HBA-NIK S.B. 29 76(R)BILL ANALYSIS
Office of House Bill AnalysisS.B. 29
By: Shapiro
Corrections
5/18/1999
Committee Report (Amended)
BACKGROUND AND PURPOSE
Currently, sexually violent predators are being released from prison once
they have served out their sentences even when criminal justice officials
are confident that they will offend again. Repeat sexually violent
offenders are a unique class of sexual offenders who exhibit behavioral
abnormalities making it highly likely that they will engage in further
predatory acts, and therefore are in need of treatment for their disorder.
S.B. 29 requires any person convicted of two sexually violent offenses and
suffering from a behavioral abnormality that makes the person likely to
commit further offenses to be subject to involuntary commitment
proceedings. Confinement under this section is not intended as further
punishment, and individuals that are committed will be reviewed biennially.
RULEMAKING AUTHORITY
It is the opinion of the Office of House Bill Analysis that rulemaking
authority is granted to the Interagency Council on Sex Offender Treatment
in SECTION 1 (Section 841.141, Health and Safety Code) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends the Health and Safety Code by adding Title 11, as
follows:
TITLE 11. CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS
CHAPTER 841. CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 841.001. LEGISLATIVE FINDINGS. Sets forth the findings of the
legislature.
Sec. 841.002. DEFINITIONS. Defines "attorney representing the state,"
"behavioral abnormality," "case manager," "council," "predatory act,"
"repeat sexually violent offender," "secure correctional facility,"
"sexually violent offense," "sexually violent predator," and "tracking
service."
Sec. 841.003. SEXUALLY VIOLENT PREDATOR. Provides that a sexually violent
predator is a repeat sexually violent offender who suffers from a
behavioral abnormality that makes the person likely to engage in a
predatory act of violence. Sets forth conditions under which a person is
considered a repeat sexually violent offender.
Sec. 841.004. PRISON PROSECUTION UNIT. Provides that a special division
of the prison prosecution unit is responsible for prosecuting civil
commitment proceedings under this chapter.
Sec. 841.005. OFFICE OF STATE COUNSEL FOR OFFENDERS. Requires the Office of
State Counsel for Offenders to represent a person subject to a civil
commitment proceeding under this chapter.
Sec. 841.006. APPLICATION OF CHAPTER. Provides that this chapter does not
prohibit a person from filing a petition at any time for release under
this chapter, or create a cause of action against another person for
failure to give proper notice.
Sec. 841.007. DUTIES OF INTERAGENCY COUNCIL ON SEX OFFENDER TREATMENT.
Provides that the Interagency Council on Sex Offender Treatment (council)
is responsible for providing appropriate and necessary treatment and
supervision through the case management system.
SUBCHAPTER B. NOTICE OF POTENTIAL PREDATOR; INITIAL DETERMINATIONS
Sec. 841.021. NOTICE OF POTENTIAL PREDATOR. Requires the Texas Department
of Criminal Justice (TDCJ) to give the multidisciplinary team established
under Section 841.022 notice of the anticipated release of a person who is
serving a sentence for a sexually violent offense and who may be a repeat
sexually violent offender. Requires Texas Department Mental Health and
Mental Retardation (MHMR) to give the multidisciplinary team notice of the
anticipated discharge of a person who committed certain offenses. Requires
TDCJ or MHMR to give written notice before the anticipated release or
discharge date. Sets forth requirements for information contained in the
notice.
Sec. 841.022. MULTIDISCIPLINARY TEAM. Requires the TDJC executive
director and the commissioner of MHMR jointly to establish a
multidisciplinary team that will review available records of referred to
the team. Sets forth the people included in the makeup of the
multidisciplinary team. Authorizes the team to request outside assistance
in making decisions. Requires the team to assess each person within 30 days
of receiving the notice of release, notify TDCJ or MHMR, and recommend
assessment for a behavioral abnormality.
