Floyd L. Jennings, JD, PhD

Overview

            Hearings on the competency of a defendant are rare creatures – in part, because a finding of incompetency is not one where either party suffers some loss of position or defeat. If a defendant is found incompetent there is a mandatory commitment for restoration, unless the examiner has opined, and the court found, that the person is unlikely to be restored in the foreseeable future. Such commitments do add some delay to the proceedings which are stayed until the person is restored or, if not restored, is subject to the options of Tex. Code Crim. Proc art. 46B.084(e) or (f), i.e. civil commitment by the criminal court or dismissal. But in the vast number of cases (75%+) a competency evaluation results in a finding of competency. And, if found incompetent, some 84% (in Texas) are restored after commitment for restoration treatment services. Further, a significant number are restored after a period of intensive psychiatric services.

            However, occasionally – and even then more often, in a high-profile case – a finding of incompetency is opposed, by one party or the other, and a hearing ensues. In the following we will explore this issue in greater detail.

Issue:  Basics

            It is fundamental that a person is incompetent to stand trial if they lack either sufficient present ability to consult with their attorney with a reasonable degree of rational understanding; or a rational and factual knowledge of the proceedings against them. Tex. Code Crim. Proc. art. 46B.003(a) (hereinafter, CCP art.xx).

            Competency is presumed until proved incompetent by a preponderance of the evidence. CCP art. 46B.003(b).

            The two-prong competency standard was established by Dusky v. United States, 362 US 402 (1960) and codified in the CCP. Further, Godinez v. Moran, 509 US 389 (1993) holds that the standard for competency is the same at all stages of the proceedings and applies at all stages of the proceedings.

            The issue of competency may be raised by either party or the court on its own motion. CCP art. 46B.004. No longer is a “bona fide doubt” about the competency of the defendant required as a predicate to raise the issue (CCP, art. 46B.004(c-1)); rather, some evidence from any source is sufficient to raise the issue.

            Court-ordered examiners in competency matters may either be psychiatric physicians or psychologists, qualified by board certification, training, and experience.

Procedure:  Obtain an Examiner

            If there is a suggestion of incompetency from any credible source, and the court agrees after an informal inquiry (note that the court may not weigh the evidence, e.g. some evidence of competency vs. some evidence of incompetency, but must order an examination if  there is more than a scintilla of evidence suggestive of incompetency. See Boyett v. State, 545 S.W.3^rd 556, 563-64 (Tex. Crim. App. 2018)), the first issue that arises is the choice of an examiner. And by “choice” I do not mean whether to choose a psychiatrist or psychologist since either may statutorily conduct such evaluations. There are occasions when a psychiatric physician, carefully selected, is a helpful choice. I have in mind a case wherein a demented man had murdered his brother and I recommended a psychiatric physician who is nationally known in traumatic brain injury. He conducted the examination and appended a copy of the radiographic image of a large tumor about the size of a ping-pong ball which was clearly visible even to any non-physician viewing the image. As well, he opined that the defendant likely had but a relatively short period in which to live. Both sides agreed upon a dismissal.

            But barring such phenomena, either a psychologist or psychiatric physician can conduct the examination. More important, is the examiner’s knowledge of forensic examinations, and history of having conducted the same, as well as the capacity to handle himself or herself as an expert witness.

            Relatedly, is issue of whether to request an ex parte examination or move for an examiner who is also court-appointed but who would supply the same information to the court and both parties. In Harris County we have a county unit, under the aegis of the courts, that conducts such examinations – at far less expense that would be incurred should the court authorize an ex parte examiner.  To be sure, in an extremely high-profile case, it may be desirable to seek or retain an outside examiner, with national prominence, though this is more relevant to sanity than competency.

Procedure:  Obtain an Order for Competency Evaluation

            The court likely has preferred forms; if not, appended is a generic order for obtaining a competency evaluation. Note that a court’s refusal to grant such a motion is reviewed under an abuse of discretion standard. Timmons v. State, 510 S.W.3d 713, 718 (Tex. App. – El Paso 2016 no pet.). Further, the issue of competency can be raised at any point in the proceedings.  CCP, art. 46B.005.

            Important, however, is that appeals from competency proceedings, and orders issuing therefrom, are interlocutory. “The trial court’s order of competency to stand trial is not a final, appealable judgment.” Lowe v. State, 999 S.W.2d 537, 537 (Tex. App.—Houston [14^th Dist.] 1999, no pet.). Neither the state nor the defense is entitled to appeal the decision of the trial court viz. competency. CCP, art. 46B.011.

