CHAPTER 46B. INCOMPETENCY TO STAND TRIAL - Texas Statutes

CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 46B. INCOMPETENCY TO STAND TRIAL

SUBCHAPTER A. GENERAL PROVISIONS

Art. 46B.001. DEFINITIONS. In this chapter:

(1) "Department" means the Department of State Health Services.

(2) "Inpatient mental health facility" has the meaning assigned

by Section 571.003, Health and Safety Code.

(3) "Local mental health authority" has the meaning assigned by

Section 571.003, Health and Safety Code.

(4) "Local mental retardation authority" has the meaning assigned

by Section 531.002, Health and Safety Code.

(5) "Mental health facility" has the meaning assigned by Section

571.003, Health and Safety Code.

(6) "Mental illness" has the meaning assigned by Section 571.003,

Health and Safety Code.

(7) "Mental retardation" has the meaning assigned by Section

591.003, Health and Safety Code.

(8) "Residential care facility" has the meaning assigned by

Section 591.003, Health and Safety Code.

(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.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 1, eff. September 1, 2005.

Art. 46B.002. APPLICABILITY. This chapter applies to a defendant

charged with a felony or with a misdemeanor punishable by

confinement.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Art. 46B.003. INCOMPETENCY; PRESUMPTIONS. (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.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Art. 46B.004. RAISING ISSUE OF INCOMPETENCY TO STAND TRIAL. (a)

Either party may suggest by motion, or the trial court may

suggest on its own motion, that the defendant may be incompetent

to stand trial. A motion suggesting that the defendant may be

incompetent to stand trial may be supported by affidavits setting

out the facts on which the suggestion is made.

(b) If evidence suggesting the defendant may be incompetent to

stand trial comes to the attention of the court, the court on its

own motion shall suggest that the defendant may be incompetent to

stand trial.

(c) On suggestion that the defendant may be incompetent to stand

trial, the court shall determine by informal inquiry whether

there is some evidence from any source that would support a

finding that the defendant may be incompetent to stand trial.

(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.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 2, eff. September 1, 2005.

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 under Subchapter C before determining whether the defendant

is incompetent to stand trial on the merits.

(c) A trial under this chapter is not required if:

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

incompetency;

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

and

(3) the court does not, on its own motion, determine that a

trial 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. 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.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 3, eff. September 1, 2005.

Art. 46B.006. APPOINTMENT OF AND REPRESENTATION BY COUNSEL. (a)

A defendant is entitled to representation by counsel before any

court-ordered competency evaluation and during any proceeding at

which it is suggested that the defendant may be incompetent to

stand trial.

(b) If the defendant is indigent and the court has not appointed

counsel to represent the defendant, the court shall appoint

counsel as necessary to comply with Subsection (a).

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Art. 46B.007. ADMISSIBILITY OF STATEMENTS AND CERTAIN OTHER

EVIDENCE. A statement made by a defendant during an examination

or trial 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 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.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 3, eff. September 1, 2005.

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 under this chapter

whether the proceeding is before a jury or before the court.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 3, eff. September 1, 2005.

Art. 46B.009. TIME CREDITS. 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, residential care facility, or jail pending trial

under Subchapter C.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 3, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 2, eff. September 1, 2007.

Art. 46B.0095. MAXIMUM PERIOD OF FACILITY COMMITMENT OR

OUTPATIENT TREATMENT PROGRAM PARTICIPATION DETERMINED BY MAXIMUM

TERM FOR OFFENSE. (a) A defendant may not, under this chapter,

be committed to a mental hospital or other inpatient or

residential facility, ordered to participate in an outpatient

treatment program, or subjected to both inpatient and outpatient

treatment for a cumulative period that exceeds the maximum term

provided by law for the offense for which the defendant was to be

tried, except that if the defendant is charged with a misdemeanor

and has been ordered only to participate in an outpatient

treatment program under Subchapter D or E, the maximum period of

restoration is two years beginning on the date of the initial

order for outpatient treatment program participation was entered.

(b) On expiration of the maximum restoration period under

Subsection (a), the defendant may be confined for an additional

period in a mental hospital or other inpatient or residential

facility or ordered to participate for an additional period in an

outpatient treatment program, as appropriate, only pursuant to

civil commitment proceedings.

Added by Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 2, eff. September 1, 2007.

