CHAPTER 46C. INSANITY DEFENSE - Texas Statutes

CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 46C. INSANITY DEFENSE

SUBCHAPTER A. GENERAL PROVISIONS

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

(1) "Commissioner" means the commissioner of state health

services.

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

(3) "Mental illness" has the meaning assigned by Section

571.003, Health and Safety Code.

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

591.003, Health and Safety Code.

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

Section 591.003, Health and Safety Code.

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

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

Art. 46C.002. MAXIMUM PERIOD OF COMMITMENT DETERMINED BY MAXIMUM

TERM FOR OFFENSE. (a) A person acquitted by reason of insanity

may not be committed to a mental hospital or other inpatient or

residential care facility or ordered to receive outpatient or

community-based treatment and supervision under Subchapter F for

a cumulative period that exceeds the maximum term provided by law

for the offense for which the acquitted person was tried.

(b) On expiration of that maximum term, the acquitted person may

be further confined in a mental hospital or other inpatient or

residential care facility or ordered to receive outpatient or

community-based treatment and supervision only under civil

commitment proceedings.

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

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

SUBCHAPTER B. RAISING THE INSANITY DEFENSE

Art. 46C.051. NOTICE OF INTENT TO RAISE INSANITY DEFENSE. (a)

A defendant planning to offer evidence of the insanity defense

must file with the court a notice of the defendant's intention to

offer that evidence.

(b) The notice must:

(1) contain a certification that a copy of the notice has been

served on the attorney representing the state; and

(2) be filed at least 20 days before the date the case is set

for trial, except as described by Subsection (c).

(c) If before the 20-day period the court sets a pretrial

hearing, the defendant shall give notice at the hearing.

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

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

Art. 46C.052. EFFECT OF FAILURE TO GIVE NOTICE. Unless notice

is timely filed under Article 46C.051, evidence on the insanity

defense is not admissible unless the court finds that good cause

exists for failure to give notice.

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

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

SUBCHAPTER C. COURT-ORDERED EXAMINATION AND REPORT

Art. 46C.101. APPOINTMENT OF EXPERTS. (a) If notice of

intention to raise the insanity defense is filed under Article

46C.051, the court may, on its own motion or motion by the

defendant, the defendant's counsel, or the attorney representing

the state, appoint one or more disinterested experts to:

(1) examine the defendant with regard to the insanity defense;

and

(2) testify as to the issue of insanity at any trial or hearing

involving that issue.

(b) The court shall advise an expert appointed under this

article of the facts and circumstances of the offense with which

the defendant is charged and the elements of the insanity

defense.

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

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

Art. 46C.102. EXPERTS: QUALIFICATIONS. (a) The court may

appoint qualified psychiatrists or psychologists as experts under

this chapter. 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) at least five years of experience in performing criminal

forensic evaluations for courts; and

(iii) 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

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 2005, 79th Leg., Ch.

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

Art. 46C.103. COMPETENCY TO STAND TRIAL: CONCURRENT

APPOINTMENT. (a) An expert appointed under this subchapter to

examine the defendant with regard to the insanity defense also

may be appointed by the court to examine the defendant with

regard to the defendant's competency to stand trial under Chapter

46B, if the expert files with the court separate written reports

concerning the defendant's competency to stand trial and the

insanity defense.

(b) Notwithstanding Subsection (a), an expert may not examine

the defendant for purposes of determining the defendant's sanity

and may not file a report regarding the defendant's sanity if in

the opinion of the expert the defendant is incompetent to

proceed.

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

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

Art. 46C.104. ORDER COMPELLING DEFENDANT TO SUBMIT TO

EXAMINATION. (a) For the purposes described by this chapter,

the court may order any defendant to submit to examination,

including a defendant who is free on bail. If the defendant

fails or refuses to submit to examination, the court may order

the defendant to custody for examination for a reasonable period

not to exceed 21 days. Custody ordered by the court under this

subsection may include custody at a facility operated by the

department.

(b) If a defendant who has been ordered to a facility operated

by the department for examination remains in the facility for a

period that exceeds 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 facility for the mileage and per diem

expenses of the personnel required to transport the defendant,

calculated in accordance with the state travel rules in effect at

that time.

(c) The court may not order a defendant to a facility operated

by the department for examination without the consent of the head

of that facility.