            Failure to raise the issue of competency could result in an ineffective assistance claim. For example, in Burt v. Uchtman,  422 F.3d 557, 568 (7th Cir. 2005), the Seventh Circuit Court of Appeals found that counsel was ineffective in assisting a defendant in a capital murder case for failing to raise the issue of the defendant’s mental health status by requesting a competency evaluation. At his trial, Burt  originally plead “not guilty” but then changed his plea to “guilty” despite the advice of his attorneys. His attorneys stated that they spoke with him and advised him against pleading guilty but that he insisted on doing it anyway. The defendant, Burt, was subsequently sentenced to death for the murders of two men. The court found that defense counsel’s action in allowing their defendant to plead guilty without first requesting a competency hearing made counsel ineffective because counsel had notice of the defendant’s mental health status. See lengthy discussion in Covarrubias, Rebecca J. Comment: Lives In Defense Counsel’s Hands: The Problems And Responsibilities Of Defense Counsel Representing Mentally Ill Or Mentally Retarded Capital Defendants, 11 Scholar 413.

            Finally, on the topic of the order, ensure that the order is filed and that the court renders a finding thereupon – as Harris County has discovered cases wherein a case was dismissed and the dismissal states that the defendant was found incompetent with no trial record or note, nor report documenting such!

Contesting a Finding of Incompetency:  Request a Hearing

            There are two circumstances wherein competency findings are contested: (a) When the defendant is found incompetent and the state believes the person is competent; and (b) When the defendant is found competent and the defense believes the person is incompetent. Unless it does not matter to the defense, the better procedure is one wherein the state seeks an opinion, which gives the defense the option of either agreeing or disagreeing. It is a little more difficult when the opinion arises from one’s own witness!

            Note that no hearing is required unless you so request one. CCP, art. 46B.005(c).  As well, you are entitled to jury trial upon request. See CCP, art. 46B.051, see also, Thornhill v. State, 910 S.W.2d 653 (Tex. App—Fort Worth 1995 no pet.).  And while the decision of the jury must be unanimous (CCP, art. 46B.052), the standard of evidence to prove incompetence is a preponderance of the evidence. CCP, art. 46B.003(b). Note, however, that should the defendant be found incompetent, he remains in a state exhibiting an unvacated adjudication of competency, until found competent by a court of competent jurisdiction (or allowed to plead on a subsequent matter, which, as a matter of law effectuates restoration). See Manning v. State, 730 S.W.2d 744 (Tex. Crim. App. 1987).

            Though perhaps more appropriate under the topic of witness testimony, it is important that the examiner not comment upon the weight of the evidence. For example, if asked, “Doctor, do you have an opinion as to whether the defendant is incompetent to a preponderance of the evidence?”, the examiner should respond:  “I have an opinion as to the defendant’s competency, but it is the task of the trier of fact to a determine whether the weight of the evidence meets a preponderance standard.” Then, when asked, the examiner may continue to list the statutory elements in support of his/her opinion.

Issue of Presumption of Competency

            Ordinarily, the defendant is presumed to be competent until proven incompetent by a preponderance of the evidence. CCP art. 46B.103. However, the foregoing presumption is not true when a defendant was previously found incompetent and not restored or opined unlikely to be restored in the foreseeable future. In this circumstance, the defendant is in the state of what has been determined to be an “unvacated state of incompetence.” The controlling case which describes in great detail this circumstance and consequences related thereunto, is Manning v. State, 730 S.W.2d 744 (Tex. Crim. App. 1987). Manning holds that when a defendant is in an unvacated state of incompetence – and there has been no intervening plea in a subsequent matter which would restore the person as a matter of law – then there is a presumption shift, and equally important, a burden shift. That is, the person is presumed to be incompetent in all subsequent matters, unless or until, restored. And, in such a circumstance, the State has the burden to prove that the defendant is now competent – to a beyond a reasonable doubt standard.

            The foregoing would also necessitate a rather different competency examination; for the defendant is presumed incompetent so that the examiner, therefore, is not looking for evidence of incompetency – as is most commonly the starting point. Rather, the examiner is seeking to marshal as much evidence as may exist which would tend to support competency. And because any credible information of incompetency, more than a scintilla, would but establish the defendant’s continued incompetency, a conclusion that the defendant is competent is a difficult standard to meet.

            The implication of the foregoing is that a specially crafted motion/order for evaluation of competency in Manning cases is necessary.