Art. 46B.010. MANDATORY DISMISSAL OF MISDEMEANOR CHARGES. If a

court orders the commitment of or participation in an outpatient

treatment program by a defendant who is charged with a

misdemeanor punishable by confinement and the defendant is not

tried before the date of expiration of the maximum period of

restoration under this chapter as described by Article 46B.0095,

the court on the motion of the attorney representing the state

shall dismiss the charge.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 2, eff. September 1, 2007.

Art. 46B.011. APPEALS. Neither the state nor the defendant is

entitled to make an interlocutory appeal relating to a

determination or ruling under Article 46B.005.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 3, eff. September 1, 2005.

Art. 46B.012. COMPLIANCE WITH CHAPTER. The failure of a person

to comply with this chapter does not provide a defendant with a

right to dismissal of charges.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

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.

Added by Acts 2005, 79th Leg., Ch.

324, Sec. 4, eff. September 1, 2005.

SUBCHAPTER B. EXAMINATION

Art. 46B.021. APPOINTMENT OF EXPERTS. (a) On a suggestion that

the defendant may be incompetent to stand trial, the court may

appoint one or more disinterested experts to:

(1) examine the defendant and report to the court on the

competency or incompetency of the defendant; and

(2) testify as to the issue of competency or incompetency of the

defendant at any trial or hearing involving that issue.

(b) On a determination that evidence exists to support a finding

of incompetency to stand trial, the court shall appoint one or

more experts to perform the duties described by Subsection (a).

(c) An expert involved in the treatment of the defendant may not

be appointed to examine the defendant under this article.

(d) The movant or other party as directed by the court shall

provide to experts appointed under this article information

relevant to a determination of the defendant's competency,

including copies of the indictment or information, any supporting

documents used to establish probable cause in the case, and

previous mental health evaluation and treatment records.

(e) The court may appoint as experts under this chapter qualified

psychiatrists or psychologists employed by the local mental

health authority or local mental retardation authority. The local

mental health authority or local mental retardation authority is

entitled to compensation and reimbursement as provided by Article

46B.027.

(f) If a defendant wishes to be examined by an expert of the

defendant's own choice, the court on timely request shall provide

the expert with reasonable opportunity to examine the defendant.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Art. 46B.022. EXPERTS: QUALIFICATIONS. (a) To qualify for

appointment under this subchapter as an expert, a psychiatrist or

psychologist must:

(1) as appropriate, be a physician licensed in this state or be a

psychologist licensed in this state who has a doctoral degree in

psychology; and

(2) have the following certification or experience or training:

(A) as appropriate, certification by:

(i) the American Board of Psychiatry and Neurology with added or

special qualifications in forensic psychiatry; or

(ii) the American Board of Professional Psychology in forensic

psychology; or

(B) experience or training consisting of:

(i) at least 24 hours of specialized forensic training relating

to incompetency or insanity evaluations;

(ii) for an appointment made before January 1, 2005, at least

five years of experience before January 1, 2004, in performing

criminal forensic evaluations for courts; or

(iii) for an appointment made on or after January 1, 2005, at

least five years of experience before January 1, 2004, in

performing criminal forensic evaluations for courts and eight or

more hours of continuing education relating to forensic

evaluations, completed in the 12 months preceding the appointment

and documented with the court.

(b) In addition to meeting qualifications required by Subsection

(a), to be appointed as an expert a psychiatrist or psychologist

must have completed six hours of required continuing education in

courses in forensic psychiatry or psychology, as appropriate, in

either of the reporting periods in the 24 months preceding the

appointment.

(c) A court may appoint as an expert a psychiatrist or

psychologist who does not meet the requirements of Subsections

(a) and (b) only if exigent circumstances require the court to

base the appointment on professional training or experience of

the expert that directly provides the expert with a specialized

expertise to examine the defendant that would not ordinarily be

possessed by a psychiatrist or psychologist who meets the

requirements of Subsections (a) and (b).

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Art. 46B.023. CUSTODY STATUS. During an examination under this

subchapter, except as otherwise ordered by the court, the

defendant shall be maintained under the same custody or status as

the defendant was maintained under immediately before the

examination began.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Art. 46B.024. FACTORS CONSIDERED IN EXAMINATION. During an

examination under this subchapter and in any report based on that

examination, an expert shall consider, in addition to other

issues determined relevant by the expert, the following:

(1) the capacity of the defendant during criminal proceedings to:

(A) rationally understand the charges against the defendant and

the potential consequences of the pending criminal proceedings;

(B) disclose to counsel pertinent facts, events, and states of

mind;

(C) engage in a reasoned choice of legal strategies and options;