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

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

Art. 46C.105. REPORTS SUBMITTED BY EXPERTS. (a) A written

report of the examination shall be submitted to the court not

later than the 30th day after the date of the order of

examination. The court shall provide copies of the report to the

defense counsel and the attorney representing the state.

(b) The report must include a description of the procedures used

in the examination and the examiner's observations and findings

pertaining to the insanity defense.

(c) The examiner shall submit a separate report stating the

examiner's observations and findings concerning:

(1) whether the defendant is presently a person with a mental

illness and requires court-ordered mental health services under

Subtitle C, Title 7, Health and Safety Code; or

(2) whether the defendant is presently a person with mental

retardation.

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

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

Art. 46C.106. COMPENSATION OF EXPERTS. (a) The appointed

experts shall be paid by the county in which the indictment was

returned or information was filed.

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

information was filed shall reimburse a facility operated by the

department that accepts a defendant for examination under this

subchapter 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 2005, 79th Leg., Ch.

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

Art. 46C.107. EXAMINATION BY EXPERT OF DEFENDANT'S CHOICE. If a

defendant wishes to be examined by an expert of the defendant's

own choice, the court on timely request shall provide the

examiner with reasonable opportunity to examine the defendant.

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

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

SUBCHAPTER D. DETERMINATION OF ISSUE OF DEFENDANT'S SANITY

Art. 46C.151. DETERMINATION OF SANITY ISSUE BY JURY. (a) In a

case tried to a jury, the issue of the defendant's sanity shall

be submitted to the jury only if the issue is supported by

competent evidence. The jury shall determine the issue.

(b) If the issue of the defendant's sanity is submitted to the

jury, the jury shall determine and specify in the verdict whether

the defendant is guilty, not guilty, or not guilty by reason of

insanity.

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

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

Art. 46C.152. DETERMINATION OF SANITY ISSUE BY JUDGE. (a) If a

jury trial is waived and if the issue is supported by competent

evidence, the judge as trier of fact shall determine the issue of

the defendant's sanity.

(b) The parties may, with the consent of the judge, agree to

have the judge determine the issue of the defendant's sanity on

the basis of introduced or stipulated competent evidence, or

both.

(c) If the judge determines the issue of the defendant's sanity,

the judge shall enter a finding of guilty, not guilty, or not

guilty by reason of insanity.

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

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

Art. 46C.153. GENERAL PROVISIONS RELATING TO DETERMINATION OF

SANITY ISSUE BY JUDGE OR JURY. (a) The judge or jury shall

determine that a defendant is not guilty by reason of insanity

if:

(1) the prosecution has established beyond a reasonable doubt

that the alleged conduct constituting the offense was committed;

and

(2) the defense has established by a preponderance of the

evidence that the defendant was insane at the time of the alleged

conduct.

(b) The parties may, with the consent of the judge, agree to

both:

(1) dismissal of the indictment or information on the ground

that the defendant was insane; and

(2) entry of a judgment of dismissal due to the defendant's

insanity.

(c) An entry of judgment under Subsection (b)(2) has the same

effect as a judgment stating that the defendant has been found

not guilty by reason of insanity.

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

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

Art. 46C.154. INFORMING JURY REGARDING CONSEQUENCES OF

ACQUITTAL. The court, the attorney representing 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.

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

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

Art. 46C.155. FINDING OF NOT GUILTY BY REASON OF INSANITY

CONSIDERED ACQUITTAL. (a) Except as provided by Subsection (b),

a defendant who is found not guilty by reason of insanity stands

acquitted of the offense charged and may not be considered a

person charged with an offense.

(b) A defendant who is found not guilty by reason of insanity is

not considered to be acquitted for purposes of Chapter 55.

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

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

Art. 46C.156. JUDGMENT. (a) In each case in which the insanity

defense is raised, the judgment must reflect whether the

defendant was found guilty, not guilty, or not guilty by reason

of insanity.

(b) If the defendant was found not guilty by reason of insanity,

the judgment must specify the offense of which the defendant was

found not guilty.

(c) If the defendant was found not guilty by reason of insanity,

the judgment must reflect the finding made under Article 46C.157.

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

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

Art. 46C.157. DETERMINATION REGARDING DANGEROUS CONDUCT OF

ACQUITTED PERSON. If a defendant is found not guilty by reason

of insanity, the court immediately shall determine whether the

offense of which the person was acquitted involved conduct that:

(1) caused serious bodily injury to another person;

(2) placed another person in imminent danger of serious bodily

injury; or

(3) consisted of a threat of serious bodily injury to another

person through the use of a deadly weapon.