Pre-trial Motions

            Because the court and the State may not be aware of CCP art. 46B.007, it may be helpful simply to file a notice to the State that the defense intends to proceed pursuant to the requirements of CCP art. 46B.007. Namely, that neither a statement made by the defendant during examination or at trial – nor testimony by an expert on that statement or evidence resulting from that statement – may be used in any subsequent criminal proceeding, other than at the competency trial, or unless the defendant has first introduced any evidence, statement, or testimony into evidence at the proceeding. As well, because a competency hearing is separate and apart from the trial on the crime with which the defendant is charged, “the purpose of a separate hearing is to allow a determination uncluttered by evidence of the offense itself.” Basham v. State, 608 S.W.2d 677, 679 (Tex. Crim. App. 1980). And because the guilt of the defendant is not at issue, introducing evidence as to the nature and details of the alleged offense is improper. Lasiter v. State, 283 S.W.3d (Tex. App. – Beaumont, 2009, pet. ref’d In re Lasiter, 2009 Tex. Crim. App. LEXIS 1154 (Tex. Crim. App., Aug. 19, 2009).

            Given the foregoing, a Motion in Limine should be filed prohibiting introduction of, or reference to, information concerning the underlying charge. Because not every reference to the underlying offense is prejudicial, it must be argued in the motion that “the evidence of the offense presented to the competency jury must be of such a nature as to deny the accused a fair and impartial determination of his competency.” Brandon v. State, 599 S.W.2d 547, 580 (Tex. Crim. App. 1979), vacated on other grounds, 453 U.S. 902 (1981). And, to preserve error, objection must be timely made should the State violate the motion/order.

Voir Dire

            There are three issues – requiring some exploration with veniremen – which need to be communicated to a jury.  The first issue is eliminating any misconception that a determination of competency or incompetence has any relation to exculpating the defendant. The average person would not distinguish between insanity and incompetency and likely entertain the false belief that should the defendant be found incompetent the person may be exculpated.  The second issue is with the period of time the person will be in restoration treatment and the likelihood of restoration, e.g., in Texas, approximately 84% of all defendants sent for restoration are restored within the time frame available to the court. The third issue is to ensure that veniremen are aware of the purpose of restoration, especially the necessity to ensure that a defendant has both a rational and factual knowledge of the proceedings against them. It is an issue of fundamental rights afforded defendants in the American judicial system.

            The foregoing issues can be raised in conversation with the members of the jury panel, but any violations must be met with strenuous objection during the hearing itself. For example, Brandon v. State, 599 S.W.2d 567 (Tex. Crim. App. 1979) was reversed because the prosecutor was found by the court to have repeatedly uttered erroneous and prejudicial comments (which) have no place in a dispassionate resolution of the question (of competency). The prosecutor had stated that incompetency was a way of securing release without court action and the court found his statements to be an “irrelevant diatribe.”

Qualifying the Expert Witness

            While lay witnesses can comment about a defendant’s behavior, it is an inappropriate reliance upon lay testimony when opposing counsel suggests that a defendant is competent because the person has been observed to engage in any specific behaviors, e.g., read a newspaper, fill out a commissary request (or grievance), etc.  Moreover, it would be equally inappropriate, were the suggestion made that because a defendant has been adjudicated incapacitated (i.e. has a guardian), the person is not competent. See discussion in Koehler v. State, 830 S.W.2d 665 (Tex. App. – San Antonio 1992). I recall many years ago when an ADA asked a jailer if the defendant read a newspaper, and the answer was “yes.” However, I had observed the same event and noted that the defendant (an elderly man) held the paper upside down, and could not reasonably be said to be “reading” the newspaper but merely engaging in a task familiar to him and in which he had engaged every morning! The upshot is that the weight of the testimony will fall on the examiner (or examiners if there is more than one). The Rules of Evidence apply. CCP art. 46B.008.

            While it may be simple to qualify the expert solely on the basis of CCP art. 46B.022, i.e., qualified to conduct evaluations by board certification or training, and continuing education, it may be necessary to be more specific, cf. the following:

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1. In cause number ____________, the State of Texas v. ________________, we call Dr. ________________.
2. Dr. please state your name and occupation for the court.
3. In what state or states are you licensed to practice (medicine or psychology)?
4. Are you board eligible or board certified? In what specialty, and by which board? (The American Board of Psychiatry and Neurology, the American Board of Professional Psychology)
5. Your honor, the Defense is requesting that the State stipulate as to the qualifications of this physician as a specialist in the field of medicine and psychiatry, (or psychology).
6. (If counsel for the State does not stipulate, qualify the witness.)