Sec. 841.023. ASSESSMENT FOR BEHAVIORAL ABNORMALITY. (a) Requires TDCJ or
MHMR, as appropriate, to determine whether the person suffers from a
behavioral abnormality that make the person likely to engage in a predatory
act of sexual violence. Requires the department required to aid in the
determination to use an expert to examine the person. Authorizes the
department to contract for the expert services required by this section.
Requires the expert to make a clinical assessment based on testing for
pychopathy, a clinical interview, and other appropriate assessments and
techniques to aid in the determination.
(b) Requires the department making the determination to give notice of that
determination and provide corresponding documentation to the attorney
representing the state not later than the 30th day after the date of a
recommendation under Section 841.022.
SUBCHAPTER C. PETITION ALLEGING PREDATOR STATUS
Sec. 841.041. PETITION ALLEGING PREDATOR STATUS. Authorizes the attorney
representing the state to file, in a Montgomery County district court other
than a family district court, a petition alleging that a person referred to
the attorney is a sexually violent predator, and stating facts sufficient
to support the allegation. Provides that the attorney representing the
state must file the petition within a prescribed time.
SUBCHAPTER D. TRIAL
Sec. 841.061. TRIAL. Requires the judge to conduct a trial, not later
than the 60th day after the date a petition is filed, to determine whether
the person is a sexually violent predator. Establishes that the person or
the state is entitled to a jury trial on demand. Provides that the demand
must be filed in writing not later than the 10th day before the trial.
Entitles the person and the state to an immediate examination of the person
by an expert. Sets forth additional rights of the person at trial.
Authorizes the attorney representing the state to rely on the petition
filed under Section 841.041 and to supplement the petition with evidence or
live testimony.
Sec. 841.062. DETERMINATION OF PREDATOR STATUS. Requires the judge or
jury to determine whether, beyond a reasonable doubt, the person is a
sexually violent predator. Provides that either the state or the person is
entitled to appeal the determination. Requires a unanimous verdict if the
jury determines that a person is a sexually violent predator.
Sec. 841.063. CONTINUANCE. Authorizes the judge to continue a trial
conducted under Section 841.061 if the person is not substantially
prejudiced by the continuance and on the request of either party and a
showing of good cause, or on the judge's own motion in the due
administration of justice.
Sec. 841.064. MISTRIAL. Provide that a trial following a mistrial must
begin not later than the 90th day after the date a mistrial was declared in
the previous trial, unless the later trial is continued as provided by
Section 841.063.
SUBCHAPTER E. CIVIL COMMITMENT
Sec. 841.081. CIVIL COMMITMENT OF PREDATOR. Requires the judge to commit
the person for outpatient treatment and supervision to be coordinated by
the case manager if at a trial conducted under Subchapter D the judge or
jury determines that the person is a sexually violent predator. Provides
that the outpatient treatment and supervision must begin on the person's
release from a secure correctional facility or discharge from a state
hospital and must continue until the person's behavioral abnormality has
changed to the extent that the person is no longer likely to engage in a
predatory act of sexual violence.
Sec. 841.082. COMMITMENT REQUIREMENTS. (a) Requires the judge to impose
on the person requirements necessary to ensure the person's compliance with
treatment and supervision and to protect the community before entering an
order directing a person's outpatient civil commitment. Sets forth
mandatory requirements.
(b) Requires the judge to provide a copy of the requirements imposed under
Subsection (a) to the person and to the council. Requires the council to
provide a copy of those requirements to the case manager and to the service
providers.
(c) Requires the judge to transfer jurisdiction of the case to a district
court, other than a family district court, having jurisdiction in the
county in which the defendant is residing immediately after the person's
commitment.
Sec. 841.083. TREATMENT; SUPERVISION. (a) Requires the council to
approve and contract for the provision of a treatment plan for the
committed person to be developed by the treatment provider. Authorizes a
treatment plan to include the monitoring of the person with a polygraph or
plethysmograph. Authorizes the treatment provider to receive annual
compensation in an amount not to exceed $6,000 for providing the required
treatment.
(b) Requires the case manager to provide supervision to the person.
Requires the provision of supervision to include tracking services and, if
required by court order, supervised housing.