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

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

Art. 46C.158. CONTINUING JURISDICTION OF DANGEROUS ACQUITTED

PERSON. If the court finds that the offense of which the person

was acquitted involved conduct that caused serious bodily injury

to another person, placed another person in imminent danger of

serious bodily injury, or consisted of a threat of serious bodily

injury to another person through the use of a deadly weapon, the

court retains jurisdiction over the acquitted person until

either:

(1) the court discharges the person and terminates its

jurisdiction under Article 46C.268; or

(2) the cumulative total period of institutionalization and

outpatient or community-based treatment and supervision under the

court's jurisdiction equals the maximum term provided by law for

the offense of which the person was acquitted by reason of

insanity and the court's jurisdiction is automatically terminated

under Article 46C.269.

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

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

Art. 46C.159. PROCEEDINGS REGARDING NONDANGEROUS ACQUITTED

PERSON. If the court finds that the offense of which the person

was acquitted did not involve conduct that caused serious bodily

injury to another person, placed another person in imminent

danger of serious bodily injury, or consisted of a threat of

serious bodily injury to another person through the use of a

deadly weapon, the court shall proceed under Subchapter E.

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

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

Art. 46C.160. DETENTION PENDING FURTHER PROCEEDINGS. (a) On a

determination by the judge or jury that the defendant is not

guilty by reason of insanity, pending further proceedings under

this chapter, the court may order the defendant detained in jail

or any other suitable place for a period not to exceed 14 days.

(b) The court may order a defendant detained in a facility of

the department or a facility of the Department of Aging and

Disability Services under this article only with the consent of

the head of the facility.

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

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

SUBCHAPTER E. DISPOSITION FOLLOWING ACQUITTAL BY REASON OF

INSANITY: NO FINDING OF DANGEROUS CONDUCT

Art. 46C.201. DISPOSITION: NONDANGEROUS CONDUCT. (a) If the

court determines that the offense of which the person was

acquitted did not involve conduct that caused serious bodily

injury to another person, placed another person in imminent

danger of serious bodily injury, or consisted of a threat of

serious bodily injury to another person through the use of a

deadly weapon, the court shall determine whether there is

evidence to support a finding that the person is a person with a

mental illness or with mental retardation.

(b) If the court determines that there is evidence to support a

finding of mental illness or mental retardation, the court shall

enter an order transferring the person to the appropriate court

for civil commitment proceedings to determine whether the person

should receive court-ordered mental health services under

Subtitle C, Title 7, Health and Safety Code, or be committed to a

residential care facility to receive mental retardation services

under Subtitle D, Title 7, Health and Safety Code. The court may

also order the person:

(1) detained in jail or any other suitable place pending the

prompt initiation and prosecution of appropriate civil

proceedings by the attorney representing the state or other

person designated by the court; or

(2) placed in the care of a responsible person on satisfactory

security being given for the acquitted person's proper care and

protection.

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

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

Art. 46C.202. DETENTION OR RELEASE. (a) Notwithstanding

Article 46C.201(b), a person placed in a department facility or a

facility of the Department of Aging and Disability Services

pending civil hearing as described by that subsection may be

detained only with the consent of the head of the facility and

under an Order of Protective Custody issued under Subtitle C or

D, Title 7, Health and Safety Code.

(b) If the court does not detain or place the person under

Article 46C.201(b), the court shall release the person.

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

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

SUBCHAPTER F. DISPOSITION FOLLOWING ACQUITTAL BY

REASON OF INSANITY: FINDING OF DANGEROUS CONDUCT

Art. 46C.251. COMMITMENT FOR EVALUATION AND TREATMENT; REPORT.

(a) The court shall order the acquitted person to be committed

for evaluation of the person's present mental condition and for

treatment to the maximum security unit of any facility designated

by the department. The period of commitment under this article

may not exceed 30 days.

(b) The court shall order that:

(1) a transcript of all medical testimony received in the

criminal proceeding be prepared as soon as possible by the court

reporter and the transcript be forwarded to the facility to which

the acquitted person is committed; and

(2) the following information be forwarded to the facility and,

as applicable, to the department or the Department of Aging and

Disability Services:

(A) the complete name, race, and gender of the person;

(B) any known identifying number of the person, including social

security number, driver's license number, or state identification

number;

(C) the person's date of birth; and

(D) the offense of which the person was found not guilty by

reason of insanity and a statement of the facts and circumstances

surrounding the alleged offense.