1. 1. Doctor, where did you attend medical school (or graduate school)?
   2. Did you graduate?
   3. What degrees do you possess?
   4. Describe the area of post-graduate education?
   5. What was the duration of your residency or other post-graduate training?
   6. In the years subsequent to completing your post-graduate training or residency, have you held any medical school or other faculty appointments?  At what faculty rank?
   7. Are you board eligible or board certified?
   8. What are the requirements for board certification by the American Board of Psychiatry and Neurology (or by the American Board of Professional Psychology)? 
   9. Describe any publications if you have any.
   10. How long have you been in practice?
   11. Have you examined defendants similar to xxxxx in the past?
   12. Have you testified in proceedings similar to this in the past? On a few, or many, occasions?
   13. Your honor, the Defense offers Dr. xxxxx as an expert in the field of medicine and psychiatry (or psychology).

7. Dr., tell the court if you are acquainted with the defendant here today.
8. What is your relationship with _____________________?
9. When did you examine ____________?
10. How much time did you spend face-to-face with the defendant?
11. How much time did you spend in review of records, or conversations with other sources of information?
12. To a reasonable degree of medical (or psychological) probability, have you arrived at a diagnosis concerning the patient’s  current medical or mental health condition?
13. What is that diagnosis? 
14. Dr., please explain in laymen’s terms the diagnosis of _____________________.
15. Dr. what does it mean to say that a person is not competent to stand trial?
16. And do you have an opinion as to whether the defendant is incompetent to stand trial in this case?
17. Dr., is the mere fact that a defendant has a mental condition, in and of itself, sufficient for you to opine that the person is not competent to stand trial?
18. Are you aware that there are statutory issues which must be addressed in any evaluation of competency?
19. What are those issues? (CCP art. 46B.024 and .025)

1. 1. Has a rational understanding of charges and potential consequences
   2. Capacity to disclose to counsel pertinent facts, events and state of mind
   3. Capacity to engage in reasoned choice of legal strategies and options
   4. Understands adversarial nature of criminal proceedings
   5. Has ability to exhibit appropriate courtroom behavior
   6. There is evidence to support that the defendant is a person with mental illness or an intellectual disability
   7. The identified condition has lasted, or is expected to last, continuously for at least one year
   8. The identified condition has impaired, or is impairing, the defendant’s capacity to engage counsel in a reasonable and rational manner
   9. Whether the defendant has been taking psychoactive or other medication, and whether the medication is necessary to effectuate or maintain the defendant’s competency
   10. The effect, if any, of the medication on the defendant’s appearance, demeanor, or ability to participate in the proceedings.

20. Did you explain to the defendant the purpose of the examination and the limitation on the rules of confidentiality as appertaining to the examination, as well as who would receive your report?
21. What treatment alternatives are you recommending for this defendant and why?
22. Could this defendant be safely treated on an outpatient basis? Why or why not?
23. Is the defendant medication compliant? If not, has an application for forced medications been filed?
24. Describe the facts upon which you based your opinion.   
25. In your medical opinion, based upon your observations and your medical training, what medications, if any, constitute the proper course of treatment and are indicated for this defendant?
26. To what facility are you recommending the patient be committed?
27. Your honor, I would like to pass this witness subject to possible recall if I may…

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                The foregoing should not be construed as an exhaustive list of queries for direct examination of an expert in a competency hearing; however, it may provide some directions for further inquiry, if needed.

Special Populations

                Two populations deserve specific attention in any anticipated competency hearing: (1) persons with an intellectual developmental disorder (IDD), and pro se defendants. The American Association on Intellectual and Developmental Disabilities defines an IDD as a disability arising before the age of eighteen (18), characterized by significant limitations both in intellectual functioning and adaptive behavior. The former term was “mental retardation.” See The Diagnostic and Statistical Manual of Mental Disorders – 5 (DSM-5), published by the American Psychiatric Association.