(c) Requires the council to enter into an interagency agreement with the
Department of Public Safety of the State of Texas (DPS) for the provision
of tracking services. Requires DPS to contract with the General Services
Commission (commission) for the equipment necessary to implement those
services.
(d) Requires the council to contract for any necessary supervised housing.
Prohibits the committed person from being housed for any period of time in
a mental health facility, state school, or community center. Defines
"community center," "mental health facility," and "state school."
(e) Requires the case manager to coordinate the outpatient treatment and
supervision required by this chapter, including performing a periodic
assessment of the success of that treatment and supervision; make timely
recommendations to the judge on whether to allow the committed person to
change residence or to leave the state and on any other appropriate
matters; and provide a report to the council, semiannually or more
frequently as necessary, which must include any known change in the
person's status that affects proper treatment and supervision; and any
recommendations made to the judge.
Sec. 841.084. PROVIDER STATUS REPORTS. Requires a treatment provider or a
supervision provider other than the case manager to submit, monthly or more
frequently if required by the case manager, a report to the case manager
stating whether the person is complying with treatment or supervision
requirements, as applicable.
Sec. 841.085. CRIMINAL PENALTY. Provides that a person commits an offense
if the person violates a requirement imposed under Section 841.082.
Provides that an offense under this section is a felony of the third
degree.
SUBCHAPTER F. COMMITMENT REVIEW
Sec. 841.101. BIENNIAL EXAMINATION. Requires a person committed under
Section 841.081 to receive a biennial examination. Requires the council to
contract for an expert to perform the examination. Requires the case
manager to provide a report of the biennial examination to the judge in
preparation for a judicial review conducted under Section 841.102.
Provides that the report must include consideration of whether to modify a
requirement imposed on the person under this chapter and whether to release
the person from all requirements imposed on the person under this chapter.
Requires the case manager to provide a copy of the report to the council.
Sec. 841.102. BIENNIAL REVIEW. Requires the judge to conduct a biennial
review of the status of the committed person. Provides that the person is
entitled to be represented by counsel at the biennial review, but the
person is not entitled to be present at that review. Requires the judge to
set a hearing if the judge determines at the biennial review that a
requirement imposed on the person under this chapter should be modified; or
probable cause exists to believe that the person's behavioral abnormality
has changed to the extent that the person is no longer likely to engage in
a predatory act of sexual violence.
Sec. 841.103. HEARING. (a) Provides that at a hearing set by the judge
under Section 841.102, the person and the state are entitled to an
immediate examination of the person by an expert.
(b) Provides that if the hearing is set concerning modification of an
imposed requirement, hearsay evidence is admissible if it is considered
otherwise reliable by the judge.
(c) Provides that if the hearing is set concerning a change of a
behavioral abnormality, the committed person is entitled to be present and
to have the benefit of all constitutional protections provided to the
person at the initial civil commitment proceeding. Requires the court to
conduct the hearing before a jury on the request of the person or the
attorney representing the state. Provides that the burden of proof at that
hearing is on the state to prove beyond a reasonable doubt that the
person's behavioral abnormality has not changed to the extent that the
person is no longer likely to engage in a predatory act of sexual violence.
SUBCHAPTER G. PETITION FOR RELEASE
Sec. 841.121. AUTHORIZED PETITION FOR RELEASE. (a) Requires the case
manager to authorize the person to petition the court for release if the
case manager determines that the committed person's behavioral abnormality
has changed to the extent that the person is no longer likely to engage in
a predatory act of sexual violence.
(b) Requires the petitioner to serve a petition under this section on the
court and the attorney representing the state.
(c) Requires the judge to set a hearing on a petition under this section
not later than the 30th day after the date the judge receives the petition.
Provides that the petitioner and the state are entitled to an immediate
examination of the petitioner by an expert.
(d) Requires the court to conduct the hearing before a jury on request of
the petitioner or the attorney representing the state.
(e) Provides that the burden of proof at the hearing is on the state to
prove beyond a reasonable doubt that the petitioner's behavioral
abnormality has not changed to the extent that the petitioner is no longer
likely to engage in a predatory act of sexual violence.