(c) The court shall order that a report be filed with the court

under Article 46C.252.

(d) To determine the proper disposition of the acquitted person,

the court shall hold a hearing on disposition not later than the

30th day after the date of acquittal.

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

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

Art. 46C.252. REPORT AFTER EVALUATION. (a) The report ordered

under Article 46C.251 must be filed with the court as soon as

practicable before the hearing on disposition but not later than

the fourth day before that hearing.

(b) The report in general terms must describe and explain the

procedure, techniques, and tests used in the examination of the

person.

(c) The report must address:

(1) whether the acquitted person has a mental illness or mental

retardation and, if so, whether the mental illness or mental

retardation is severe;

(2) whether as a result of any severe mental illness or mental

retardation the acquitted person is likely to cause serious harm

to another;

(3) whether as a result of any impairment the acquitted person

is subject to commitment under Subtitle C or D, Title 7, Health

and Safety Code;

(4) prospective treatment and supervision options, if any,

appropriate for the acquitted person; and

(5) whether any required treatment and supervision can be safely

and effectively provided as outpatient or community-based

treatment and supervision.

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

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

Art. 46C.253. HEARING ON DISPOSITION. (a) The hearing on

disposition shall be conducted in the same manner as a hearing on

an application for involuntary commitment under Subtitle C or D,

Title 7, Health and Safety Code, except that the use of a jury is

governed by Article 46C.255.

(b) At the hearing, the court shall address:

(1) whether the person acquitted by reason of insanity has a

severe mental illness or mental retardation;

(2) whether as a result of any mental illness or mental

retardation the person is likely to cause serious harm to

another; and

(3) whether appropriate treatment and supervision for any mental

illness or mental retardation rendering the person dangerous to

another can be safely and effectively provided as outpatient or

community-based treatment and supervision.

(c) The court shall order the acquitted person committed for

inpatient treatment or residential care under Article 46C.256 if

the grounds required for that order are established.

(d) The court shall order the acquitted person to receive

outpatient or community-based treatment and supervision under

Article 46C.257 if the grounds required for that order are

established.

(e) The court shall order the acquitted person transferred to an

appropriate court for proceedings under Subtitle C or D, Title 7,

Health and Safety Code, if the state fails to establish the

grounds required for an order under Article 46C.256 or 46C.257

but the evidence provides a reasonable basis for believing the

acquitted person is a proper subject for those proceedings.

(f) The court shall order the acquitted person discharged and

immediately released if the evidence fails to establish that

disposition under Subsection (c), (d), or (e) is appropriate.

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

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

Art. 46C.254. EFFECT OF STABILIZATION ON TREATMENT REGIMEN. If

an acquitted person is stabilized on a treatment regimen,

including medication and other treatment modalities, rendering

the person no longer likely to cause serious harm to another,

inpatient treatment or residential care may be found necessary to

protect the safety of others only if:

(1) the person would become likely to cause serious harm to

another if the person fails to follow the treatment regimen on an

Order to Receive Outpatient or Community-Based Treatment and

Supervision; and

(2) under an Order to Receive Outpatient or Community-Based

Treatment and Supervision either:

(A) the person is likely to fail to comply with an available

regimen of outpatient or community-based treatment, as determined

by the person's insight into the need for medication, the number,

severity, and controllability of side effects, the availability

of support and treatment programs for the person from community

members, and other appropriate considerations; or

(B) a regimen of outpatient or community-based treatment will

not be available to the person.

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

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

Art. 46C.255. TRIAL BY JURY. (a) The following proceedings

under this chapter must be before the court, and the underlying

matter determined by the court, unless the acquitted person or

the state requests a jury trial or the court on its own motion

sets the matter for jury trial:

(1) a hearing under Article 46C.253;

(2) a proceeding for renewal of an order under Article 46C.261;

(3) a proceeding on a request for modification or revocation of

an order under Article 46C.266; and

(4) a proceeding seeking discharge of an acquitted person under

Article 46C.268.

(b) The following proceedings may not be held before a jury:

(1) a proceeding to determine outpatient or community-based

treatment and supervision under Article 46C.262; or

(2) a proceeding to determine modification or revocation of

outpatient or community-based treatment and supervision under

Article 46C.267.