(D) understand the adversarial nature of criminal proceedings;

(E) exhibit appropriate courtroom behavior; and

(F) testify;

(2) whether the defendant has a diagnosable mental illness or is

a person with mental retardation;

(3) the impact of the mental illness or mental retardation, if

existent, on the defendant's capacity to engage with counsel in a

reasonable and rational manner; and

(4) if the defendant is taking psychoactive or other medication:

(A) whether the medication is necessary to maintain the

defendant's competency; and

(B) the effect, if any, of the medication on the defendant's

appearance, demeanor, or ability to participate in the

proceedings.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Art. 46B.025. EXPERT'S REPORT. (a) An expert's report to the

court must state an opinion on a defendant's competency or

incompetency to stand trial or explain why the expert is unable

to state such an opinion and must also:

(1) identify and address specific issues referred to the expert

for evaluation;

(2) document that the expert explained to the defendant the

purpose of the evaluation, the persons to whom a report on the

evaluation is provided, and the limits on rules of

confidentiality applying to the relationship between the expert

and the defendant;

(3) in general terms, describe procedures, techniques, and tests

used in the examination and the purpose of each procedure,

technique, or test; and

(4) state the expert's clinical observations, findings, and

opinions on each specific issue referred to the expert by the

court, and state specifically any issues on which the expert

could not provide an opinion.

(b) If in the opinion of an expert appointed under Article

46B.021 the defendant is incompetent to proceed, the expert shall

state in the report:

(1) the exact nature of the deficits resulting from the

defendant's mental illness or mental retardation, if any, that

impact the factors listed in Article 46B.024, contributing to the

defendant's incompetency; and

(2) prospective treatment options, if any, appropriate for the

defendant.

(c) An expert's report may not state the expert's opinion on the

defendant's sanity at the time of the alleged offense, if in the

opinion of the expert the defendant is incompetent to proceed.

(d) The court shall direct an expert to provide the expert's

report to the court and the appropriate parties in the form

approved by the Texas Correctional Office on Offenders with

Medical or Mental Impairments under Section 614.0032(b), Health

and Safety Code.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

1269, Sec. 1, eff. June 18, 2005.

Art. 46B.026. REPORT DEADLINE. (a) Except as provided by

Subsection (b), an expert examining the defendant shall provide

the report on the defendant' s competency or incompetency to

stand trial to the court, the attorney representing the state,

and the attorney representing the defendant not later than the

30th day after the date on which the expert was ordered to

examine the defendant and prepare the report.

(b) For good cause shown, the court may permit an expert to

complete the examination and report and provide the report to the

court and attorneys at a date later than the date required by

Subsection (a).

(c) As soon as practicable after the court receives a report

under this article, the court shall forward the report to the

Texas Correctional Office on Offenders with Medical or Mental

Impairments to enable that office to discharge its duties under

Section 614.0032(b), Health and Safety Code.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

1269, Sec. 2, eff. June 18, 2005.

Art. 46B.027. COMPENSATION OF EXPERTS; REIMBURSEMENT OF

FACILITIES. (a) For any appointment under this chapter, the

county in which the indictment was returned or information was

filed shall pay for services described by Articles 46B.021(a)(1)

and (2). If those services are provided by an expert who is an

employee of the local mental health authority or local mental

retardation authority, the county shall pay the authority for the

services.

(b) The county in which the indictment was returned or

information was filed shall reimburse a facility that accepts a

defendant for examination under this chapter for expenses

incurred that are determined by the department to be reasonably

necessary and incidental to the proper examination of the

defendant.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

SUBCHAPTER C. INCOMPETENCY TRIAL

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

a trial 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.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 6, eff. September 1, 2005.

Art. 46B.052. JURY VERDICT. (a) If a jury determination of the

issue of incompetency to stand trial is required by Article

46B.051(a), the court shall require the jury to state in its

verdict whether the defendant is incompetent to stand trial.

(b) The verdict must be concurred in by each juror.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Art. 46B.053. PROCEDURE AFTER FINDING OF COMPETENCY. If 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.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 7, eff. September 1, 2005.

Art. 46B.054. UNCONTESTED INCOMPETENCY. If the court finds that

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.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 7, eff. September 1, 2005.

