CHAPTER 46. INSANITY AS DEFENSE

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CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 46. INSANITY AS DEFENSE

Text of article as repealed by Acts 2005, 79th Leg., R.S., Ch.

831, Sec. 1 effective September 1, 2005

Art. 46.03. INSANITY DEFENSE.

Disposition Following Acquittal by Reason of Insanity

Sec. 4.

(d) Act, Attempt, or Threat of Serious Bodily Injury; Special

Commitment; Out-patient Supervision; Recommitment.

Text of subdivision as added by Acts 2005, 79th Leg., R.S., Ch.

485, Sec. 1

(8) Victim Notification of Release. If the court issues an

order under Subdivision (4) or (5) that requires the release of

an acquitted person on discharge or on a regimen of outpatient

care, the clerk of the court issuing the order, using the

information provided on any victim impact statement received by

the court under Article 56.03 or other information made available

to the court, shall provide name, address, and phone number

information to the Texas Department of Criminal Justice victim

services division to enable the division to notify the victim or

the victim's guardian or close relative of the release. The

victim services division shall notify any victim or guardian or

close relative named in the victim impact statement or other

information. Notwithstanding Article 56.03(f), the clerk of the

court may inspect a victim impact statement for the purpose of

notification under this subdivision.

Added by Acts 1975, 64th Leg., p. 1100, ch. 415, Sec. 2, eff.

June 19, 1975. Amended by Acts 1977, 65th Leg., p. 1467, ch. 596,

Sec. 2, eff. Sept. 1, 1977.

Secs. 1, 4 amended by Acts 1983, 68th Leg., p. 2640, ch. 454,

Sec. 2, 3, eff. Aug. 29, 1983; Sec. 3(d) amended by Acts 1989,

71st Leg., ch. 393, Sec. 7, eff. June 14, 1989; Sec. 4(b) amended

by Acts 1989, 71st Leg., ch. 393, Sec. 8, eff. June 14, 1989;

Sec. 4(d)(1) amended by Acts 1989, 71st Leg., ch. 393, Sec. 9,

eff. June 14, 1989; Sec. 4(d)(1) amended by Acts 2001, 77th Leg.,

ch. 985, Sec. 1, eff. Sept. 1, 2001; Sec. 3(g) amended by Acts

2003, 78th Leg., ch. 35, Sec. 5, eff. Jan. 1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

485, Sec. 1, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch.

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

Art. 46.04. TRANSPORTATION TO A MENTAL HEALTH FACILITY OR

RESIDENTIAL CARE FACILITY.

Persons Accompanying Transport

Sec. 1. (a) A patient transported from a jail or detention

facility to a mental health facility or a residential care

facility shall be transported by a special officer for mental

health assignment certified under Section 1701.404, Occupations

Code, or by a sheriff or constable.

(b) The court ordering the transport shall require appropriate

medical personnel to accompany the person transporting the

patient, at the expense of the county from which the patient is

transported, if there is reasonable cause to believe the patient

will require medical assistance or will require the

administration of medication during the transportation.

Requirements for Transport

Sec. 2. The transportation of a patient from a jail or detention

facility to a mental health facility or residential care facility

must meet the following requirements:

(1) the patient must be transported directly to the facility

within a reasonable amount of time and without undue delay;

(2) a vehicle used to transport the patient must be adequately

heated in cold weather and adequately ventilated in warm weather;

(3) a special diet or other medical precautions recommended by

the patient's physician must be followed;

(4) the person transporting the patient shall give the patient

reasonable opportunities to get food and water and to use a

bathroom; and

(5) the patient may not be transported with a state prisoner.

Added by Acts 1999, 76th Leg., ch. 1512, Sec. 6, eff. Sept. 1,

1999. Sec. 1(a) amended by Acts 2001, 77th Leg., ch. 1420, Sec.

14.736, eff. Sept. 1, 2001.

Art. 46.05. COMPETENCY TO BE EXECUTED. (a) A person who is

incompetent to be executed may not be executed.

