Joint Committee on Access and Forensic Services Presentation on the Forensic System Presenter: Kerry Raymond, LCSW Assistant Director of State Hospitals Section (SHS) December 15, 2015

Forensic Services The term “forensic” applies to persons acquitted not guilty by reason of insanity (NGRI) or found incompetent to stand trial (IST)

NOT GUILTY BY REASON OF INSANITY

Not Guilty by Reason of Insanity (NGRI) aka 46C Insanity [Texas Penal Code, Sec. 8.01] An affirmative defense to prosecution that, at the time of the conduct charged, the defendant, as a result of severe mental disease or defect, did not know that his/her conduct was legally or morally wrong The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct Burden of proof = preponderance of evidence Chapter 46C of the Texas Code of Criminal Procedure

RAISING THE INSANITY DEFENSE

Notice of Intent Attorney for the defendant must file with the court a notice of intent* to offer evidence of the insanity defense at least 20 days before the date the case is set for trial, except: if before the 20th day period the court sets a pretrial hearing then notice of intent can be given at the hearing [46C.051] No trial is needed if all parties agree to dismissal of the indictment on the ground the defendant was insane [46C.153] *If notice is not provided within the timeframe allowed, then evidence on the insanity defense is not admissible unless court finds good cause exists for failure to give notice

Informing Juries A juror, or prospective juror, may not be informed of the consequences to the defendant if a verdict of NGRI is returned* [46C.154] *Applies to the court and prosecuting and defense attorneys

EXAMINATION

Expert Role & Responsibilities Qualified psychiatrist or psychologist [46C.102] Same expert may be appointed to examine the defendant with regard to his/her competency to stand trial under Chapter 46B of the Texas Code of Criminal Procedure* [46C.103] Expert may not examine the defendant for purposes of determining his/her sanity and may not file a report regarding his/her sanity if, in the expert’s opinion, he/she is incompetent to proceed Report due 30 days from date of evaluation order [46C.105] *Expert must file separate written reports concerning the defendant's competency to stand trial and the insanity defense

FINDING OF ngri

Finding of NGRI Defendants found NGRI are acquitted of the offense charged and may not be considered a person charged with an offense [46C.155]

Dangerous/NonDangerous Conduct Immediately following an NGRI acquittal, the court must determine whether the offense of which the person was acquitted involved conduct that: caused serious bodily injury (SBI) to another person; placed another person in imminent danger of SBI; or consisted of a threat of SBI through the use of a deadly weapon [46C.157] Court retains jurisdiction if there is a finding of dangerous conduct until either: court discharges the person and terminates jurisdiction; or cumulative total period of institutionalization and outpatient treatment equals the maximum term for the offense of which the person was acquitted [46C.269]

Dangerous/NonDangerous Conduct Disposition Person committed for evaluation of present mental condition and treatment to maximum security unit (MSU) for a period not to exceed 30 days Court must hold a hearing on disposition no later than the 30th day after the date of acquittal Subchapter E “Disposition Following Acquittal by Reason of Insanity: No Finding of Dangerous Conduct” [46C.201]. Court determines if there is evidence of mental illness (MI) or intellectual or developmental disability (IDD) Evidence of MI or IDD Case transferred to civil court for civil commitment proceedings* *Court may also order detainment in jail or any other suitable place pending prompt initiation and prosecution of appropriate civil proceedings by the state attorney, or placement in the care of a responsible person on satisfactory security being given for the acquitted person’s proper care and protection [46C.201]

Commitment to Inpatient or Residential Care Court shall commit a person to inpatient or residential care if [46C.256]: he/she has severe MI or IDD; as a result, he/she is likely to cause SBI to another if not treated and supervised; and inpatient treatment or residential care is needed to protect the public Order of commitment expires on the 181st day following date the order is issued Court shall determine annually whether to renew order [46C.261] requires evidence that continued mandatory supervision and treatment are appropriate Renewed orders are for no more than one year orders may be modified to outpatient* *Determined by court. Acquitted person must establish by a preponderance of the evidence that treatment & supervision can be safely & effectively provided in an outpatient setting

NGRI: Maximum Period of Commitment Persons acquitted NGRI cannot be committed to a mental health or residential care facility, or to outpatient programming for a cumulative period that exceeds the maximum term for the offense for which the person was tried and acquitted* [46C.002] *Upon expiration of the maximum term, the acquitted person may be further confined but only under civil commitment proceedings

INCOMPETENCY TO STAND TRIAL

Incompetent to Stand Trial (IST) aka 46B Chapter 46B of the Texas Code of Criminal Procedure A person is IST if he/she does not have: sufficient present ability to consult with his/her lawyer with a reasonable degree of rational understanding; or a rational, as well as factual understanding of the proceedings against him/her [46B.003(a)] Applies to defendants charged with a felony or misdemeanor punishable by confinement [46B.002]

RAISING THE ISSUE OF COMPETENCY

Competency issue raised by prosecuting attorney, defense attorney, or the court on its own motion* [46B.004] Court conducts informal inquiry [46B.004(c)] *Issue of competency can be raised at any stage of the court proceedings, and prosecuting attorney can request charges be dropped at any time. The decision to drop charges is up to the court

Informal Inquiry No Evidence of Incompetency Evidence of Incompetency Resume criminal proceedings Finding of competency Court orders examination ‘Qualified’ expert [46B.021] Factors considered [46B.024] Report due in 30 days [46B.025/6] Competency hearing* Judge or Jury** [46B.005(c),46B.051] Burden of proof = preponderance of evidence [46B.003(b)] *No hearing required if finding of incompetency is not opposed **If a jury trial, the jury used to determine competency cannot be the same jury that determines a defendant’s guilt or innocence