Art. 46B.055. PROCEDURE AFTER FINDING OF INCOMPETENCY. If the

defendant is found incompetent to stand trial, the court shall

proceed under Subchapter D.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

SUBCHAPTER D. PROCEDURES AFTER DETERMINATION OF INCOMPETENCY

Art. 46B.071. OPTIONS ON DETERMINATION OF INCOMPETENCY. On a

determination that a defendant is incompetent to stand trial, the

court shall:

(1) commit the defendant to a facility under Article 46B.073; or

(2) release the defendant on bail under Article 46B.072.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Art. 46B.072. RELEASE ON BAIL. (a) Subject to conditions

reasonably related to assuring public safety and the

effectiveness of the defendant's treatment, if the court

determines that a defendant found incompetent to stand trial is

not a danger to others and may be safely treated on an outpatient

basis with the specific objective of attaining competency to

stand trial and if an appropriate outpatient treatment program is

available for the defendant, the court:

(1) may release on bail a defendant found incompetent to stand

trial with respect to a felony or may continue the defendant's

release on bail; and

(2) shall release on bail a defendant found incompetent to stand

trial with respect to a misdemeanor or shall continue the

defendant's release on bail.

(b) The court shall order a defendant released on bail under

Subsection (a) to participate in an outpatient treatment program

for a period not to exceed 120 days.

(c) Notwithstanding Subsection (a), the court may order a

defendant to participate in an outpatient treatment program under

this article only if:

(1) the court receives and approves a comprehensive plan that:

(A) provides for the treatment of the defendant for purposes of

competency restoration; and

(B) identifies the person who will be responsible for providing

that treatment to the defendant; and

(2) the court finds that the treatment proposed by the plan will

be available to and will be provided to the defendant.

(d) An order issued under this article may require the defendant

to participate in:

(1) as appropriate, an outpatient treatment program administered

by a community center or an outpatient treatment program

administered by any other entity that provides outpatient

competency restoration services; and

(2) an appropriate prescribed regimen of medical, psychiatric,

or psychological care or treatment, including care or treatment

involving the administration of psychoactive medication,

including those required under Article 46B.086.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 3, eff. September 1, 2007.

Art. 46B.073. COMMITMENT FOR RESTORATION TO COMPETENCY. (a) This

article applies only to a defendant not released on bail.

(b) The court shall commit a defendant described by Subsection

(a) to a mental health facility or residential care facility for

a period not to exceed 120 days for further examination and

treatment toward the specific objective of attaining competency

to stand trial.

(c) If the defendant is charged with an offense listed in

Article 17.032(a), other than an offense listed in Article

17.032(a)(6), or the indictment alleges 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 described by

Subsection (c) and the indictment does not allege 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.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 9, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 4, eff. September 1, 2007.

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.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 10, eff. September 1, 2005.

Art. 46B.075. TRANSFER OF DEFENDANT TO FACILITY OR OUTPATIENT

TREATMENT PROGRAM. An order issued under Article 46B.072 or

46B.073 must place the defendant in the custody of the sheriff

for transportation to the facility or outpatient treatment

program, as applicable, in which the defendant is to receive

treatment for purposes of competency restoration.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 5, eff. September 1, 2007.

Art. 46B.076. COURT'S ORDER. (a) If the defendant is found

incompetent to stand trial, not later than the date of the order

of commitment or of release on bail, as applicable, the court

shall send a copy of the order to the facility of the department

to which the defendant is committed or the outpatient treatment

program to which the defendant is released. The court shall also

provide to the facility or outpatient treatment program copies of

the following made available to the court during the incompetency

trial:

(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.

(b) The court shall order that the transcript of all medical

testimony received by the jury or court be promptly prepared by

the court reporter and forwarded to the proper facility or

outpatient treatment program.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 11, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 5, eff. September 1, 2007.

Art. 46B.077. INDIVIDUAL TREATMENT PROGRAM. (a) The facility to

which the defendant is committed or the outpatient treatment

program to which the defendant is released on bail shall:

(1) develop an individual program of treatment;

(2) assess and evaluate whether the defendant will obtain

competency in the foreseeable future; and

(3) report to the court and to the local mental health authority

or to the local mental retardation authority on the defendant's

progress toward achieving competency.

(b) If the defendant is committed to an inpatient mental health

facility or to a residential care facility, the facility shall

report to the court at least once during the commitment period.

If the defendant is released to a treatment program not provided

by an inpatient mental health facility or a residential care

facility, the treatment program shall report to the court:

(1) not later than the 14th day after the date on which the

defendant's treatment begins; and

(2) until the defendant is no longer released to the treatment

program, at least once during each 30-day period following the

date of the report required by Subdivision (1).