                Covarrubias, supra, argues, however, that IDD clients often conceal their deficits by a “cloak of competency.” They may not mention that they are unable to read or handle simple calculations and often work in menial jobs that do not require higher level cognitive skills. Moreover, many are not so obviously impaired that counsel – or a jury – would readily identify them as exhibiting a significant deficit in adaptive functioning. The author cites a 2007 Texas case, Hunter v. State, Hunter v. State, 243 S.W.3d 664 (Tex. Crim. App. 2007) where  the testifying psychologist explained how the defendant wore a cloak of competency to mask his symptoms of mental retardation and hide his deficits in adaptive and intellectual functioning. The psychologist pointed out that as part of the defendant’s cloak of competency, the defendant denied ever attending special education classes. The defendant also told the psychologist that “he had learned to use a computer in prison, but he actually had taken only a basic keyboarding class,” and had stated that he could “fix things at home” when in reality all he would do is tighten a loose doorknob!

            The moral is that any evidence from any credible source that the defendant might be incompetent should trigger an evaluation.

            The second special category are pro se defendants, who – in Texas – are often “sovereign citizens”, and whose preoccupations conceal highly crystallized and fixed delusions, such that representation is quite difficult. Such cases should also trigger a Faretta hearing (Faretta v. California, 422 U.S. 806 (1977)) so that the court may determine if the defendant is capable of defending himself.

Restoration Commitments

            In the event the trier of fact concludes that the defendant is incompetent, restoration commitments are mandatory unless the defendant is opined, and found, not likely to be restored in the “foreseeable future.”  Note that although there is no statutory definition of “foreseeable future”, in practical terms this means the period of time available to the court in these matters, i.e., a restoration commitment of sixty days plus a possible sixty-day extension for misdemeanants; or one hundred twenty days with a possible sixty-day extension for felony cases. A review of all the options, inpatient, jail-based and outpatient restoration are beyond the scope of this brief article, though each has statutory requisites, cf. Art. 46B.

            One may remember, as well, that the court is statutorily required to present to the restoration facility or program a host of materials, including a copy of the defendant’s criminal history.  See CCP Art. 46B.076(a)(5).

            In addition, because defendants often wait for extended periods on restoration beds, it is important to be aware of the forced medication statutes which apply to persons during the pendency of a finding of incompetency and transfer to a restoration program or facility.

Summary

            In the foregoing brief article, we have reviewed many – but by no means all – of the issues which arise in competency hearings, as well as tips for representation in these cases, e.g., Motions in Limine, direct or cross examination of experts, the standard of evidence, and the fact that restoration commitments are mandatory. Should further questions arise, please feel free to contact the author.

Scenario

Consider the following scenario, which is all too common: A defendant is arrested and is obviously mentally ill upon arrest, as well as having a long mental health history. The person is housed in a mental health unit within the jail and tells you, as counsel, “I don’t want to go to no hospital.”

However, you fear that he will not be able to get through a plea agreement. And, even if the defendant is charged with a misdemeanor and not a felony, you know that at the very least it will require 30 days to obtain a competency evaluation—if not longer. As well, were the defendant found incompetent the person would languish for 3 months awaiting space in a competency restoration program, which itself would last another 60 days, at best. Thus, even with a misdemeanor matter, be it a Class B or Class A, the likelihood is that the person will remain longer in custody—because he or she is mentally ill—than would have occurred had mental illness not been a factor, or had been brought to the attention of the court and the person pled out.¹

Moreover, the foregoing in-custody period is exacerbated by the shortage of space in restoration programs. What do you do?

Overview

Representing mentally impaired clients inherently creates a conflict between the expressed desires of the client and activity by counsel in the best interest of the client. Herein, I will explicate this conflict and proffer at least one solution to the dilemma: “Do I act solely as my client wishes, or do I try to find an outcome which is in his/her best interest, even if the client is opposed?” And, if so, under what conditions?

Duty of Counsel

Tex. Disciplinary Rules Prof’l Conduct R. 1.02 plainly states:

(a) Subject to paragraphs (b), (c), (d) and (e), (f), and (g), a lawyer shall abide by a client’s decisions:

(1) concerning the objective and general methods of representation;
(2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law;
(3) in a criminal case, after consultation with the law­yer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.

The necessity for zealous representation, respecting the client’s wishes, is not a laudable goal to which only lip service is given, but the very essence of justice. The presupposition, however, is that the client is not legally incapacitated—either in the civil sense, which would require appointment of a guardian,² nor in the sense of being incompetent to stand trial. See Koehler v. State, 830 S.W.2d 665 (Tex. App.—San Antonio 1992), for a discussion of the differences between incompetence in a criminal proceeding and incapacity in the civil sense.

