HBA-SEB H.B. 50 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 50 By: Cuellar Corrections 3/29/1999 Introduced BACKGROUND AND PURPOSE Current law does not provide for the civil commitment of sexually violent predators. A sexually violent predator is a person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in a predatory act of sexual violence if the person is not confined in a secure correctional facility. H.B. 50 calls for a hearing to determine if a person is a sexually violent predator, and if probable cause is determined to exist to that effect, H.B. 50 requires a judge to commit the person to the custody of the commissioner of mental health and mental retardation until the person is deemed safe to be at large and unlikely to engage in a predatory act of sexual violence. H.B. 50 also provides for an annual review of the committed person's status by the judge. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Title 4, Government Code, by adding Subtitle H, as follows: SUBTITLE H. CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS CHAPTER 521. CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS SUBCHAPTER A. GENERAL PROVISIONS Sec. 521.001. DEFINITIONS. Defines "commissioner," "department," "mental abnormality," "predatory act," "secure correctional facility," "sexually violent offense," and "sexually violent predator." Sec. 521.002. APPLICATION. Provides that a committed person is not prohibited from petitioning for release under this chapter. SUBCHAPTER B. NOTICE OF APPARENT PREDATOR; INITIAL DETERMINATION Sec. 521.021. NOTICE OF APPARENT PREDATOR. (a) Requires the Texas Department of Criminal Justice to give written notice to the attorney general and the multidisciplinary team established in Section 521.022 of the anticipated release of a person serving a sentence for a sexually violent offense or an offense for which the judgment contains an affirmative finding under Article 42.015, Code of Criminal Procedure (Finding of Sexual Motivation), as added by this Act, and who appears to be suffering from an abnormality or disorder described under Section 521.001(7)(B) (describing a sexually violent predator). (b) Requires the Texas Department of Mental Health and Mental Retardation (MHMR) to give written notice to the attorney general and the multidisciplinary team of the anticipated discharge of a person committed to the MHMR after having been charged with a sexually violent offense and found incompetent to stand trial, or having been found not guilty of a sexually violent offense by reason of insanity, or charged with an offense for which an affirmative finding is entered under Article 42.015, Code of Criminal Procedure. (c) Requires the notice to be given within a specific time frame. (d) Provides that the notice contain the person's identifying information, anticipated residence, criminal history, and documentation of the person's institutional adjustment and actual treatment. Sec. 521.022. MULTIDISCIPLINARY TEAM. Requires the executive director of the Texas Department of Criminal Justice and the commissioner of mental health and mental retardation (commissioner) to jointly establish a multidisciplinary team to review records of a person referred to the team under Section 521.021 and, within a specific time frame, to assess whether the person is a sexually violent predator. Requires the multidisciplinary team to notify the attorney general and the prosecutor's review committee established in Section 521.023 of its assessment and to make the assessment available to those entities. Sec. 521.023. PROSECUTOR'S REVIEW COMMITTEE. Requires the attorney general to establish a prosecutor's review committee to review records of the person referred to the attorney general and requires that the review committee help the attorney general determine whether the person is a sexually violent predator. SUBCHAPTER C. PETITION ALLEGING PREDATOR STATUS Sec. 521.041. PETITION ALLEGING PREDATOR STATUS. Authorizes the attorney general to file a petition alleging that a person is a sexually violent predator along with sufficient facts to support that claim if the attorney general and the prosecutor's review committee determine the person to be a sexually violent predator. Establishes that the attorney general file the petition within a specific time frame. Sec. 521.042. PROBABLE CAUSE DETERMINATION. Requires the judge, upon the filing of a petition under Section 521.041, to determine whether probable cause exists to believe that the person is a sexually violent predator. Requires the judge to direct the person to be taken into custody if probable cause is determined to exist. Sec. 521.043. HEARING. Requires the attorney general, within a specific time frame, to give the person in custody under Section 521.042 notice of a hearing and an opportunity to appear at the hearing to contest the probable cause that the person is a sexually violent predator. Requires the judge at the hearing to verify the person's identity and determine whether the probable cause exists. Authorizes the attorney general to rely on the petition and to use documentary evidence or live testimony. Specifies the rights of the detained person. SUBCHAPTER D. TRIAL Sec. 521.061. PRETRIAL EXAMINATION. Requires the judge, upon finding