(c) If a hearing is held before a jury and the jury determines

that the person has a mental illness or mental retardation and is

likely to cause serious harm to another, the court shall

determine whether inpatient treatment or residential care is

necessary to protect the safety of others.

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

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

Art. 46C.256. ORDER OF COMMITMENT TO INPATIENT TREATMENT OR

RESIDENTIAL CARE. (a) The court shall order the acquitted

person committed to a mental hospital or other appropriate

facility for inpatient treatment or residential care if the state

establishes by clear and convincing evidence that:

(1) the person has a severe mental illness or mental

retardation;

(2) the person, as a result of that mental illness or mental

retardation, is likely to cause serious bodily injury to another

if the person is not provided with treatment and supervision; and

(3) inpatient treatment or residential care is necessary to

protect the safety of others.

(b) In determining whether inpatient treatment or residential

care has been proved necessary, the court shall consider whether

the evidence shows both that:

(1) an adequate regimen of outpatient or community-based

treatment will be available to the person; and

(2) the person will follow that regimen.

(c) The order of commitment to inpatient treatment or

residential care expires on the 181st day following the date the

order is issued but is subject to renewal as provided by Article

46C.261.

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

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

Art. 46C.257. ORDER TO RECEIVE OUTPATIENT OR COMMUNITY-BASED

TREATMENT AND SUPERVISION. (a) The court shall order the

acquitted person to receive outpatient or community-based

treatment and supervision if:

(1) the state establishes by clear and convincing evidence that

the person:

(A) has a severe mental illness or mental retardation; and

(B) as a result of that mental illness or mental retardation is

likely to cause serious bodily injury to another if the person is

not provided with treatment and supervision; and

(2) the state fails to establish by clear and convincing

evidence that inpatient treatment or residential care is

necessary to protect the safety of others.

(b) The order of commitment to outpatient or community-based

treatment and supervision expires on the first anniversary of the

date the order is issued but is subject to renewal as provided by

Article 46C.261.

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

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

Art. 46C.258. RESPONSIBILITY OF INPATIENT OR RESIDENTIAL CARE

FACILITY. (a) The head of the facility to which an acquitted

person is committed has, during the commitment period, a

continuing responsibility to determine:

(1) whether the acquitted person continues to have a severe

mental illness or mental retardation and is likely to cause

serious harm to another because of any severe mental illness or

mental retardation; and

(2) if so, whether treatment and supervision cannot be safely

and effectively provided as outpatient or community-based

treatment and supervision.

(b) The head of the facility must notify the committing court

and seek modification of the order of commitment if the head of

the facility determines that an acquitted person no longer has a

severe mental illness or mental retardation, is no longer likely

to cause serious harm to another, or that treatment and

supervision can be safely and effectively provided as outpatient

or community-based treatment and supervision.

(c) Not later than the 60th day before the date of expiration of

the order, the head of the facility shall transmit to the

committing court a psychological evaluation of the acquitted

person, a certificate of medical examination of the person, and

any recommendation for further treatment of the person. The

committing court shall make the documents available to the

attorneys representing the state and the acquitted person.

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

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

Art. 46C.259. STATUS OF COMMITTED PERSON. If an acquitted

person is committed under this subchapter, the person's status as

a patient or resident is governed by Subtitle C or D, Title 7,

Health and Safety Code, except that:

(1) transfer to a nonsecure unit is governed by Article 46C.260;

(2) modification of the order to direct outpatient or

community-based treatment and supervision is governed by Article

46C.262; and

(3) discharge is governed by Article 46C.268.

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

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

Art. 46C.260. TRANSFER OF COMMITTED PERSON TO NONSECURE

FACILITY. (a) A person committed to a facility under this

subchapter shall be committed to the maximum security unit of any

facility designated by the department.

(b) A person committed under this subchapter shall be

transferred to the maximum security unit immediately on the entry

of the order of commitment.

(c) Unless the person is determined to be manifestly dangerous

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

day following the date of the person's arrival at the maximum

security unit the person shall be transferred to a nonsecure unit

of a facility designated by the department or the Department of

Aging and Disability Services, as appropriate.

(d) The commissioner 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 illnesses or with 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.

(e) If the head of the facility at which the maximum security

unit is located disagrees with the determination, then the matter

shall be referred to the commissioner. The commissioner shall

decide whether the person is manifestly dangerous.