The aforementioned scenario captures the heart of the conflict. Examine, however, the comment to Rule 1.02(12), which states that the lawyer is legally authorized to represent the client and such is “established and maintained by consenting adults who possess the legal capacity to agree to the relationship.”³ That section, however, does not address the circumstance of the person who has legal capacity in the civil sense, but is believed, and later opined and found, to be incompetent to stand trial in a criminal proceeding, inasmuch as the person is lacking either a rational and/or factual knowledge of the proceedings against them—or is unable to relate to their attorney with a reasonable degree of rational understanding.⁴ The Disciplinary Rules, however, contain a requirement that counsel always demonstrate attention and respect, even to the most disabled client. See Rule 1.03(5).

When a lawyer reasonably believes a client suffers a mental disability or is not legally competent, it may not be possible to maintain the usual attorney-client relationship. Nevertheless, the client may have the ability to understand, deliberate upon, and reach conclusions about some matters affecting the client’s own well-being. Furthermore, to an increasing extent, the law recognizes intermediate degrees of competence. . . .The fact that a client suffers a disability does not diminish the desirability of treating the client with attention and respect.

Counsel’s duty regarding disclosure of information that is confidential and may be privileged concerning the defendant’s mental state is admittedly not discussed in the Disciplinary Rules. Such information may well include the defendant’s desire to avoid treatment, though such would but perpetuate the defendant’s disturbed behavior and place the defendant in a position where he or she would be harmed by others, if not themselves. However, by analogy, just as counsel would be obliged to disclose to the court information appertaining to the defendant’s plan to commit a crime, harm others or even self, the Rules cite Rule 5.03(d)(1), Tex. R. Evidence, “indicate the underlying public policy of furnishing no protection to client information where the client seeks or uses the dictates of lawyer to aid in the commission of a crime or fraud.” So, similarly, no protection should exist for information disclosed in the interest of protecting the defendant from himself or herself, or others.

Related, though more narrowly focused, is the circumstance in which counsel has reason to believe that introduction of the client’s history of mental illness is the only viable defense, but the client objects to any suggestion he is mentally ill. Such was the case in the Kaczynski case.⁵ In that case, the 9th Circuit ultimately held that the trial court acted properly, though the defendant had argued that in exchange for the United States renouncing its intention to seek the death penalty, his guilty plea was involuntary because his counsel insisted on presenting evidence of his mental condition, contrary to his wishes, and the court denied his Faretta request to represent himself. The 9th Circuit also held that a criminal defendant in a capital case has no constitutional right to prevent his appointed defense counsel from presenting evidence in support of an impaired mental state defense at trial.

The Kaczynski case should put to rest the notion that defense counsel could be censured for introducing to the court any evidence of the defendant’s mental state in connection with the offense. To be sure, an insanity defense would require the consent of the defendant to go forward, though such is also predicated on the fact that at the time of trial the defendant is also competent. In that regard, note that it would be impossible to engage a defendant in his/her thinking at the time of the act with which charged unless the person is both competent and consenting. Nonetheless, Ross⁶ is quite correct that “no ethical code or rule dictates which course a criminal must take when a client, her judgment apparently clouded by mental illness, resists following counsel’s advice. This is one of those cases that is at the margins of ‘ethical decisionmaking.’”

But even speaking more narrowly as to the issue of competence, I am inclined to argue that counsel’s role should be tightly circumscribed, such that even if a decision arose when the court’s attention were to be called to the defendant’s history of mental illness and current mental state, counsel could rely upon information readily available to all parties—e.g., jail mental health screening, history of any jail-based mental health services, and general references to inability to relate to the defendant or the defendant’s obvious behavior, such as inattention to personal hygiene, disturbances created in hold-over prior to appearing before the court, as well as any utterances by the defendant to the court that are patently strange, if not bizarre (any of which would constitute that modicum of information necessary to trigger an informal inquiry, and likely competency evaluation).⁷

In the foregoing illustration, counsel’s duty is met without necessity for abrogation of any otherwise privileged information. The next element related to duty, of course, is to carefully read the examination provided by the court-appointed examiner—as examiners may not always follow the exact language of Tex. Code Crim. Proc. art. 46B.024 and .025 viz. the content of competency examinations. An opinion of incompetency, and finding of same, will trigger a mandatory competency restoration commitment—to outpatient services if the person can be safely treated on an outpatient basis (and such is available), otherwise to a jail-based program (again if available, and only to an inpatient restoration program if other options are not available or if the examiner recommends such).⁸

Discussion of the Ethical Dilemma

When counsel acts in a fashion as described earlier, with the full knowledge that the defendant harbors quite different wishes, then counsel is exercising what in health law or probate settings is called “substituted judgment,” as counsel is substituting his/her judgement for that of the client—i.e. surrogate decision-making. And thus, inherently, counsel is acting in manner that diminishes the client’s autonomy.⁹ Ross speaks eloquently of the weight of such a decision and argues convincingly, I believe, of the necessity to limit the scope thereof. She says, “At a minimum, criminal defense lawyers should reserve surrogate decision-making for those occasions when a mentally ill client’s best interests outweigh the client’s right to autonomous decision-making.”

