Prophylactic Competency Restoration: Rare But Occurring in Texas

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Saturday, September 7th, 2013
Prophylactic Competency Restoration: Rare But Occurring in Texas

It takes two to speak the truth—
one to speak, and another to hear.

—Henry D. Thoreau

The Nature of the Dilemma

When a person with a cognizable mental illness enters the legal system as a result of arrest, the issues presented to the prosecution, the defense, and the court are more involved than the typical bond, negotiation, and trial processes. For the prosecution, there may be a heightened sense of urgency as it pertains to pre-trial release, which is fueled by the desire to protect a particular complainant or the community at large. Problematically, though, defense counsel may also believe that continued detention for the purpose of care and treatment is more beneficial to the client, albeit contrary to the client’s clear Constitutional right to a reasonable bond. The Court is then charged with adjudicating conflicting demands of public interest and protection of the defendant (including the immediacy of the need for assessment and treatment) with impartially setting a bond that is in keeping with the agreed bond schedule of its jurisdiction. The foregoing is occurring in counties where allegations become formal charges, the matter assigned to a particular court, and counsel appointed all in pretty short order. Consider what may occur when defense counsels are assigned but there is, as yet, no charging instrument. That is the scenario that is discussed herein—reported anecdotally to the authors as happening in smaller counties in Texas.

A Troubling Scenario

The scenario involves a mentally ill person who is arrested for what would likely be a Class B criminal trespass—if the case were filed. Upon the sworn affidavit of the arresting officer, the person is detained in the county jail. Because this county does not have direct filing of cases, the person may be retained for 15 days, or even longer if the statute is ignored, before the district attorney accepts charges, a cause number is generated, and the case is assigned to a court of dispositive jurisdiction.

The person is magistrated and bond set within 48 hours, but the person has no funds and remains in jail. For purposes of this scenario, let us presume an attorney was appointed at mag­istration. Because the person appears to be mentally ill, the sheriff is eager to dispose of the case, having few or no resources to treat the person in the jail—even if the person were willing. Thus, upon a request from the sheriff, a judge appoints an examiner to conduct a competency examination. After examination, the detainee is examined and opined to be incompetent. With no objection from counsel, the judge then signs an order for a Tex. Code Crim. Proc. art. 46B.073 commitment, committing the person to a state hospital for restoration.

Thus, the defendant was examined for competency to proceed upon a criminal case that is not yet existing, and the state hospital receives the person with a file number representing not the cause, but a tracking number for the person in the jail. Because the facility does no “look back,” no one is aware that the defendant was committed to be restored to competency in a non-existent matter. Consequently, the facility has no knowledge as to when the person would conceivably have been confined for a period in excess of the maximum sentence they could have served had they been convicted on day one.

Upon return to the county, if the person is opined “restored,” then the matter goes forward. However, if opined “not restored,” the original case cannot be “dismissed” as none had been filed and the basis for transfer to a court having civil jurisdiction as would otherwise exist under Tex. Code Crim. Proc. art. 46B.151 is not present. Jail staff will often ask the arresting officer/entity to drop any pending charge.

The Problem

The fundamental problems posed in the foregoing scenario are multifold: First, incompetence to stand trial is itself based upon two prongs: whether the person (1) is lacking sufficient present ability to consult with a lawyer with a reasonable degree of rational understanding, or (2) is lacking a rational as well as factual understanding of the proceedings against the person. And, in the absence of a charging instrument describing the nature and cause of the accusation, filed in a court with dispositive jurisdiction, it is impossible to determine if a person is or is not competent. Moreover, restoration to competency of a supposed incompetent person is not possible, as neither the specifics of the charge, or consequences of conviction—e.g., range of punishment—can be discussed if no charge is yet filed.

Second, the practice comports to no known statutes, as Tex. Code Crim. Proc. art. 46B.073 contemplates a commitment by a court of dispositive jurisdiction.

Third, the practice may be constitutionally impermissible. Persons have a constitutionally protected liberty interest in avoiding civil commitment, O’Connor v. Donaldson, 422 U.S.563 (1975). It would likely constitute a gross violation of a person’s due process rights to be subject to a commitment for which there is no statutory basis and ordinarily interlocutory not subject to appellate review. Tex. Code Crim. Proc. art. 46B.011.

Fourth, commitment under the rubric in this scenario is but prophylactic restoration—designed to restore a person who might be charged with a crime as a kind of vaccination against the likelihood of true future incompetence! By this logic, any number of persons could be committed to a mental health facility in anticipation that they might, at some future time, be incompetent—or, for that matter, confined in a correctional facility without necessity for due process.