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 6, eff. September 1, 2007.

Art. 46B.078. CHARGES SUBSEQUENTLY DISMISSED. If the charges

pending against a defendant are dismissed, the court that issued

the order under Article 46B.072 or 46B.073 shall send a copy of

the order of dismissal to the sheriff of the county in which the

court is located and to the head of the facility or the provider

of the outpatient treatment program, as appropriate. On receipt

of the copy of the order, the facility or outpatient treatment

program shall discharge the defendant into the care of the

sheriff for transportation in the manner described by Article

46B.082.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 7, eff. September 1, 2007.

Art. 46B.079. NOTICE AND REPORT TO COURT. (a) The head of the

facility or the provider of the outpatient treatment program, as

appropriate, not later than the 15th day before the date on which

a restoration period is to expire, shall notify the applicable

court that the restoration period is about to expire.

(b) The head of the facility or outpatient treatment program

provider shall promptly notify the court when the head of the

facility or outpatient treatment program provider believes 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 or outpatient treatment

program provider gives notice to the court under Subsection (a)

or (b), the head of the facility or outpatient treatment program

provider 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 or participating in the outpatient treatment program.

To enable any objection to the findings of the report to be made

in a timely manner under Article 46B.084(a), 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 or outpatient treatment program

provider notifies the court that the initial restoration period

is about to expire, the notice may contain a request for an

extension of the period for an additional period of 60 days and

an explanation for the basis of the request.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 12, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 7, eff. September 1, 2007.

Art. 46B.080. EXTENSION OF ORDER. (a) On a request of the head

of a facility or a treatment program provider that is made under

Article 46B.079(d) and notwithstanding any other provision of

this subchapter, the court may enter an order extending the

initial restoration period for an additional period of 60 days.

(b) The court may enter an order under Subsection (a) only if

the court determines that, on the basis of information provided

by the head of the facility or the treatment program provider:

(1) the defendant has not attained competency; and

(2) an extension of the restoration period will likely enable

the facility or program to restore the defendant to competency.

(c) The court may grant only one extension under this article

for a period of restoration ordered under this subchapter.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 12, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 7, eff. September 1, 2007.

Art. 46B.081. RETURN TO COURT. Subject to Article 46B.082(b), a

defendant committed or released on bail under this subchapter

shall be returned to the applicable court as soon as practicable

after notice to the court is provided under Article 46B.079, but

not later than the date of expiration of the period for

restoration specified by the court under Article 46B.072 or

46B.073.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 13, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 7, eff. September 1, 2007.

Art. 46B.082. TRANSPORTATION OF DEFENDANT. (a) On notification

from the court under Article 46B.078, the sheriff of the county

in which the court is located or the sheriff's designee shall

transport the defendant to the court.

(b) If before the 15th day after the date on which the court

received notification under Article 46B.079 a defendant committed

to a facility of the department or ordered to participate in an

outpatient treatment program has not been transported to the

court that issued the order under Article 46B.072 or 46B.073, as

applicable, the head of the facility to which the defendant is

committed or the provider of the outpatient treatment program in

which the defendant is participating shall cause the defendant to

be promptly transported to the court and placed in the custody of

the sheriff of the county in which the court is located. The

county in which the court is located shall reimburse the

department for the mileage and per diem expenses of the personnel

required to transport the defendant, calculated in accordance

with rates provided in the General Appropriations Act for state

employees.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 7, eff. September 1, 2007.

Art. 46B.083. SUPPORTING COMMITMENT INFORMATION PROVIDED BY

FACILITY HEAD OR OUTPATIENT TREATMENT PROGRAM PROVIDER. (a) If

the head of the facility or outpatient treatment program provider

believes that the defendant is a person with mental illness and

meets the criteria for court-ordered mental health services under

Subtitle C, Title 7, Health and Safety Code, the head of the

facility or the outpatient treatment program provider shall have

submitted to the court a certificate of medical examination for

mental illness.

(b) If the head of the facility or the outpatient treatment

program provider believes that the defendant is a person with

mental retardation, the head of the facility or the outpatient

treatment program provider shall have submitted to the court an

affidavit stating the conclusions reached as a result of the

examination.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 14, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 7, eff. September 1, 2007.

Art. 46B.084. PROCEEDINGS ON RETURN OF DEFENDANT TO COURT. (a)

On the return of a defendant to the 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.079(c), 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 court

received notification under Article 46B.079. The court shall

make the determination not later than the 20th day after the date

on which the court received notification under Article 46B.079,

regardless of whether a party objects to the report as described

by this subsection and the issue is set for hearing under

Subsection (b).