Sec. 841.122. RIGHT TO FILE UNAUTHORIZED PETITION FOR RELEASE. Requires
the case manager to provide the person with written notice of the person's
right to file with the court and without the case manager's authorization a
petition for release on a person's commitment and annually after that
commitment.
Sec. 841.123. REVIEW OF UNAUTHORIZED PETITION FOR RELEASE. (a) Requires
the person to serve the petition on the court and the attorney representing
the state if the committed person files a petition for release without the
case manager's authorization.
(b) Requires the judge to attempt as soon as practicable to review the
petition on receipt of a petition for release filed by the committed person
without the case manager's authorization.
(c) Requires the judge to deny without a hearing a petition for release
filed without the case manager's authorization if the petition is frivolous
or if the petitioner previously filed without the case manager's
authorization another petition for release; and the judge determined on
review of the previous petition or following a hearing that the petition
was frivolous; or the petitioner's behavioral abnormality had not changed
to the extent that the petitioner was no longer likely to engage in a
predatory act of sexual violence.
(d) Provides that the judge is not required to deny a petition under
Subsection (c) if probable cause exists to believe that the petitioner's
behavioral abnormality has changed to the extent that the petitioner is no
longer likely to engage in a predatory act of sexual violence.
Sec. 841.124. HEARING ON UNAUTHORIZED PETITION FOR RELEASE. Requires the
judge to conduct as soon as practicable a hearing on the petition if as
authorized by Section 841.123 the judge does not deny a petition for
release filed by the committed person without the case manager's
authorization. Provides that the petitioner and the state are entitled to
an immediate examination of the person by an expert. Requires the court to
conduct the hearing before a jury on request of the petitioner or the
attorney representing the state. Provides that the burden of proof at the
hearing is on the state to prove beyond a reasonable doubt that the
petitioner's behavioral abnormality has not changed to the extent that the
petitioner is no longer likely to engage in a predatory act of sexual
violence.
SUBCHAPTER H. MISCELLANEOUS PROVISIONS
Sec. 841.141. RULEMAKING AUTHORITY. Requires the council, by rule, to
administer this chapter. Provides that rules adopted by the council under
this section must be consistent with the purposes of this chapter. Requires
the council by rule to develop standards of care and case management for
persons committed under this chapter.
Sec. 841.142. RELEASE OR EXCHANGE OF INFORMATION. (a) Requires any
entity that possesses relevant information relating to the person to
release the information to an entity charged with making a determination
under this chapter to protect the public and to enable a determination
relating to whether a person is a sexually violent predator.
(b) Requires any entity that possesses relevant information relating to
the person to release the information to the case manager to protect the
public and to enable the provision of supervision and treatment to a person
who is a sexually violent predator.
(c) Requires TDCJ, the council, a service provider contracting with one
of those agencies, the multidisciplinary team, and the attorney
representing the state to release to the attorney any available information
relating to a person that is sought in connection with an attempt to
civilly commit the person as a sexually violent predator in another state
on the written request of any attorney for another state or a political
subdivision in another state.
(d) Authorizes TDCJ, the council, a service provider contracting with one
of those agencies, the multidisciplinary team, and the attorney
representing the state to exchange any available information relating to
the person to protect the public and to enable a determination relating to
whether a person is a sexually violent predator or to enable the provision
of supervision and treatment to a person who is a sexually violent
predator.
(e) Provides that information subject to release or exchange under this
section includes information relating to the supervision, treatment,
criminal history, or physical or mental health of the person, as
appropriate, regardless of whether the information is otherwise
confidential and regardless of when the information was created or
collected. Provides that the person's consent is not required for release
or exchange of information under this section.
Sec. 841.143. REPORT, RECORD, OR STATEMENT SUBMITTED TO COURT. Provides
that a psychological report, drug and alcohol report, treatment record,
diagnostic report, medical record, or victim impact statement submitted to
the court under this chapter is part of the record of the court. Provides
that notwithstanding Subsection (a), the report, record, or statement must
be sealed and may be opened only on order of the judge, as provided by this
chapter, or in connection with a criminal proceeding as otherwise provided
by law.