probable cause with respect to whether a person is a sexually violent predator, to direct the transfer of a person to a secure correctional facility. Requires an expert to perform the examination to determine whether the person is a sexually violent predator. Sec. 521.062. TRIAL. Requires the judge to conduct a hearing, within a specific time frame, to determine whether the detained person is a sexually violent predator. Entitles the detained person or the state to a jury trial on demand. Establishes that a demand for a jury trial be filed in writing within a specific time frame. Specifies the jury selection process. Sec. 521.063. DETERMINATION OF PREDATOR STATUS. Requires the judge or jury to determine, beyond a reasonable doubt, whether a person is a sexually violent predator. Entitles both the state and the person to appeal the determination. Specifies that a jury determination that a person is a sexually violent predator must be unanimous. Sec. 521.064. RELEASE AFTER TRIAL. Requires the judge to direct the person's release if the judge or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator. Sec. 521.065. COMMITMENT OF PREDATOR. Requires that, upon the judge or jury determining the detained person is a sexually violent predator, the judge commit the person to the custody of the commissioner for control, care, and treatment until the person is deemed safe to be at large and not likely to engage in an act of sexual violence. Requires the MHMR and the Texas Department of Criminal Justice to enter into an interagency contract, with the MHMR treating and caring for persons committed under this section and the Texas Department of Criminal Justice housing these persons separately from other inmates. Sec. 521.066. CONTINUANCE. Authorizes the judge to continue a trial conducted under Section 521.062 either on the request of either party or on the judge's own motion if the continuance does not substantially prejudice the detained person. Sec. 521.067. MISTRIAL. Requires the judge, in the event of a mistrial, to direct the detained person's continued detention in a facility until another trial is conducted. Provides that the new trial begin within a specific time frame unless it is continued as stated under Section 521.066. SUBCHAPTER E. INCOMPETENCY Sec. 521.081. INCOMPETENCY. (a) Requires that the court first hear evidence and determine whether a person committed the act charged when the person charged with a sexually violent offense or an offense for which an affirmative finding under Article 42.015, Code of Criminal Procedure, could be entered, has been found incompetent to stand trial and is about to be released and whose commitment is sought. (b) Establishes that the hearing comply with all the procedures specified in this section, the applicable rules of evidence in a criminal case, and all of the defendant's constitutional rights, other than the right not to be tried while incompetent. (c) Requires the judge or jury to determine whether the person committed the act charged, whether the offense, if not a sexually violent offense, was sexually motivated, the extent to which the person's incompetence or developmental disability affected the outcome of the hearing, the extent to which the evidence could be reconstructed without the person's assistance, and the strength of the prosecution's case. (d) Requires that, if the judge or jury determines beyond a reasonable doubt that the person committed the act charged or that the offense was sexually motivated, the judge enter a final order on that issue which can be appealed by the person. Authorizes the judge to consider whether to commit the person under Section 521.065. SUBCHAPTER F. COMMITMENT REVIEW Sec. 521.101. ANNUAL EXAMINATION. Requires the person committed under Section 521.065 to receive an annual examination of the person's condition. Requires the commissioner to provide a report of the examination to the judge who committed the person. Sec. 521.102. ANNUAL REVIEW. Requires the judge to conduct an annual review of the committed person's status. Entitles the person to have counsel represent the person at the review, but the person cannot attend the review. Requires the judge to set a hearing if the judge determines that probable cause exists to believe that the person is safe to be at large and unlikely to engage in a predatory act of sexual violence if released. Sec. 521.103. HEARING. Entitles the committed person to attend a hearing set by the judge under Section 521.102 with the benefit of all constitutional protections. Entitles the state to have the hearing conducted before a jury and to have an expert examine the person. Places the burden of proof on the state to prove beyond a reasonable doubt that the person is not safe to be at large and that the person is likely to engage in an act of predatory sexual violence. SUBCHAPTER G. PETITION FOR RELEASE Sec. 521.121. AUTHORIZED PETITION FOR RELEASE. Requires the commissioner to authorize a committed person's petition for release if the committed person has changed to the degree that the commissioner determines the person is safe to be at large and unlikely to engage in a predatory act of sexual violence. Requires the petitioner to serve the petition on the court and the attorney