Fifth, restoration of commitments of persons not yet charged establishes conditions making it difficult to dispose of the matter. For example, upon return if person is unrestored, the provisions of Tex. Code Crim. Proc. art. 46B.084 or 46B.151 do not apply, and the original case cannot be “dismissed” as none had been filed and the basis for transfer to a court having civil jurisdiction, as would otherwise exist under Tex. Code Crim. Proc. art. 46B.151, is not present.

Sixth, it is costly: It is very costly to a county to keep persons confined awaiting filing of a charging instrument, and it is costly to send a person to a restoration facility where the chargeback to the county’s mental health authority (based upon costs at Rusk State Hospital for an average competency restoration stay) are in the neighborhood of $37,500.

While it is certainly recognized and accepted that the state has a compelling interest in attempting the restoration of an incompetent defendant in order to pursue a case and for, ultimately, justice in whatever form to be done, what is the interest in restoring someone who is not actually charged with an offense? Keep in mind, this costly endeavor is not designed around an individual’s greater sense of well-being. It is specifically engineered to restore the person to competency. The thousands of tax dollars being used in this manner are being employed to ensure that a given person has a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him as is required by 46 B. Nothing more.

The jurist who believes that this intermediate treatment is somehow humanitarian has overestimated the goal. Additionally, if the person is restored but then, as is often the case with criminal trespass cases when mental illness was a factor, the case is subsequently not filed, was that restorative process money well spent? The state has restored an individual for a purpose that has gone from existing in theory to ceasing to exist. Additionally, absent considerable community or familial assistance, the individual is likely to deteriorate back to incompetence and likely return upon arrest for some future allegation and require additional restorative attempts.

What then is the result if the state does wish to prosecute the case but the individual has not, after considerable time and money, been restored? Not only can the state not file the charges, as it is not permitted to pursue them; there is no court with juris­diction capable of executing the arguably appropriate civil commitment. If this occurs, then a community has done a disservice to not only its coffers, but also to the accused, insofar as there is no mechanism in place for continued supervision or treatment.

Statutory Predicates for Restoration Proceedings

Criminal detention of any person begins with an arrest, either based upon a warrant or summons, or information obtained by an arresting officer. The officer executes a complaint which is sworn and states that the officer has good reason to believe the person has committed an offense. Tex. Code Crim. Proc. art. 15.05

Based upon the complaint the person is committed to the custody of the sheriff and detained in jail. See Tex. Code Crim. Proc. art. 16.20. Within 48 hours of such confinement, he must be magistrated (see Tex. Code Crim. Proc. art. 14.06, art. 15.17), advised of the nature of the accusation against him, and advised of the right to request counsel if he cannot afford same. Miranda rights are given. In some counties, counsel for an indigent defendant is appointed—though whether the person is seen by counsel in a timely manner varies widely. (The magistrate may, or may not, be authorized to appoint counsel under Tex. Code Crim. Proc. art. 26.04.)

The vast majority of 254 Texas counties do not have what is called “direct filing.” An officer’s affidavit is made to DA intake who, at that time, agrees to accept charges. Upon receipt of the affidavit, a charging instrument is constructed (disregarding, for the moment, indictments rendered by a grand jury in felony matters). An “information” is a “written statement filed and presented in behalf of the State by the district or county attorney, charging the defendant with an offense which may be law be so prosecuted.” Tex. Code Crim. Proc. art. 21.20. In most counties, that charging instrument may be delayed; consequently there are statutory limits upon how long a person may be confined pending trial of an accusation without a case filing or the state being “ready for trial.” Those periods of time from the commencement of the confinement are 90 days for a felony, 30 days for a Class A misdemeanor, and 15 days for a Class B misdemeanor. Tex. Code Crim. Proc. art. 17.151.

There is confusion in the statutes evident in Tex. Code Crim. Proc. art. 17.151(sec.2), for it states that these statutory limits “do not apply to a defendant who is . . . incompetent to stand trial, during the period of the person’s incompetence.” However, as previously noted, there is no statutory basis to find a person “incompetent” in the absence of any charging instrument having been filed—i.e., on the basis of an accusatory affidavit alone. Moreover, inasmuch as pursuant to Tex. Code Crim. Proc. art. 46B.0095, defendants receive time credits for restoration commitments, the due process rights of a defendant are violated when there is no statutory requirement to file a charging instrument prior to the time in which the person would otherwise be subject to mandatory release! For example, note that if the requirement for a Class B matter to be filed within 15 days is waived, and the person is confined for 30 days plus a possible 120 days of restoration (see Tex. Code Crim. Proc. art. 46B.073, 46B.080), then the person is nearing the maximum period of confinement for the charge in the accusatory affidavit.