(b) If a party objects under Subsection (a), the issue shall be

set for a hearing. The hearing is before the court, except that

on motion by the defendant, the defense counsel, the prosecuting

attorney, or the court, the hearing shall be held before a jury.

(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

court with respect to any hearing that is conducted under this

article in the manner described by this subsection.

(c) Repealed by Acts 2007, 80th Leg., R.S., Ch. 1307, Sec. 21,

eff. September 1, 2007.

(d) If the defendant is found competent to stand trial, criminal

proceedings against the defendant may be resumed.

(e) If the defendant is found incompetent to stand trial and if

all charges pending against the defendant are not dismissed, the

court shall proceed under Subchapter E.

(f) If the defendant is found incompetent to stand trial and if

all charges pending against the defendant are dismissed, the

court shall proceed under Subchapter F.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 15, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 8, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 21, eff. September 1, 2007.

Art. 46B.085. SUBSEQUENT RESTORATION PERIODS AND EXTENSIONS OF

THOSE PERIODS PROHIBITED. (a) The court may order only one

initial period of restoration and one extension under this

subchapter in connection with the same offense.

(b) After an initial restoration period and an extension are

ordered as described by Subsection (a), any subsequent court

orders for treatment must be issued under Subchapter E or F.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 16, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 9, eff. September 1, 2007.

Art. 46B.086. COURT-ORDERED MEDICATIONS. (a) This article

applies only to a defendant:

(1) who is determined under this chapter to be incompetent to

stand trial;

(2) who either:

(A) remains confined in a correctional facility, as defined by

Section 1.07, Penal Code, for a period exceeding 72 hours while

awaiting transfer to an inpatient mental health facility, a

residential care facility, or an outpatient treatment program;

(B) is committed to an inpatient mental health facility or a

residential care facility for the purpose of competency

restoration;

(C) is confined in a correctional facility while awaiting

further criminal proceedings following competency restoration

treatment; or

(D) is subject to Article 46B.072, if the court has made the

determinations required by Subsection (a) of that article;

(3) for whom a correctional facility that employs or contracts

with a licensed psychiatrist, an inpatient mental health

facility, a residential care facility, or an outpatient treatment

program provider has prepared a continuity of care plan that

requires the defendant to take psychoactive medications; and

(4) who, after a hearing held under Section 574.106, Health and

Safety Code, if applicable, has been found to not meet the

criteria prescribed by Sections 574.106(a) and (a-1), Health and

Safety Code, for court-ordered administration of psychoactive

medications.

(b) If a defendant described by Subsection (a) refuses to take

psychoactive medications as required by the defendant's

continuity of care plan, the director of the correctional

facility or outpatient treatment program provider, as applicable,

shall notify the court in which the criminal proceedings are

pending of that fact not later than the end of the next business

day following the refusal. The court shall promptly notify the

attorney representing the state and the attorney representing the

defendant of the defendant's refusal. The attorney representing

the state may file a written motion to compel medication. The

motion to compel medication must be filed not later than the 15th

day after the date a judge issues an order stating that the

defendant does not meet the criteria for court-ordered

administration of psychoactive medications under Section 574.106,

Health and Safety Code, except that, for a defendant in an

outpatient treatment program, the motion may be filed at any

time.

(c) The court, after notice and after a hearing held not later

than the fifth day after the defendant is returned to the

committing court, may authorize the director of the correctional

facility or the program provider, as applicable, to have the

medication administered to the defendant, by reasonable force if

necessary.

(d) The court may issue an order under this article only if the

order is supported by the testimony of two physicians, one of

whom is the physician at or with the applicable correctional

facility or outpatient treatment program who is prescribing the

medication as a component of the defendant's continuity of care

plan and another who is not otherwise involved in proceedings

against the defendant. The court may require either or both

physicians to examine the defendant and report on the examination

to the court.

(e) The court may issue an order under this article if the court

finds by clear and convincing evidence that:

(1) the prescribed medication is medically appropriate, is in

the best medical interest of the defendant, and does not present

side effects that cause harm to the defendant that is greater

than the medical benefit to the defendant;

(2) the state has a clear and compelling interest in the

defendant obtaining and maintaining competency to stand trial;

(3) no other less invasive means of obtaining and maintaining

the defendant's competency exists; and

(4) the prescribed medication will not unduly prejudice the

defendant's rights or use of defensive theories at trial.

