36-3714. Petition for discharge;
procedures
A. If the superintendent of the state hospital or the director of the department of
health services determines that the person's mental disorder has so changed that the
person is not likely to engage in acts of sexual violence if discharged, the
superintendent or director shall allow the person to petition the court for
discharge. The person shall serve the petition on the court and the attorney for the
state. The court shall hold a hearing on the petition for discharge within forty-five
days after receiving the petition. The court may continue the hearing on the request of
either party and a showing of good cause or on its own motion if the respondent will not
be substantially prejudiced. The county attorney or the attorney general shall represent
the state at the hearing and may request that the petitioner be examined by a competent
professional who is selected by the county attorney or the attorney general. The
attorney for the state has the burden of proving beyond a reasonable doubt that the
petitioner's mental disorder has not changed and that the petitioner remains a danger to
others and is likely to engage in acts of sexual violence if discharged.
B. This section does not prohibit the committed person from annually petitioning
the court for discharge without the approval of the superintendent of the state hospital
or the director of the department of health services. The director of the department of
health services shall give annual written notice to the committed person of the person's
right to petition the court for discharge without the approval of the superintendent or
director. The notice shall contain a waiver of rights. The director shall submit the
notice and waiver to the court with the annual examination report.
C. The committed person may be present at the discharge hearing. The county
attorney or the attorney general may request that the person be examined by a competent
professional who is selected by the attorney for the state. The committed person may
retain and the court on the request of an indigent person may appoint a competent
professional. The attorney for the state has the burden of proving beyond a reasonable
doubt that the person's mental disorder has not changed and that the person remains a
danger to others and is likely to engage in acts of sexual violence if discharged. If
the state does not meet its burden of proof, the person shall be discharged from
treatment.
D. If a person is discharged the department of health services shall notify the
department of public safety of the person's discharge so that the department of public
safety can commence any notification process as provided in section 13-3825.
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