On the other hand, if a case is filed in a court with dispositive jurisdiction, either the court on its own motion or upon the motion of either party could institute an examination for competency. See Tex. Code Crim. Proc. art. 46B.004, 4B.005.

Authority of a Magistrate Relating to a Mentally Ill Detainee

After a person has been detained and appears before a magistrate, the magistrate may, indeed, order the person to submit to an evaluation including a 21-day evaluation at a state facility—though only on request of the local mental health authority and with the consent of the head of the facility. See Tex. Code Crim. Proc. art. 16.22. Careful examination of that statute, however, reveals a shift in language from that applying to a magistrate prior to the filing of a charging instrument, to language that involves a trial court, defense counsel, and prosecuting attorney. (Contrast Tex. Code Crim. Proc. art. 16.22(a) with 16.22(b).) Moreover, a 16.22 evaluation merely identifies whether the detainee/defendant is a person with mental illness or mental retardation and “may be incompetent to stand trial and should undergo a complete competency examination under subchapter B, Chapter 46B.”

Thus a magistrate may order preliminary evaluation of a person but not institute 46B proceedings unless, or until, a charging instrument has been filed and a court of positive jurisdiction assigned. Rather he may order the local mental health authority to conduct a preliminary evaluation and if the person refuses to participate, then he may order an inpatient evaluation. Tex. Code Crim. Proc. art. 16.22(a).


What is counsel to do if presented with a scenario similar to that described in this note, wherein a person not yet charged is nonetheless identified as incompetent and committed to a state facility?

The proposed solutions to a problem of this import and magnitude are both short-term and achievable in the moment as well as further reaching both politically and procedurally. In the immediacy, counsel should consider filing an immediate Writ of Habeas Corpus in any district court and seek release for the various reasons outlined herein, and to that discussion we will now turn.

Involuntary Civil Commitment Writs

Unlike the typical statutory writ of habeas corpus found in Chapter 11 of the Texas Code of Criminal Procedure, a writ such as this could invoke the original jurisdiction of the Court of Criminal Appeals. Tex. Const. Art. V sec. 5(c), which provides:

(c) Subject to such regulations as may be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo, prohibition, and certiorari. The Court and the Judges thereof shall have the power to issue such other writs as may be necessary to protect its jurisdiction or enforce its judgments. The court shall have the power upon affidavit or otherwise to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction. (Amended Aug. 11, 1891, Nov. 8, 1966, Nov. 8, 1977, Nov. 4, 1980, and Nov. 6, 2001.)

The Court and the Judges have the power to issue a writ. See also Tex. Code Crim. Proc. Art. 4.04 (the codified version of this section of the Texas Constitution). [N]o Texas statute limits the authority or jurisdiction of this Court to consider an original habeas application . . .” Ex parte Alba, 256 S.W.3d 682, 689–90 (Tex. Crim. App. 2008)(Cochran, J., concurring) citing State ex rel. Wilson v. Briggs, 171 Tex. Crim. 479, 351 S.W.2d 892, 894 (1961) (orig. proceeding) (“The original jurisdiction of this court to issue writs of habeas corpus is unlimited”); see also Ex parte Thompson, 273 S.W.3d 177, ___, No. AP–75,720, 2008 WL 696476, at *2 (Tex. Crim. App. March 5, 2008) (quoting Briggs and stating that the Court’s original jurisdiction to issue writs of habeas corpus permits it to review a trial court’s contempt order).

The object of the writ is to relieve from illegal restraint and not to afford redress. Restraint is statutorily defined as “the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right.” Tex. Code, Crim. Proc. Art. 11.22. The legislature has further declared that the “writ of habeas corpus is intended to be applicable to all such cases of confinement and restraint, where there is no lawful right in the person exercising the power, or where, though the power in fact exists, it is exercised in a manner or degree not sanctioned by law.” Tex. Code. Crim. Proc. Art. 11.23.

The typical type of a writ invoking the original jurisdiction of the Court is a contempt case. In Ex parte Gibson, an attorney wrote a spirited letter to the Court of Appeals after his motion for an extension of time was denied. The CCA reversed the contempt order. Ex parte Gibson, 811 S.W.2d 594 (Tex. Crim. App. 1991)(orig. proceeding). See also Ex parte Pink, 746 S.W.2d 758 (Tex. Crim. App. 1988)(orig. proceeding)(CCA granted relief to attorney held in contempt during trial).

Supreme Court Jurisdiction?