EXAMINATION

Expert Role & Responsibilities Qualified psychiatrist or psychologist* [46B.022] Cannot be involved in treatment of defendant Must provide an opinion on competency or incompetency to stand trial Must include reasons to support decision Report due 30 days from date of evaluation order [46B.025] *Defendant has the right to request his/her own expert. Court must provide the expert reasonable opportunity to conduct examination

Expert Considerations Does defendant have: a rational understanding of charges; an understanding of potential consequences of criminal proceedings; an ability to understand adversarial nature of proceedings; an ability to work with counsel about important facts, events, legal strategies and options, etc.; an ability to behave appropriately in courtroom; an ability to testify (if desired); and a diagnosable MI or IDD. If yes: what is degree of impairment as a result of MI or IDD; and is defendant taking psychoactive or other medication/s [46B.024]

Determination of Incompetency Commit to Outpatient [46B.072] Commit to Inpatient [46B.073(b) & (d)] [not charged with an Article 17.032(a) offense] Length of stay: Up to 120 days Purpose = to attain competency Court may order if: defendant is not dangerous; treatment plan is approved; and treatment is available Mental health facility, i.e. state hospital (SH), or residential care facility, i.e. state supported living center (SSLC) Purpose = to attain competency Length of stay: misdemeanor = up to 60 days felony = up to 120 days one 60 day extension allowed* [46B.079(d) and 46B.080] Sheriff responsible for transport *One 60 day extension allowed IF defendant/patient has not achieved competency by the expiration of commitment but treatment team believes competency is achievable within another 60 days

Maximum Security Unit (MSU) Article 17.032(a) specified offenses, i.e. violent offenses, must go to MSU murder [Section 19.02]; capital murder [Section 19.03]; kidnapping [Section 20.03]; aggravated kidnapping [Section 20.04]; indecency with a child [Section 21.11]; sexual assault [Section 22.011]; aggravated assault [Section 22.02]; aggravated sexual assault [Section 22.021]; injury to a child, elderly individual, or disabled individual [Section 22.04]; aggravated robbery [Section 29.03]; continuous sexual abuse of young child or children [Section 21.02]; or continuous trafficking of persons [Section 20A.03]

Restoration Commitment* Treatment team must** [46B.077(a)]: Develop individual treatment plan Assess whether competency is attainable in the foreseeable future Report to court and local mental health authority (LMHA) or local intellectual and developmental disability authority (LIDDA) on progress toward competency *Applies to inpatient (MI and IDD) and outpatient facilities **Treatment teams do not provide legal advise, nor do they determine guilt or innocence

Notice to Court* Head of facility must provide notice to court when: Competency attained [46B.079(b)(1)] Competency not achievable in foreseeable future [46B.079(b)(2)] Term of commitment set to expire (>15 days) [46B.079(a)] If criteria for civil commitment met: two certificates of medical examination (CME) for MI or IDD diagnosis [46B.083(a)/(b)] Final report [46B.079(c)] *Applies to inpatient (MH and IDD) and outpatient

Final Report* Final report must include [46B.079(c)]: Reason/s for discharge List of type/s and dosage/s of medication during treatment *Applies to inpatient (MH and IDD) and outpatient

Post Competency Restoration Return to court within 15 days of notice* Court must make a determination of competency within 20 days of receiving final report [46B.084(a)] If found competent, criminal proceedings resume If found incompetent, charges may or may not be dismissed *If not returned to court within 15 days, the facility shall return defendant and charge the county for costs [46B.082(b)]

Charges Not Dismissed [46B.084(e)] Civil Commitment Charges Not Dismissed [46B.084(e)] Charges Dismissed [46B.084(f)] Court determines if there is evidence of MI or IDD [46B.102(a); 46B.103(a)] Subchapter E “Civil Commitment – Charges Pending”: Court conducts commitment hearing for MI [46B.102(b)]; for IDD [46B.103(b)] Court determines if there is evidence of MI or IDD [46B.084(f); 46B.151] Evidence of MI or IDD* Case transferred to civil court for commitment proceedings [46B.151(b)] *If no evidence, defendant must be released [46B.151(d)]

Civil Commitment Procedures Subchapter E Charged with Article 17.032(a) Specified Offense Not Charged with Specified Offense [46B.106] Defendant committed initially to MSU [46B.104] Unless determined manifestly dangerous (MD), defendant transferred to non-MSU DSHS facility w/in 60 days [46B.105(a)(1)] or SSLC [46B.102(a)(2)] Defendant committed to a non-MSU DSHS facility, SSLC, or available outpatient program

Redetermination of Competency* Competency Not Contested [46B.112] Competency Contested [46B.113] Resume criminal proceedings Finding of competency Competency hearing* Finding of incompetency Court remands defendant back to appropriate facility [46B.117] *Competency is presumed if head of facility submits opinion; presumption must be overcome at hearing by preponderance of the evidence [46B.113]

Time Credits Time spent in a SH, SSLC, or jail is deducted from the sentence if defendant is convicted of the offense [46B.009] Time spent in a SH, SSLC, or jail cannot be more than time spent in jail and/or prison if convicted of charges, unless: charged with a misdemeanor and ordered to outpatient programming

Restoration Services Competency restoration services include: definitions of important persons in the courtroom; definitions of important legal terms; instructions on how to behave in the courtroom; instructions on how to effectively work with counsel; information about court-ordered medications; information about rights as a forensic patient; and explanation of criminal charges and potential consequences, such as: classifications, e.g., misdemeanor or felony possible pleas, e.g., not guilty, guilty, NGRI plea bargaining and probation

State Hospitals Section Contact Information Kerry Raymond, LCSW Assistant Director State Hospitals Section (SHS) Department of State Health Services (DSHS) Email: kerry.raymond@dshs.state.tx.us Office: (512) 206-5196