(a) In accordance with Texas Code of Criminal Procedure (TCCP), Article 46.02, §5, an adult must be committed to the maximum security unit of a facility designated by the department for residential services for a period not to exceed 18 months if:
  (1) the adult is found incompetent to stand trial for any felony or misdemeanor because of mental retardation; and
  (2) the court did not make a determination that there is no substantial probability that the adult will become competent in the foreseeable future.
(b) In accordance with TCCP, Article 46.02, §6, an adult must be committed to a state MR facility for residential services if:
  (1) the following criteria are met:
    (A) the adult is found incompetent to stand trial and there is found no substantial probability that the adult will become competent in the foreseeable future; or
    (B) the adult has been previously committed to a maximum security unit of a facility under TCCP, Article 46.02, §5, in connection with the same offense; and
  (2) all charges pending against the adult have not been dismissed; and
  (3) in accordance with THSC, §§593.003, 593.052, and 593.041:
    (A) the adult is determined to have mental retardation in accordance with §415.155 of this title (relating to Determination of Mental Retardation (DMR));
    (B) the adult, because of mental retardation:
      (i) represents a substantial risk of physical impairment or injury to self or others; or
      (ii) is unable to provide for and is not providing for the adult's most basic personal physical needs;
    (C) the adult cannot be adequately and appropriately habilitated in an available, less restrictive setting;
    (D) the state MR facility provides habilitative services, care, training and treatment appropriate to the adult's needs; and
    (E) a report by an IDT recommending the placement has been completed in accordance with §412.264 of this title (relating to IDT Recommendation Concerning the Commitment of an Adult or a Minor or the Regular Voluntary Admission of an Adult to a State MR Facility Under the PMRA) during the six months preceding the date of the commitment hearing.
(c) In accordance with TCCP, Article 46.02, §7, an adult must be committed to a state MR facility for residential services if:
  (1) the following criteria are met:
    (A) the adult is found incompetent to stand trial and there is found no substantial probability that the adult will become competent in the foreseeable future; or
    (B) the adult has been previously committed to a facility under TCCP, Article 46.02, §5, in connection with the same offense; and
  (2) all charges pending against the adult have been dismissed; and
  (3) in accordance with THSC, §§593.003, 593.052, and 593.041:
    (A) the adult is determined to have mental retardation in accordance with §415.155 of this title (relating to Determination of Mental Retardation (DMR));
    (B) the adult, because of mental retardation:
      (i) represents a substantial risk of physical impairment or injury to self or others; or
      (ii) is unable to provide for and is not providing for the adult's most basic personal physical needs;
    (C) the adult cannot be adequately and appropriately habilitated in an available, less restrictive setting;
    (D) the state MR facility provides habilitative services, care, training and treatment appropriate to the adult's needs; and
    (E) a report by an IDT recommending the placement has been completed in accordance with §412.264 of this title (relating to IDT Recommendation Concerning the Commitment of an Adult or a Minor or the Regular Voluntary Admission of an Adult to a State MR Facility Under the PMRA) during the six months preceding the date of the commitment hearing.
(d) In accordance with TCCP, Article 46.02, §8, an adult committed to a state MR facility in accordance with TCCP, Article 46.02, §6, who has felony charges pending or an adult committed to a state MR facility in accordance with TCCP, Article 46.02, §7, who has had felony charges dismissed must be:
  (1) committed to the maximum security unit of the facility designated by the department; and
  (2) within 60 calendar days of arrival on the maximum security unit, be transferred to a nonsecurity unit or to a community program designated by the department, unless the adult is determined to be manifestly dangerous by a review board of the department.
(e) In accordance with TCCP, Article 46.03, §4(a), an adult may be committed to a state MR facility for residential services if:
  (1) the adult is found not guilty of criminal conduct by reason of insanity;
  (2) the conduct did not involve an act, attempt, or threat of serious bodily injury to another person; and
  (3) in accordance with THSC, §§593.003, 593.052, and 593.041:
    (A) the adult is determined to have mental retardation in accordance with §415.155 of this title (relating to Determination of Mental Retardation (DMR));
    (B) the adult, because of mental retardation:
      (i) represents a substantial risk of physical impairment or injury to self or others; or
      (ii) is unable to provide for and is not providing for the adult's most basic personal physical needs;
    (C) the adult cannot be adequately and appropriately habilitated in an available, less restrictive setting;
    (D) the state MR facility provides habilitative services, care, training and treatment appropriate to the adult's needs; and
    (E) a report by an IDT recommending the placement has been completed in accordance with §412.264 of this title (relating to IDT Recommendation Concerning the Commitment of an Adult or a Minor or the Regular Voluntary Admission of an Adult to a State MR Facility Under the PMRA) during the six months preceding the date of the commitment hearing.
(f) In accordance with TCCP, Article 46.03, §4(b) and (d), an adult must be committed to the maximum security unit of a facility designated by the department for residential services if:
  (1) the adult is found not guilty of criminal conduct by reason of insanity;
  (2) the conduct involved an act, attempt, or threat of serious bodily injury to another person; and
  (3) in accordance with THSC, §§593.003, 593.052, and 593.041:
    (A) the adult is determined to have mental retardation in accordance with §415.155 of this title (relating to Determination of Mental Retardation (DMR));
    (B) the adult, because of mental retardation:
      (i) represents a substantial risk of physical impairment or injury to self or others; or
      (ii) is unable to provide for and is not providing for the adult's most basic personal physical needs;
    (C) the adult cannot be adequately and appropriately habilitated in an available, less restrictive setting;
    (D) the state MR facility provides habilitative services, care, training and treatment appropriate to the adult's needs; and
    (E) a report by an IDT recommending the placement has been completed in accordance with §412.264 of this title (relating to IDT Recommendation Concerning the Commitment of an Adult or a Minor or the Regular Voluntary Admission of an Adult to a State MR Facility Under the PMRA) during the six months preceding the date of the commitment hearing.
(g) In accordance with TCCP, Article 46.03, §4(b), an adult committed to the maximum security unit of a facility designated by the department as described in subsection (g) of this section, must, within 60 calendar days of arrival on the maximum security unit, be transferred to a nonsecurity unit designated by the department, unless the adult is determined to be manifestly dangerous by a review board of the department.
(h) An adult represents a substantial risk of physical impairment or injury to self or others or is unable to provide for and is not providing for the adult's most basic personal physical needs, as referenced in subsections (b)(3)(B), (c)(3)(B), (e)(3)(B), and (f)(3)(B) of this section, if:
  (1) the adult's IQ is four or more standard deviations below the mean, (i.e., in the severe or profound range of mental retardation);
  (2) the adult's ICAP service level equals:
    (A) 1, 2, 3, or 4; or
    (B) 5 or 6 and the adult:
      (i) has extraordinary medical needs that would require direct nursing treatment for at least 180 minutes per week if the adult's caregiver were not providing such treatment; or
      (ii) exhibits incidents of dangerous behavior that would require intensive staff intervention and resources to prevent serious physical injury to the adult or others if the adult's caregiver were not managing such incidents; or
  (3) the adult meets other objective measures as determined by the department.

Source Note: The provisions of this §904.27 adopted to be effective January 1, 2001, 25 TexReg 12746; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; transferred effective September 1, 2023, as published in the August 11, 2023, issue of the Texas Register, 48 TexReg 4397