Since no criminal charges have been filed in a situation such as this, a review of the Supreme Court’s constitutional jurisdiction might also provide relief:

Sec. 3. JURISDICTION OF SUPREME COURT; WRITS; CLERK. (a) The Supreme Court shall exercise the judicial power of the state except as otherwise provided in this Constitution. Its jurisdiction shall be co-extensive with the limits of the State and its determinations shall be final except in criminal law matters. Its appellate jurisdiction shall be final and shall extend to all cases except in criminal law matters and as otherwise provided in this Constitution or by law. The Supreme Court and the Justices thereof shall have power to issue writs of habeas corpus, as may be prescribed by law, and under such regulations as may be prescribed by law, the said courts and the Justices thereof may issue the writs of mandamus, procedendo, certiorari and such other writs, as may be necessary to enforce its jurisdiction. The Legislature may confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the Governor of the State.

Tex. Const. Art. V, sec. 3. See also Tex. Gov’t Code sec. 22.002(a). The Court or a single justice has the authority to issue writs in non-criminal matters. The linchpin in determining Supreme Court jurisdiction is whether “the writ is limited to those instances where the confinement is by virtue of an order, process, or commitment issued on account of the violation of some order, judgment, or decree entered by a court or judge in the trial of a civil case.” Ex parte Jackson, 113 Tex. 58, 59–60, 252 S.W. 149 (1923).


If you know of an individual sent for prophylactic competency, a writ in the Court of Criminal Appeals, invoking their original jurisdiction, would be an appropriate avenue for relief.

As well, it would be appropriate in some instances to notify the facility that is currently housing the individual as well as the Texas Department of Health and Human Services, as they likely are unaware of the procedural missteps that led to their acceptance of the person. Finally, depending on the amount of resistance that counsel is encountering in rectifying a given situation, consider notifying Disability Rights Texas and requesting assistance in the protection of the individual and perhaps joinder in the Writ.

Politically, the climate of today can perhaps best be described as one of fear. As of late, the importance of addressing the mentally ill of our community can be found in virtually every newscast and publication. Yet, mental health programs and initiative are consistently underfunded. Through a continuing short-fall in available resources, society ends up criminalizing those members with mental illness. Disproportionately, we criminalize the poor. Fear of what individuals might do, absent interference from the court, drives smaller counties to impermissibly incarcerate persons with mental illness, further disproportionally punishing them.

Even if you were to argue that prophylactic restoration were somehow morally permissible, the results do not justify the expenditure. Upon release, these individuals are left to their original circumstances and will not, in many cases, have access to the medications and services necessary to maintain competence.

On the local procedural side, a county would be well advised to establish a procedure—if not for direct filing—for expeditious filing of cases in which there is a special needs defendant, a possibly mentally ill or mentally retarded defendant, a medically compromised defendant who may need medical interventions, etc. Just that act would enable a whole series of procedural options in 46B, including the option to rapidly dismiss cases and transfer to civil. In addition to a more timely filing of charges after an arrest, which is not always feasibly done in smaller counties, perhaps more creative solutions are in order. For example, officers can be trained to screen for mental illness. It may be appropriate to hospitalize rather than arrest in the immediacy and monitor the situation before attempting to file charges. Although this may not be workable in allegations of violence, certainly the vast majority of trespass and mischief cases can be handled this way.

Identifying the persons in a population with known and documented mental illness, especially ones who have in the past been committed for restoration on the front end of filing cases, can be of great benefit. Thus, in cases where charges are filed, the prosecution is on notice that this case should be filed expeditiously and competency issues addressed.

Other parties in these transactions include the appointed examiner for competency, who would be well advised to ensure that, in fact, the case has been filed in court of dispositive jurisdiction. As well, the state facilities are pressed for bed space and prophylactic restoration commitments would represent an enormous waste of bed resources—and might, if any reasonable treatment efforts were made at the jail level, not be necessary. It would be in the state’s best interest to refuse to accept such commitments. Moreover, initiation of treatment efforts at the county level might well relieve the necessity for a proper competency examination and commitment—which would result in cost savings to the county, given the chargeback for 46B commitments.


It is known that restorative commitments are being used in counties across Texas even when no accompanying criminal case is yet filed. Although the extent to which this is happening is not clear, one would hope from a legal and ethical viewpoint that the instances are few. However, the fact that it is happening invites all members of the bar to familiarize themselves with the actual framework of 46B and have an open dialogue about not only was is permissible but also what makes the most sense. It is imperative that we work together in the early stages of any criminal allegation to assure that Constitutional rights are preserved from the very beginning and that we don’t, in our zeal to protect, systematically abuse those whose liberties are far too often neglected.