CODE OF CRIMINAL PROCEDURE
CHAPTER 46. 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, Sec. 1, eff. Aug. 28, 1967; Acts 1967,
60th Leg., p. 1748, ch. 659, Sec. 33, eff. Aug. 28, 1967; Acts 1969,
61st Leg., p. 1698, ch. 554, Sec. 1, eff. June 10, 1969; Acts 1969,
61st Leg., p. 2474, ch. 833, Sec. 1, eff. June 18, 1969; Acts 1971,
62nd Leg., pp. 3026, 3027, ch. 995, Sec. 1, 2, eff. Aug. 30, 1971;
Acts 1973, 63rd Leg., p. 658, ch. 275, Sec. 1, eff. June 11, 1973;
Acts 1973, 63rd Leg., p. 1274, ch. 468, Sec. 1, eff. Aug. 27, 1973;
Acts 1975, 64th Leg., p. 1095, ch. 415, Sec. 1, eff. June 19, 1975;
Acts 1977, 65th Leg., p. 1458, ch. 596, Sec. 1, eff. Sept. 1, 1977.
Sec. 6(d) amended by Acts 1981, 67th Leg., p. 820, ch. 291, Sec.
148, eff. Sept. 1, 1981; Sec. 8(a) amended by Acts 1983, 68th Leg.,
p. 278, ch. 54, Sec. 1, eff. Aug. 29, 1983; Acts 1983, 68th Leg., p.
4588, ch. 772, Sec. 1, eff. Aug. 29, 1983; Sec. 8(e) amended by Acts
1983, 68th Leg., p. 280, ch. 54, Sec. 2, eff. Aug. 29, 1983; Sec.
3(d) amended by Acts 1989, 71st Leg., ch. 393, Sec. 1, eff. June 14,
1989; Sec. 4(a) amended by Acts 1989, 71st Leg., ch. 393, Sec. 2,
eff. June 14, 1989; Sec. 5(a), (i) amended by Acts 1989, 71st Leg.,
ch. 393, Sec. 3, eff. June 14, 1989; Sec. 6(b) amended by Acts 1989,
71st Leg., ch. 393, Sec. 4, eff. June 14, 1989; Sec. 6(c) amended by
Acts 1989, 71st Leg., ch. 393, Sec. 5, eff. June 14, 1989; Sec. 6(d)
amended by Acts 1989, 71st Leg., ch. 393, Sec. 4, eff. June 14,
1989; Sec. 8(a), (c) amended by Acts 1989, 71st Leg., ch. 393, Sec.
6, eff. June 14, 1989; Sec. 1 added and Sec. 1A redesignated from
Sec. 1 and amended by Acts 1999, 76th Leg., ch. 561, Sec. 1, eff.
Sept. 1, 1999; Sec. 3(d), (e) amended by Acts 1999, 76th Leg., ch.
561, Sec. 2, eff. Sept. 1, 1999; Sec. 4(a), (h), (i) amended by Acts
1999, 76th Leg., ch. 561, Sec. 3, eff. Sept. 1, 1999; Sec. 5(a),
(b), (i) amended by Acts 1999, 76th Leg., ch. 561, Sec. 4, eff.
Sept. 1, 1999; Sec. 6 amended by Acts 1999, 76th Leg., ch. 561, Sec.
5, eff. Sept. 1, 1999; Sec. 7 amended by Acts 1999, 76th Leg., ch.
561, Sec. 6, eff. Sept. 1, 1999; Sec. 8 amended by Acts 1999, 76th
Leg., ch. 561, Sec. 7, eff. Sept. 1, 1999; Sec. 3(a), (b), (f)
amended by Acts 2001, 77th Leg., ch. 828, Sec. 3, eff. Sept. 1,
2001; Sec. 5(a) amended by Acts 2001, 77th Leg., ch. 828, Sec. 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 Chapter 46B, 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, Sec. 2, eff. June
19, 1975. Amended by Acts 1977, 65th Leg., p. 1467, ch. 596, Sec. 2,
eff. Sept. 1, 1977.
Secs. 1, 4 amended by Acts 1983, 68th Leg., p. 2640, ch. 454, Sec. 2,
3, eff. Aug. 29, 1983; Sec. 3(d) amended by Acts 1989, 71st Leg.,
ch. 393, Sec. 7, eff. June 14, 1989; Sec. 4(b) amended by Acts 1989,
71st Leg., ch. 393, Sec. 8, eff. June 14, 1989; Sec. 4(d)(1)
amended by Acts 1989, 71st Leg., ch. 393, Sec. 9, eff. June 14,
1989; Sec. 4(d)(1) amended by Acts 2001, 77th Leg., ch. 985, Sec.
1, eff. Sept. 1, 2001; Sec. 3(g) amended by Acts 2003, 78th Leg.,
ch. 35, Sec. 5, eff. Jan. 1, 2004.
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, Sec. 6, eff. Sept. 1, 1999.
Sec. 1(a) amended by Acts 2001, 77th Leg., ch. 1420, Sec. 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.
Added by Acts 1999, 76th Leg., ch. 654, Sec. 1, eff. Sept. 1, 1999.
Renumbered from Vernon's Ann. C.C.P. art. 46.04 by Acts 2001, 77th
Leg., ch. 1420, Sec. 21.001(13), eff. Sept. 1, 2001.