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

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

Art. 46C.261. RENEWAL OF ORDERS FOR INPATIENT COMMITMENT OR

OUTPATIENT OR COMMUNITY-BASED TREATMENT AND SUPERVISION. (a) A

court that orders an acquitted person committed to inpatient

treatment or orders outpatient or community-based treatment and

supervision annually shall determine whether to renew the order.

(b) Not later than the 30th day before the date an order is

scheduled to expire, the institution to which a person is

committed, the person responsible for providing outpatient or

community-based treatment and supervision, or the attorney

representing the state may file a request that the order be

renewed. The request must explain in detail the reasons why the

person requests renewal under this article. A request to renew

an order committing the person to inpatient treatment must also

explain in detail why outpatient or community-based treatment and

supervision is not appropriate.

(c) The request for renewal must be accompanied by a certificate

of medical examination for mental illness signed by a physician

who examined the person during the 30-day period preceding the

date on which the request is filed.

(d) On the filing of a request for renewal under this article,

the court shall:

(1) set the matter for a hearing; and

(2) appoint an attorney to represent the person.

(e) The court shall act on the request for renewal before the

order expires.

(f) If a hearing is held, the person may be transferred from the

facility to which the acquitted person was committed to a jail

for purposes of participating in the hearing only if necessary

but not earlier than 72 hours before the hearing begins. If the

order is renewed, the person shall be transferred back to the

facility immediately on renewal of the order.

(g) If no objection is made, the court may admit into evidence

the certificate of medical examination for mental illness.

Admitted certificates constitute competent medical or psychiatric

testimony, and the court may make its findings solely from the

certificate and the detailed request for renewal.

(h) A court shall renew the order only if the court finds that

the party who requested the renewal has established by clear and

convincing evidence that continued mandatory supervision and

treatment are appropriate. A renewed order authorizes continued

inpatient commitment or outpatient or community-based treatment

and supervision for not more than one year.

(i) The court, on application for renewal of an order for

inpatient or residential care services, may modify the order to

provide for outpatient or community-based treatment and

supervision if the court finds the acquitted person has

established by a preponderance of the evidence that treatment and

supervision can be safely and effectively provided as outpatient

or community-based treatment and supervision.

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

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

Art. 46C.262. COURT-ORDERED OUTPATIENT OR COMMUNITY-BASED

TREATMENT AND SUPERVISION AFTER INPATIENT COMMITMENT. (a) An

acquitted person, the head of the facility to which the acquitted

person is committed, or the attorney representing the state may

request that the court modify an order for inpatient treatment or

residential care to order outpatient or community-based treatment

and supervision.

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

of the facility to which the acquitted person is committed. A

hearing under this subsection must be held not later than the

14th day after the date of the request.

(c) If a request is made by an acquitted person or the attorney

representing the state, the court must act on the request not

later than the 14th day after the date of the request. A hearing

under this subsection is at the discretion of the court, except

that the court shall hold a hearing if the request and any

accompanying material provide a basis for believing modification

of the order may be appropriate.

(d) If a request is made by an acquitted person not later than

the 90th day after the date of a hearing on a previous request,

the court is not required to act on the request except on the

expiration of the order or on the expiration of the 90-day period

following the date of the hearing on the previous request.

(e) The court shall rule on the request during or as soon as

practicable after any hearing on the request but not later than

the 14th day after the date of the request.

(f) The court shall modify the commitment order to direct

outpatient or community-based treatment and supervision if at the

hearing the acquitted person establishes by a preponderance of

the evidence that treatment and supervision can be safely and

effectively provided as outpatient or community-based treatment

and supervision.

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

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

Art. 46C.263. COURT-ORDERED OUTPATIENT OR COMMUNITY-BASED

TREATMENT AND SUPERVISION. (a) The court may order an acquitted

person to participate in an outpatient or community-based regimen

of treatment and supervision:

(1) as an initial matter under Article 46C.253;

(2) on renewal of an order of commitment under Article 46C.261;

or

(3) after a period of inpatient treatment or residential care

under Article 46C.262.

(b) An acquitted person may be ordered to participate in an

outpatient or community-based regimen of treatment and

supervision only if:

(1) the court receives and approves an outpatient or

community-based treatment plan that comprehensively provides for

the outpatient or community-based treatment and supervision; and

(2) the court finds that the outpatient or community-based

treatment and supervision provided for by the plan will be

available to and provided to the acquitted person.