(b) The trial court retains jurisdiction over motions filed by or

for a defendant under this article.

proceeding in which the defendant was convicted, give the date of

the final judgment, set forth the fact that an execution date has

been set if the date has been set, and clearly set forth alleged

facts in support of the assertion that the defendant is presently

incompetent to be executed. The defendant shall attach

affidavits, records, or other evidence supporting the defendant's

allegations or shall state why those items are not attached. The

defendant shall identify any previous proceedings in which the

defendant challenged the defendant's competency in relation to

the conviction and sentence in question, including any challenge

to the defendant's competency to be executed, competency to stand

trial, or sanity at the time of the offense. The motion must be

verified by the oath of some person on the defendant's behalf.

(d) On receipt of a motion filed under this article, the trial

court shall determine whether the defendant has raised a

substantial doubt of the defendant's competency to be executed on

the basis of:

(1) the motion, any attached documents, and any responsive

pleadings; and

(2) if applicable, the presumption of competency under Subsection

(e).

(e) If a defendant is determined to have previously filed a

motion under this article, and has previously been determined to

be competent to be executed, the previous adjudication creates a

presumption of competency and the defendant is not entitled to a

hearing on the subsequent motion filed under this article, unless

the defendant makes a prima facie showing of a substantial change

in circumstances sufficient to raise a significant question as to

the defendant's competency to be executed at the time of filing

the subsequent motion under this article.

(f) If the trial court determines that the defendant has made a

substantial showing of incompetency, the court shall order at

least two mental health experts to examine the defendant using

the standard described by Subsection (h) to determine whether the

defendant is incompetent to be executed.

(g) If the trial court does not determine that the defendant has

made a substantial showing of incompetency, the court shall deny

the motion and may set an execution date as otherwise provided by

law.

(h) A defendant is incompetent to be executed if the defendant

does not understand:

(1) that he or she is to be executed and that the execution is

imminent; and

(2) the reason he or she is being executed.

(i) Mental health experts who examine a defendant under this

article shall provide within a time ordered by the trial court

copies of their reports to the attorney representing the state,

the attorney representing the defendant, and the court.

(j) By filing a motion under this article, the defendant waives

any claim of privilege with respect to, and consents to the

release of, all mental health and medical records relevant to

whether the defendant is incompetent to be executed.

(k) The trial court shall determine whether, on the basis of

reports provided under Subsection (i), the motion, any attached

documents, any responsive pleadings, and any evidence introduced

in the final competency hearing, the defendant has established by

a preponderance of the evidence that the defendant is incompetent

to be executed. If the court makes a finding that the defendant

is not incompetent to be executed, the court may set an execution

date as otherwise provided by law.

(l) Following the trial court's determination under Subsection

(k) and on motion of a party, the clerk shall send immediately to

the court of criminal appeals in accordance with Section 8(d),

Article 11.071, the appropriate documents for that court's review

and entry of a judgment of whether to adopt the trial court's

order, findings, or recommendations issued under Subsection (g)

or (k). The court of criminal appeals also shall determine

whether any existing execution date should be withdrawn and a

stay of execution issued while that court is conducting its

review or, if a stay is not issued during the review, after entry

of its judgment.

(l-1) Notwithstanding Subsection (l), the court of criminal

appeals may not review any finding of the defendant's competency

made by a trial court as a result of a motion filed under this

article if the motion is filed on or after the 20th day before

the defendant's scheduled execution date.

(m) If a stay of execution is issued by the court of criminal

appeals, the trial court periodically shall order that the

defendant be reexamined by mental health experts to determine

whether the defendant is no longer incompetent to be executed.

(n) If the court of criminal appeals enters a judgment that a

defendant is not incompetent to be executed, the court may

withdraw any stay of execution issued under Subsection (l), and

the trial court may set an execution date as otherwise provided

by law.

Added by Acts 1999, 76th Leg., ch. 654, Sec. 1, eff. Sept. 1,

1999. Renumbered from Vernon's Ann. C.C.P. art. 46.04 by Acts

2001, 77th Leg., ch. 1420, Sec. 21.001(13), eff. Sept. 1, 2001.

Amended by:

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

677, Sec. 1, eff. September 1, 2007.

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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