Tex.
Code of Crim. Proc. Article 16.22
Early Identification of Defendant Suspected of Having Mental Illness or Intellectual Disability
(a)
(1) Not later than 12 hours after the sheriff or municipal jailer having custody of a defendant receives credible information that may establish reasonable cause to believe that the defendant has a mental illness or is a person with an intellectual disability, the sheriff or municipal jailer shall provide written or electronic notice to the magistrate. The notice must include any information related to the sheriff’s or municipal jailer’s determination, such as information regarding the defendant’s behavior immediately before, during, and after the defendant’s arrest and, if applicable, the results of any previous assessment of the defendant. On a determination that there is reasonable cause to believe that the defendant has a mental illness or is a person with an intellectual disability, the magistrate, except as provided by Subdivision (2), shall order the service provider that contracts with the jail to provide mental health or intellectual and developmental disability services, the local mental health authority, the local intellectual and developmental disability authority, or another qualified mental health or intellectual and developmental disability expert to:(A)
interview the defendant if the defendant has not previously been interviewed by a qualified mental health or intellectual and developmental disability expert on or after the date the defendant was arrested for the offense for which the defendant is in custody and otherwise collect information regarding whether the defendant has a mental illness as defined by Section 571.003 (Definitions), Health and Safety Code, or is a person with an intellectual disability as defined by Section 591.003 (Definitions), Health and Safety Code, including, if applicable, information obtained from any previous assessment of the defendant and information regarding any previously recommended treatment or service; and(B)
provide to the magistrate a written report of an interview described by Paragraph (A) and the other information collected under that paragraph on the form approved by the Texas Correctional Office on Offenders with Medical or Mental Impairments under Section 614.0032 (Special Duties Related to Medically Recommended Supervision; Determinations Regarding Mental Illness or Intellectual Disability)(c), Health and Safety Code.(2)
The magistrate is not required to order the interview and collection of other information under Subdivision (1) if the defendant:(A)
is no longer in custody;(B)
in the year preceding the defendant’s applicable date of arrest has been determined to have a mental illness or to be a person with an intellectual disability by the service provider that contracts with the jail to provide mental health or intellectual and developmental disability services, the local mental health authority, the local intellectual and developmental disability authority, or another mental health or intellectual and developmental disability expert described by Subdivision (1); or(C)
was only arrested or charged with an offense punishable as a Class C misdemeanor.(3)
A court that elects to use the results of a determination described by Subdivision (2)(B) may proceed under Subsection (c).(4)
If the defendant fails or refuses to submit to the interview and collection of other information regarding the defendant as required under Subdivision (1), the magistrate may order the defendant to submit to an examination in a jail, or in another place determined to be appropriate by the local mental health authority or local intellectual and developmental disability authority, for a reasonable period not to exceed 72 hours. If applicable, the county in which the committing court is located shall reimburse the local mental health authority or local intellectual and developmental disability authority for the mileage and per diem expenses of the personnel required to transport the defendant, calculated in accordance with the state travel regulations in effect at the time.(a-1)
If a magistrate orders a local mental health authority, a local intellectual and developmental disability authority, or another qualified mental health or intellectual and developmental disability expert to conduct an interview or collect information under Subsection (a)(1), the commissioners court for the county in which the magistrate is located shall reimburse the local mental health authority, local intellectual and developmental disability authority, or qualified mental health or intellectual and developmental disability expert for the cost of performing those duties in the amount provided by the fee schedule adopted under Subsection (a-2) or in the amount determined by the judge under Subsection (a-3), as applicable.(a-2)
The commissioners court for a county may adopt a fee schedule to pay for the costs to conduct an interview and collect information under Subsection (a)(1). In developing the fee schedule, the commissioners court shall consider the generally accepted reasonable cost in that county of performing the duties described by Subsection (a)(1). A fee schedule described by this subsection must be adopted in a public hearing and must be periodically reviewed by the commissioners court.(a-3)
If the cost of performing the duties described by Subsection (a)(1) exceeds the amount provided by the applicable fee schedule or if the commissioners court for the applicable county has not adopted a fee schedule, the authority or expert who performed the duties may request that the judge who has jurisdiction over the underlying offense determine the reasonable amount for which the authority or expert is entitled to be reimbursed under Subsection (a-1). The amount determined under this subsection may not be less than the amount provided by the fee schedule, if applicable. The judge shall determine the amount not later than the 45th day after the date the request is made. The judge is not required to hold a hearing before making a determination under this subsection.(a-4)