(c) The order may require the person to participate in a

prescribed regimen of medical, psychiatric, or psychological care

or treatment, and the regimen may include treatment with

psychoactive medication.

(d) The court may order that supervision of the acquitted person

be provided by the appropriate community supervision and

corrections department or the facility administrator of a

community center that provides mental health or mental

retardation services.

(e) The court may order the acquitted person to participate in a

supervision program funded by the Texas Correctional Office on

Offenders with Medical or Mental Impairments.

(f) An order under this article must identify the person

responsible for administering an ordered regimen of outpatient or

community-based treatment and supervision.

(g) In determining whether an acquitted person should be ordered

to receive outpatient or community-based treatment and

supervision rather than inpatient care or residential treatment,

the court shall have as its primary concern the protection of

society.

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

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

Art. 46C.264. LOCATION OF COURT-ORDERED OUTPATIENT OR

COMMUNITY-BASED TREATMENT AND SUPERVISION. (a) The court may

order the outpatient or community-based treatment and supervision

to be provided in any appropriate county where the necessary

resources are available.

(b) This article does not supersede any requirement under the

other provisions of this subchapter to obtain the consent of a

treatment and supervision provider to administer the

court-ordered outpatient or community-based treatment and

supervision.

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

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

Art. 46C.265. SUPERVISORY RESPONSIBILITY FOR OUTPATIENT OR

COMMUNITY-BASED TREATMENT AND SUPERVISION. (a) The person

responsible for administering a regimen of outpatient or

community-based treatment and supervision shall:

(1) monitor the condition of the acquitted person; and

(2) determine whether the acquitted person is complying with the

regimen of treatment and supervision.

(b) The person responsible for administering a regimen of

outpatient or community-based treatment and supervision shall

notify the court ordering that treatment and supervision and the

attorney representing the state if the person:

(1) fails to comply with the regimen; and

(2) becomes likely to cause serious harm to another.

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

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

Art. 46C.266. MODIFICATION OR REVOCATION OF ORDER FOR OUTPATIENT

OR COMMUNITY-BASED TREATMENT AND SUPERVISION. (a) The court, on

its own motion or the motion of any interested person and after

notice to the acquitted person and a hearing, may modify or

revoke court-ordered outpatient or community-based treatment and

supervision.

(b) At the hearing, the court without a jury shall determine

whether the state has established clear and convincing evidence

that:

(1) the acquitted person failed to comply with the regimen in a

manner or under circumstances indicating the person will become

likely to cause serious harm to another if the person is provided

continued outpatient or community-based treatment and

supervision; or

(2) the acquitted person has become likely to cause serious harm

to another if provided continued outpatient or community-based

treatment and supervision.

(c) On a determination under Subsection (b), the court may take

any appropriate action, including:

(1) revoking court-ordered outpatient or community-based

treatment and supervision and ordering the person committed for

inpatient or residential care; or

(2) imposing additional or more stringent terms on continued

outpatient or community-based treatment.

(d) An acquitted person who is the subject of a proceeding under

this article is entitled to representation by counsel in the

proceeding.

(e) The court shall set a date for a hearing under this article

that is not later than the seventh day after the applicable

motion was filed. The court may grant one or more continuances

of the hearing on the motion of a party or of the court and for

good cause shown.

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

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

Art. 46C.267. DETENTION PENDING PROCEEDINGS TO MODIFY OR REVOKE

ORDER FOR OUTPATIENT OR COMMUNITY-BASED TREATMENT AND

SUPERVISION. (a) The state or the head of the facility or other

person responsible for administering a regimen of outpatient or

community-based treatment and supervision may file a sworn

application with the court for the detention of an acquitted

person receiving court-ordered outpatient or community-based

treatment and supervision. The application must state that the

person meets the criteria of Article 46C.266 and provide a

detailed explanation of that statement.

(b) If the court determines that the application establishes

probable cause to believe the order for outpatient or

community-based treatment and supervision should be revoked, the

court shall issue an order to an on-duty peace officer

authorizing the acquitted person to be taken into custody and

brought before the court.

(c) An acquitted person taken into custody under an order of

detention shall be brought before the court without unnecessary

delay.

