIONS
REGARDING COMPETENCY OR FITNESS TO PROCEED COMPETENCY
DETERMINATION.  (a)  The office shall perform
duties imposed on the office by Section 508.146, Government
Code.


(b)  The office, with the special assistance
of committee members appointed under Section 614.002(b)(1),
shall:


	(1)  review examinations to determine
the competency of defendants in criminal cases to stand
trial and examinations to determine the fitness
of children to proceed with respect to adjudications
of delinquent conduct or conduct indicating a need
for supervision; and


	(2)  periodically shall
report to the legislature and the court of criminal
appeals findings made as a result of the review
described by Subdivision (1) to the
legislature and the court of criminal appeals.


(c)  A district or juvenile court shall
submit to the office on a monthly basis all reports
based on examinations described by Subsection (b).


SECTION 36.  (a)  The change in law made
by this Act in amending Articles 46B.001, 46B.107,
46B.113, 46B.114, 46B.115, and 46B.117, Code of Criminal
Procedure, applies only to a competency hearing requested
by the motion of a party or held on the motion of the
court on or after the effective date of this Act. 
A competency hearing requested by the motion of a party
or held on the motion of the court before the effective
date of this Act is covered by the law in effect when
the motion for a hearing was made by a party or by
the court, as applicable, and the former law is continued
in effect for that purpose.


(b)  The change in law made by this Act
in amending Articles 46B.004, 46B.011, and 46B.074
and Subsection (c), Article 46B.084, Article 46B.085,
and Subsection (a), Article 46B.151, Code of Criminal
Procedure, applies only to a defendant charged with
an offense committed on or after the effective date
of this Act.  A defendant charged with an offense committed
before the effective date of this Act is covered by
the law in effect when the offense was committed, and
the former law is continued in effect for that purpose.
 For purposes of this subsection, an offense was committed
before the effective date of this Act if any element
of the offense was committed before that date.


(c)  The change in law made by this Act
in amending Articles 46B.009, 46B.080, 46B.083, and
46B.171, Code of Criminal Procedure, and adding Subsection
(b-1), Article 46B.084, Code of Criminal Procedure,
applies to a defendant charged with an offense committed
before, on, or after the effective date of this Act.


SECTION 37.  Notwithstanding Section 16,
Chapter 35, Acts of the 78th Legislature, Regular Session,
2003, a determination of incompetency is covered by
Chapter 46B, Code of Criminal Procedure, for a defendant:


	(1)  against whom proceedings were initiated
before January 1, 2004, under former Article 46.02,
Code of Criminal Procedure; and


	(2)  for whom proceedings have not become
final before the effective date of this Act.


SECTION 38.  This Act takes effect September
1, 2005.





______________________________   ______________________________



President of
the Senate             Speaker of the House



I hereby certify that S.B. No. 679 passed
the Senate on April 21, 2005, by the following vote:
 Yeas 31, Nays 0; and that the Senate concurred in
House amendment on May 23, 2005, by a viva-voce vote.




______________________________


    Secretary of the Senate




I hereby certify that S.B. No. 679 passed
the House, with amendment, on May 19, 2005, by a non-record
vote.




______________________________


    Chief Clerk of the House




Approved:


______________________________


             Date


______________________________


           Governor