(f) A statement made by a defendant to a physician during an

examination under Subsection (d) may not be admitted against the

defendant in any criminal proceeding, other than at:

(1) a hearing on the defendant's incompetency; or

(2) any proceeding at which the defendant first introduces into

evidence the contents of the statement.

(g) For a defendant described by Subsection (a)(2)(A), an order

issued under this article:

(1) authorizes the initiation of any appropriate mental health

treatment for the defendant awaiting transfer; and

(2) does not constitute authorization to retain the defendant in

a correctional facility for competency restoration treatment.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

717, Sec. 8, eff. June 17, 2005.

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 9, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

624, Sec. 4, eff. June 19, 2009.

SUBCHAPTER E. CIVIL COMMITMENT: CHARGES PENDING

Art. 46B.101. APPLICABILITY. This subchapter applies to a

defendant against whom a court is required to proceed under

Article 46B.084(e).

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Art. 46B.102. CIVIL COMMITMENT HEARING: MENTAL ILLNESS. (a)

If it appears to the court that the defendant may be a person

with mental illness, the court shall hold a hearing to determine

whether the defendant should be court-ordered to mental health

services under Subtitle C, Title 7, Health and Safety Code.

(b) Proceedings for commitment of the defendant to court-ordered

mental health services are governed by Subtitle C, Title 7,

Health and Safety Code, to the extent that Subtitle C applies and

does not conflict with this chapter, except that the criminal

court shall conduct the proceedings whether or not the criminal

court is also the county court.

(c) If the court enters an order committing the defendant to a

mental health facility, the defendant shall be:

(1) treated in conformity with Subtitle C, Title 7, Health and

Safety Code, except as otherwise provided by this chapter; and

(2) released in conformity with Article 46B.107.

(d) In proceedings conducted under this subchapter for a

defendant described by Subsection (a):

(1) an application for court-ordered temporary or extended

mental health services may not be required;

(2) the provisions of Subtitle C, Title 7, Health and Safety

Code, relating to notice of hearing do not apply; and

(3) appeals from the criminal court proceedings are 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.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 10, eff. September 1, 2007.

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

(a) If it appears to the court that the defendant may be a person

with mental retardation, the court shall hold a hearing to

determine whether the defendant is a person with mental

retardation.

(b) 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 D applies and does not

conflict with this chapter, except that the criminal court shall

conduct the proceedings whether or not the criminal court is also

a county court.

(c) If the court enters an order committing the defendant to a

residential care facility, the defendant shall be:

(1) treated and released in accordance with Subtitle D, Title 7,

Health and Safety Code, except as otherwise provided by this

chapter; and

(2) released in conformity with Article 46B.107.

(d) In the proceedings conducted under this subchapter for a

defendant described by Subsection (a):

(1) an application to have the defendant declared a person with

mental retardation may not be required;

(2) the provisions of Subtitle D, Title 7, Health and Safety

Code, relating to notice of hearing do not apply; and

(3) appeals from the criminal court proceedings are to the court

of appeals as in the proceedings for commitment to a residential

care facility under Subtitle D, Title 7, Health and Safety Code.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 19, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 11, eff. September 1, 2007.

Art. 46B.104. CIVIL 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), other than an offense listed in Article 17.032(a)(6);

or

(2) the indictment charging the offense alleges an affirmative

finding under Section 3g(a)(2), Article 42.12.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 20, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 12, eff. September 1, 2007.

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

(a) Unless a defendant is determined to be manifestly dangerous

by a department review board, not later than the 60th day after

the date the defendant arrives at the maximum security unit, the

defendant shall be transferred to:

(1) a unit of an inpatient mental health facility other than a

maximum security unit;

(2) a residential care facility; or

(3) a program designated by a local mental health authority or a

local mental retardation authority.

(b) 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 persons with mental illness or

mental retardation, to determine whether the defendant is

manifestly dangerous and, as a result of the danger the defendant

presents, requires continued placement in a maximum security

unit.

(c) The review board may not make a determination as to the

defendant's need for treatment.

(d) A finding that the defendant is not manifestly dangerous is

not a medical determination that the defendant no longer meets

the criteria for involuntary civil commitment under Subtitle C or

D, Title 7, Health and Safety Code.

(e) If the superintendent of the facility at which the maximum

security unit is located disagrees with the determination, the

matter shall be referred to the commissioner of mental health and

mental retardation. The commissioner shall decide whether the

defendant is manifestly dangerous.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 21, eff. September 1, 2005.