(d) When an acquitted person is brought before the court, the

court shall determine whether there is probable cause to believe

that the order for outpatient or community-based treatment and

supervision should be revoked. On a finding that probable cause

for revocation exists, the court shall order the person held in

protective custody pending a determination of whether the order

should be revoked.

(e) An acquitted person may be detained under an order for

protective custody for a period not to exceed 72 hours, excluding

Saturdays, Sundays, legal holidays, and the period prescribed by

Section 574.025(b), Health and Safety Code, for an extreme

emergency.

(f) This subchapter does not affect the power of a peace officer

to take an acquitted person into custody under Section 573.001,

Health and Safety Code.

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

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

Art. 46C.268. ADVANCE DISCHARGE OF ACQUITTED PERSON AND

TERMINATION OF JURISDICTION. (a) An acquitted person, the head

of the facility to which the acquitted person is committed, the

person responsible for providing the outpatient or

community-based treatment and supervision, or the state may

request that the court discharge an acquitted person from

inpatient commitment or outpatient or community-based treatment

and supervision.

(b) Not later than the 14th day after the date of the request,

the court shall hold a hearing on a request made by the head of

the facility to which the acquitted person is committed or the

person responsible for providing the outpatient or

community-based treatment and supervision.

(c) If a request is made by an acquitted person, the court must

act on the request not later than the 14th day after the date of

the request. A hearing under this subsection is at the

discretion of the court, except that the court shall hold a

hearing if the request and any accompanying material indicate

that modification of the order may be appropriate.

(d) If a request is made by an acquitted person not later than

the 90th day after the date of a hearing on a previous request,

the court is not required to act on the request except on the

expiration of the order or on the expiration of the 90-day period

following the date of the hearing on the previous request.

(e) The court shall rule on the request during or shortly after

any hearing that is held and in any case not later than the 14th

day after the date of the request.

(f) The court shall discharge the acquitted person from all

court-ordered commitment and treatment and supervision and

terminate the court's jurisdiction over the person if the court

finds that the acquitted person has established by a

preponderance of the evidence that:

(1) the acquitted person does not have a severe mental illness

or mental retardation; or

(2) the acquitted person is not likely to cause serious harm to

another because of any severe mental illness or mental

retardation.

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

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

Art. 46C.269. TERMINATION OF COURT'S JURISDICTION. (a) The

jurisdiction of the court over a person covered by this

subchapter automatically terminates on the date when the

cumulative total period of institutionalization and outpatient or

community-based treatment and supervision imposed under this

subchapter equals the maximum term of imprisonment provided by

law for the offense of which the person was acquitted by reason

of insanity.

(b) On the termination of the court's jurisdiction under this

article, the person must be discharged from any inpatient

treatment or residential care or outpatient or community-based

treatment and supervision ordered under this subchapter.

(c) An inpatient or residential care facility to which a person

has been committed under this subchapter or a person responsible

for administering a regimen of outpatient or community-based

treatment and supervision under this subchapter must notify the

court not later than the 30th day before the court's jurisdiction

over the person ends under this article.

(d) This subchapter does not affect whether a person may be

ordered to receive care or treatment under Subtitle C or D, Title

7, Health and Safety Code.

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

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

Art. 46C.270. APPEALS. (a) An acquitted person may appeal a

judgment reflecting an acquittal by reason of insanity on the

basis of the following:

(1) a finding that the acquitted person committed the offense;

or

(2) a finding that the offense on which the prosecution was

based involved conduct that:

(A) caused serious bodily injury to another person;

(B) placed another person in imminent danger of serious bodily

injury; or

(C) consisted of a threat of serious bodily injury to another

person through the use of a deadly weapon.

(b) Either the acquitted person or the state may appeal from:

(1) an Order of Commitment to Inpatient Treatment or Residential

Care entered under Article 46C.256;

(2) an Order to Receive Outpatient or Community-Based Treatment

and Supervision entered under Article 46C.257 or 46C.262;

(3) an order renewing or refusing to renew an Order for

Inpatient Commitment or Outpatient or Community-Based Treatment

and Supervision entered under Article 46C.261;

(4) an order modifying or revoking an Order for Outpatient or

Community-Based Treatment and Supervision entered under Article

46C.266 or refusing a request to modify or revoke that order; or

(5) an order discharging an acquitted person under Article

46C.268 or denying a request for discharge of an acquitted

person.

(c) An appeal under this subchapter may not be considered moot

solely due to the expiration of an order on which the appeal is

based.

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

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