Sec. 841.144. COUNSEL. Provides that at all stages of the civil
commitment proceedings under this chapter, a person subject to a proceeding
is entitled to the assistance of counsel. Requires the court to appoint
counsel through the Office of State Counsel for Offenders to assist the
person if the person is indigent.
Sec. 841.145. EXPERT. (a) 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.
(b) Requires the judge to determine whether expert services for the person
are necessary on the request of an indigent person examined under this
chapter. Requires the judge to appoint an expert to perform an examination
or participate in a civil commitment proceeding on the person's behalf if
the judge determines that the services are necessary.
(c) 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 specifying
time expended on behalf of the person, services rendered on behalf of the
person, expenses incurred on behalf of the person, and compensation
received in the same case or for the same services from any other source.
(d) Requires the court to ensure that an expert retained or appointed
under this section has for purposes of examination reasonable access to a
person examined under this chapter, as well as to all relevant medical and
psychological records and reports.
Sec. 841.146. CIVIL COMMITMENT PROCEEDING; PROCEDURE AND COSTS. (a)
Entitles a person subject to a civil commitment proceeding under this
chapter and the attorney representing the state to a jury trial or a
hearing before a jury for that proceeding, except for a certain proceeding
set by the judge under Section 841.102(c)(1). Provides that the number and
selection of jurors are governed by Chapter 33 (The Mode of Trial), Code of
Criminal Procedure.
(b) Provides that a civil commitment proceeding is subject to the rules of
procedure and appeal for civil cases.
(c) Requires the state to pay the costs of a civil commitment proceeding
conducted under Subchapter D in an amount not to exceed $1,600. Requires
the state to pay the costs of state or appointed counsel or experts and the
costs of the person's outpatient treatment and supervision for any civil
commitment proceeding conducted under this chapter.
Sec. 841.147. IMMUNITY. Sets forth the persons that are immune from
liability for good faith conduct under this chapter.
SECTION 2. Amends Sections 51.13(a) and (b), Family Code, to provide that
except as provided by Chapter 841, Health and Safety Code, an order of
adjudication or disposition does not impose any civil disability ordinarily
resulting from a conviction or operate to disqualify the child in any civil
service application or appointment. Provides that the adjudication or
disposition of a child or evidence adduced in a hearing under this title
may also be used in subsequent civil commitment proceedings under Chapter
841, Health and Safety Code. Makes a nonsubstantive change.
SECTION 3. Amends Section 61.066, Human Resources Code, to provide that a
commitment to the commission may be used as evidence or otherwise in a
subsequent civil commitment proceeding under Chapter 841, Health and Safety
Code, regarding the same person.
SECTION 4. Makes application of this Act prospective, as of January 1,
2000.
SECTION 5. Effective date: September 1, 1999.
SECTION 6. Provides that this Act takes effect only if a specific
appropriation for the implementation of this Act is provided in H.B. No.1
(General Appropriations Act), Acts of the 76th Legislature, Regular
Session, 1999. Provides that if no specific appropriation is provided in
H.B. No. 1, the General Appropriations Act, this Act has no effect.
SECTION 7. Emergency clause.
EXPLANATION OF AMENDMENTS
Amendment #1:
(1) Amends proposed Section 841.022, Health and Safety Code, to provide
that the multidisciplinary team must include one person from the
Interagency Council on Sex Offender Treatment (council) who has experience
as a sex offender treatment provider.
(2)-(3) Amends proposed Section 841.023, Health and Safety Code, to delete
references to "Texas Department of Criminal Justice or the Texas Department
of Mental Health and Mental Retardation" and replace them with references
to the "multidisciplinary team."
(4) Amends Section 841.083, Health and Safety Code, to replace text
requiring the Department of Public Safety to contract with the General
Services Commission for the equipment necessary to implement tracking
services, with text requiring the Department of Public Safety to use the
equipment on state contract procured through the General Services
Commission.
(5)-(13) Amends proposed Sections 841.121-841.124, Health and Safety Code,
to replace each reference to "case manager" with "council."