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

VIOLENCE. (a) A defendant committed to a facility as a result

of the proceedings initiated under this chapter, other than a

defendant described by Article 46B.104, shall be committed to:

(1) a facility designated by the department; or

(2) an outpatient treatment program.

(b) A facility or outpatient treatment program may not refuse to

accept a placement ordered under this article on the grounds that

criminal charges against the defendant are pending.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 13, eff. September 1, 2007.

Art. 46B.107. RELEASE OF DEFENDANT AFTER CIVIL COMMITMENT. (a)

The release from the department, an outpatient treatment program,

or a facility of a defendant committed under this chapter is

subject to disapproval by the committing court if the court or

the attorney representing the state has notified the head of the

facility or outpatient treatment provider, as applicable, to

which the defendant has been committed that a criminal charge

remains pending against the defendant.

(b) If the head of the facility or outpatient treatment provider

to which a defendant has been committed under this chapter

determines that the defendant should be released from the

facility, the head of the facility or outpatient treatment

provider shall notify the committing court and the sheriff of the

county from which the defendant was committed in writing of the

release not later than the 14th day before the date on which the

facility or outpatient treatment provider intends to release the

defendant.

(c) The head of the facility or outpatient treatment provider

shall provide with the notice a written statement that states an

opinion as to whether the defendant to be released has attained

competency to stand trial.

(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.

(e) If the court determines that release is not appropriate, the

court shall enter an order directing the head of the facility or

the outpatient treatment provider to not release the defendant.

(f) If an order is entered under Subsection (e), any subsequent

proceeding to release the defendant is subject to this article.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 24, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 14, eff. September 1, 2007.

Art. 46B.108. REDETERMINATION OF COMPETENCY. (a) If criminal

charges against a defendant found incompetent to stand trial have

not been dismissed, the trial court at any time may determine

whether the defendant has been restored to competency.

(b) An inquiry into restoration of competency under this

subchapter may be made at the request of the head of the mental

health facility, outpatient treatment provider, 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.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 25, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 15, eff. September 1, 2007.

Art. 46B.109. REQUEST BY HEAD OF FACILITY OR OUTPATIENT

TREATMENT PROVIDER. (a) The head of a facility or outpatient

treatment provider to which a defendant has been committed as a

result of a finding of incompetency to stand trial may request

the court to determine that the defendant has been restored to

competency.

(b) The head of the facility or outpatient treatment provider

shall provide with the request a written statement that in their

opinion the defendant is competent to stand trial.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1307, Sec. 16, eff. September 1, 2007.

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.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

324, Sec. 26, eff. September 1, 2005.

Art. 46B.111. APPOINTMENT OF EXAMINERS. On the filing of a

request or motion to determine that the defendant has been

restored to competency or on the court's decision on its own

motion to inquire into restoration of competency, the court may

appoint disinterested experts to examine the defendant in

accordance with Subchapter B.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Art. 46B.112. DETERMINATION OF RESTORATION WITH AGREEMENT. On

the filing of a request or motion to determine that the defendant

has been restored to competency or on the court's decision on its

own motion to inquire into restoration of competency, the court

shall find the defendant competent to stand trial and proceed in

the same manner as if the defendant had been found restored to

competency at a hearing if:

(1) both parties agree that the defendant is competent to stand

trial; and

(2) the court concurs.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004.

Art. 46B.113. DETERMINATION OF RESTORATION WITHOUT AGREEMENT.

(a) The court shall hold a hearing on a request by the head of a

facility or outpatient treatment provider to which a defendant

has been committed as a result of a finding of incompetency to

stand trial to determine whether the defendant has been restored

to competency.

(b) The court may hold a hearing on a motion to determine

whether the defendant has been restored to competency or on the

court's decision on its own motion to inquire into restoration of

competency, and shall hold a hearing if a motion and any

supporting material establish good reason to believe the

defendant may have been restored to competency.

(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.

(d) If the head of a facility or outpatient treatment provider

to which the defendant was committed as a result of a finding of

incompetency to stand trial has provided an opinion that the

defendant has regained competency, competency is presumed at a

hearing under this subchapter and continuing incompetency must be

proved by a preponderance of the evidence.

(e) If the head of a facility or outpatient treatment provider

has not provided an opinion described by Subsection (d),

incompetency is presumed at a hearing under this subchapter and

the defendant's competency must be proved by a preponderance of