An interview under Subsection (a)(1) may be conducted in person in the jail, by telephone, or through a telemedicine medical service or telehealth service.(b)
Except as otherwise permitted by the magistrate for good cause shown, a written report of an interview described by Subsection (a)(1)(A) and the other information collected under that paragraph shall be provided to the magistrate:(1)
for a defendant held in custody, not later than 96 hours after the time an order was issued under Subsection (a); or(2)
for a defendant released from custody, not later than the 30th day after the date an order was issued under Subsection (a).(b-1)
The magistrate shall provide copies of the written report to:(1)
the defense counsel;(2)
the attorney representing the state;(3)
the trial court;(4)
the sheriff or other person responsible for the defendant’s medical records while the defendant is confined in county jail; and(5)
as applicable:(A)
any personal bond office established under Article 17.42 for the county in which the defendant is being confined; or(B)
the director of the office or department that is responsible for supervising the defendant while the defendant is released on bail and receiving mental health or intellectual and developmental disability services as a condition of bail.(b-2)
The written report must include a description of the procedures used in the interview and collection of other information under Subsection (a)(1)(A) and the applicable expert’s observations and findings pertaining to:(1)
whether the defendant is a person who has a mental illness or is a person with an intellectual disability;(2)
subject to Article 46B.002 (Applicability), whether there is clinical evidence to support a belief that the defendant may be incompetent to stand trial and should undergo a complete competency examination under Subchapter B (Appointment of Experts), Chapter 46B (Incompetency to Stand Trial); and(3)
any appropriate or recommended treatment or service.(c)
After the trial court receives the applicable expert’s written report relating to the defendant under Subsection (b-1) or elects to use the results of a previous determination as described by Subsection (a)(2), the trial court may, as applicable:(1)
resume criminal proceedings against the defendant, including any appropriate proceedings related to the defendant’s release on personal bond under Article 17.032 (Release on Personal Bond of Certain Defendants with Mental Illness or Intellectual Disability) if the defendant is being held in custody;(2)
resume or initiate competency proceedings, if required, as provided by Chapter 46B (Incompetency to Stand Trial);(3)
consider the written report during the punishment phase after a conviction of the offense for which the defendant was arrested, as part of a presentence investigation report, or in connection with the impositions of conditions following placement on community supervision, including deferred adjudication community supervision;(4)
refer the defendant to an appropriate specialty court established or operated under Subtitle K, Title 2, Government Code; or(5)
if the offense charged does not involve an act, attempt, or threat of serious bodily injury to another person, release the defendant on bail while charges against the defendant remain pending and enter an order transferring the defendant to the appropriate court for court-ordered outpatient mental health services under Chapter 574 (Court-ordered Mental Health Services), Health and Safety Code.(c-1)
If an order is entered under Subsection (c)(5), an attorney representing the state shall file the application for court-ordered outpatient services under Chapter 574 (Court-ordered Mental Health Services), Health and Safety Code.(c-2)
On the motion of an attorney representing the state, if the court determines the defendant has complied with appropriate court-ordered outpatient treatment, the court may dismiss the charges pending against the defendant and discharge the defendant.(c-3)
On the motion of an attorney representing the state, if the court determines the defendant has failed to comply with appropriate court-ordered outpatient treatment, the court shall proceed under this chapter or with the trial of the offense.(d)
This article does not prevent the applicable court from, before, during, or after the interview and collection of other information regarding the defendant as described by this article:(1)
releasing a defendant who has a mental illness or is a person with an intellectual disability from custody on personal or surety bond, including imposing as a condition of release that the defendant submit to an examination or other assessment; or(2)
subject to Article 46B.002 (Applicability), ordering an examination regarding the defendant’s competency to stand trial.(e)
The Texas Judicial Council shall adopt rules to require the reporting of the number of written reports provided to a court under Subsection (a)(1)(B). The rules must require submission of the reports to the Office of Court Administration of the Texas Judicial System on a monthly basis.(f)
A written report submitted to a magistrate under Subsection (a)(1)(B) is confidential and not subject to disclosure under Chapter 552 (Public Information), Government Code, but may be used or disclosed as provided by this article.
Source:
Article 16.22 — Early Identification of Defendant Suspected of Having Mental Illness or Intellectual Disability, https://statutes.capitol.texas.gov/Docs/CR/htm/CR.16.htm#16.22 (accessed Jun. 5, 2024).