This means looking long term at therapeutic interests as having greater weight to establish autonomy and functioning—even if hospitalization for restoration is required, and even if that hospitalization results in a somewhat longer period of “confinement” (to the extent that hospitalization is considered “confinement”) than might occur were the defendant to take a plea, with such supports by counsel and preparation as would make it possible for the person to get through a plea agreement with any degree of rational understanding. To do otherwise is to argue that society has no parens patriae duty to provide treatment services to persons sorely in need of same, though the parents patriae doctrine has long been the basis of involuntary or court-ordered mental health services, going back to the time of Edward I in the 13th century.¹⁰ Like marriage, decisions to exercise substitute judgment by counsel “are not to be entered into unadvisedly . . . but discreetly.” And, perhaps, as well, with a certain degree of humility based on the fact that in any particular case, counsel may well be wrong—practically speaking, though not unethical.

I would further argue that in addition to duties to the mentally disturbed client, counsel has a duty to the court. That duty is part of the constitutional protections provided to defend, and so that failure to disclose that a defendant has not the requisite mental state to be able to participate in the proceedings, knowledge of same, or capacity to relate to counsel would constitute a constitutional violation and a fundamental breach of counsel’s duty to the client, including the duty of ethical and zealous representation. Moreover, when counsel raises the issue, then there is an opportunity for that entity which is legally authorized to evaluate the defendant’s state of mind to offer an opinion—providing another set of eyes who see the defendant from a professional perspective. Evaluation of defendants for whom there is some evidence of incompetency constitutes another set of protections for the rights of the person.

Conclusions

The upshot of the foregoing is that raising the issue of a defendant’s possible incompetency is proper, affords constitutional protections to the defendant, honors the legal process, and, in fact, is part and parcel of the duty of zealous representation and satisfies counsel’s duty to the court as well. However, any disclosures should be circumscribed and limited insofar as possible to asking the court to take notice of behaviors exhibited by the defendant which are readily available to all parties. Moreover, exercise of substituted judgment does diminish, to a greater or lesser extent, the autonomy of the defendant but is in the defendant’s best interests.

Endnotes

1. Torrey, E. F., Steiber J., Exekiel, J., et al. Criminalizing the Seriously Mentally Ill: The Abuse of Jails as Mental Hospitals. Washington, DC: Public Citizen’s Health Research Group, 1992. See also Teplin L. Criminalizing mental disorder: the comparative arrest rate of the mentally ill. Am Psychol 39:794–803, 1984 23.

2. Tex. Disciplinary Rules Prof’l Conduct R. 1.02(12) and (13).

3. Ibid., 1.02(12)

4. Tex. Code Crim. Proc. art. 46B.003

5. United States v. Kaczynski, 239 F3d 1108 (9th Cir. 2001) cert. denied 535 U.S. 993 (2002). See also Ross, Josephine (1998). Autonomy vs. a Client’s Best Interests: The Defense Lawyer’s Dilemma When Mentally Ill Clients Seek to Control Their Own Defense. 35 Am. Crim. Law Rev. (1997–1998).

6. Ibid., Ross at 1345.

7. Tex. Code Crim. Proc. art. 46B.004 would allow the issue of competency to be raised by either party, and only a “suggestion” of incompetency which means “a representation of incompetency from any credible source” would trigger an informal inquiry by the court. In contrast to an earlier period “the court is not required to have a bona fide doubt as to the competency of the defendant in order to order an examination.”

8. Ibid., art. 46B.071

9. Op. cit. Ross at 1345.

10. See discussion by Custer, Lawrence B. (1978) The Origins of the Parens Patriae Doctrine. 27 Emory L. J. (1978)

Overview

In the following, I will review selected changes to Chapter 46B, Tex. Code Crim. Proc., as a result of SB 1326, signed by the governor on 6/12/2017 and effective on 9/1/2017.