general, and requires the judge to order a hearing within a specific time frame. Entitles the state to choose an expert to examine the petitioner. Requires the court to conduct a hearing before a jury at the request of the petitioner or the attorney general. Places the burden of proof on the state to prove beyond a reasonable doubt that the petitioner is not safe to be at large and is likely to engage in a predatory act of sexual violence. Sec. 521.122. UNAUTHORIZED PETITION FOR RELEASE. Requires the commissioner to provide to the committed person an annual written notice of the person's right to petition the court for release over the objection of the commissioner. Sec. 521.123. FRIVOLOUS PETITION FOR RELEASE. (a) Requires the judge, upon receiving a petition for release filed by the committed person without the consent of the commissioner, to determine whether the petition is based on frivolous grounds, and, if the petition is frivolous, to deny the petition without a hearing. (b) Requires the judge, with an exception, to deny without a hearing a petition for release that the petitioner filed without the authorization of the commissioner if the petitioner previously filed another petition for release without the commissioner's authorization and the judge determined that the petition was frivolous and that the person was not safe to be at large. (c) Provides that if the petition contains facts on which a court could find that a petitioner's changed condition warranted a hearing, then the judge is not required to deny the petition. SUBCHAPTER H. RELEASE OF COMMITTED PERSON Sec. 521.141. NOTICE OF RELEASE. Requires the commissioner to give written notice, prior to release, of the release of the committed person to the victim, the victim's guardian, or a close relative of the victim if the victim is deceased. Specifies that failure to notify under this section is not a reason to postpone release nor does it create a cause of action against the state or a state employee acting within the scope of employment. Defines "close relative of a deceased victim," "guardian of a victim," and "victim." SUBCHAPTER I. MISCELLANEOUS PROVISIONS Sec. 521.161. CONFIDENTIAL OR PRIVILEGED INFORMATION. Requires any entity that possesses relevant, confidential or privileged knowledge of a person's potential status as a sexual predator to release the information to the attorney general to protect the public, to meet the notice requirement under Section 521.141, and to determine predator status. Sec. 521.162. REPORT, RECORD, OR STATEMENT SUBMITTED TO COURT. Establishes that a psychological report, drug and alcohol report, treatment record, report of the diagnostic center, medical record, or victim impact statement submitted to the court under this chapter is part of the court record. Authorizes that the seal on the report, record, or statement be opened only on the order of the judge or as provided by this chapter. Sec. 521.163. CONSTITUTIONAL REQUIREMENTS FOR CARE AND TREATMENT. Provides that the involuntary detention or commitment of a person under this chapter conform to constitutional requirements for care and treatment. Sec. 521.164. COUNSEL. Entitles a person subject to this chapter to assistance of counsel and requires the court to appoint counsel if the person is indigent. Sec. 521.165. EXPERT. Authorizes a person who is examined under this chapter to retain an expert to perform an examination or participate in a civil commitment proceeding on the person's behalf. Requires the judge, at the request of an indigent person, to determine whether the person needs expert services, and if so, to appoint an expert to perform an examination or participate in a civil commitment hearing on the person's behalf. Requires the court to approve reasonable compensation for expert services rendered on behalf of an indigent person on the filing of a certified compensation claim, supported by a written statement containing specific information about the services rendered. Requires the court to ensure that an expert retained or appointed under this chapter has access to all relevant medical records and reports as well as to the patient for examination. Sec. 521.166. IMMUNITY. Establishes that an employee or officer of the MHMR or of the Texas Department of Criminal Justice, a member of the multidisciplinary team, a member of the prosecutor's review committee, and a person performing a service under this chapter are immune from liability for good faith conduct under this chapter. SECTION 2. Amends Chapter 42, Code of Criminal Procedure, by adding Article 42.015, as follows: Art. 42.015. FINDING OF SEXUAL MOTIVATION. Requires the court, in the trial of an offense other than a sexually violent offense, to make an affirmative finding of fact and enter the finding in the judgment in the case if the court determines that the defendant committed the offense with the intent to arouse or gratify the sexual desire of any person. Requires the court to enter the finding in the record of the hearing if the defendant did commit the offense with the intent to arouse or gratify the sexual desire of any person but is incompetent to stand trial. Defines "sexually violent offense." SECTION 3. Effective date: September 1, 1999. SECTION 4. Emergency clause.