The bill includes changes to several sections of the Texas Code of Criminal Procedure relating to management and disposition of matters involving defendants with mental illness as well as persons with an intellectual disability; readers are encouraged to look at the text of SB 1326 carefully in that regard. In addition, there are some specific changes to the Texas Health & Safety Code, as appertains to the time frame for civil commitment.

Generally speaking, this legislation represents contributions from several sources and as a result, some elements do not flow smoothly. Moreover, efforts from many with wide experience in the criminal justice community were necessary to remove some features from the final bill which would have been very troublesome; e.g., an earlier version included language permitting the court to order psychoactive medication for Class B offenders committed for restoration to an outpatient program. For example, the language included the following provision removed in conference committee:

(d) An order issued under this article may require the defendant to participate in: . . .

(2) an appropriate prescribed regimen of medical, psychiatric, or psychological care or treatment, including care or treatment involving the administration of psychoactive medication, including those required under Article 46B.086.

Of course, Sell v. United States, 539 U.S. 166 (2003), held that involuntary medical treatment involves issues of “clear constitutional importance,” and the due process clause would require a compelling state interest in forcing medication—which would ordinarily and in all likelihood not exist in matters involving confinement of six months or less (see also State ex rel F.H. 214 S.W.3d 780 (Tex. App.—Tyler 2007), Baldwin v. New York, 399 U.S. 66 (1970), United States v. Evans, 404 F.3d 227 (4th Cir. 2005)).

There are, however, other items in SB 1326 representing substantial change as to the conceptualization of restoration treatment. For example, clinical treatment is separated from “education,” and a person who is “clinically ready and can be safely transferred to a competency restoration program for education services but has not yet attained competency to stand trial” may be so transferred for the balance of the period remaining on his/her restoration commitment. See Art. 46B.079(b) (1). More about this provision will be discussed below.

In the following, however, I will address only a few of the changes imposed by SB 1326 (as many are not especially substantial in nature).

Magistrate’s Duties under Article 16.22

Tex. Code Crim. Proc. art. 16.22 has long provided for evaluation of persons believed to exhibit a mental illness or intellectual disability. With the enactment of SB 1326, however, not less than twelve (12) hours after the sheriff—or municipal jailer—has reason to believe that a person may be a person with mental illness or intellectual disability, written notice shall be provided to the magistrate. The magistrate, in turn, shall either order an examination by the local mental health authority, or other qualified mental health professional, to make a determination (either by examination or review of extant information) if, indeed, the person has a mental illness or is a person with an intellectual disability. Should the person refuse, then the magistrate may order the person to be held for a reasonable period, not to exceed 72 hours, for such evaluation to occur.

Somewhat confusing language follows (see art. 16.22(b)), such that except as otherwise permitted by the magistrate, the written assessment shall be provided within 96 hours after the original order (for persons held in custody) and for persons released, within 30 days.

The troubling portion of the language in Article 16.22—which has been extant, but largely gone unnoticed—is that the evaluation must not only answer the single issue of the presence of mental illness or intellectual disability, but “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.”

The foregoing is troubling because the issue is not ripe. In many if not most cases, it is not possible to raise issues of competency at this point. Defendants either toxic or mentally unstable at magistration have just been booked—persons to be charged with felonies are not yet charged and being held solely on probable cause. The indictment will follow (or not). Thus, raising the issue of competency is premature. Better to identify the person as exhibiting a mental illness or intellectual disability (which, by the way, may not easily be made in the time frame available) and allow some time to determine the manner in which the condition will impair the defendant’s ability to relate to counsel, or the person’s rational and factual knowledge of the proceedings. Note also that with the attendant focus upon provision of some mental health services in jails, a period of time allowing for the person to be re-established on medications frequently results in stability sufficient to meet the standard for competency. One possible value of identifying the need for a full competency exam during the 16.22 exam, and including that information in the 16.22 report, is to have that information immediately on hand once charges are filed, and some opportunity to stabilize has occurred. Accordingly, the 16.22 report can serve as the evidence needed to order competency proceedings unless jail-based treatment has already resulted in sufficient stability.

Definitions

A trick question has long been “What is the definition of competency in Texas statutes?” But in fact, there is no definition of competency per se as Texas Code Criminal Procedure article 46B.003 defines incompetency, and there is no corresponding definition of competency in article 46B.001. However, SB 1326 adds a definition of “competency restoration” that includes the positive statement of the state to which the person is being restored, e.g.:

(9) “Competency restoration” means the treatment or education process for restoring a person’s ability to con­sult with the person’s attorney with a reasonable de­gree of rational understanding, including a rational and factual understanding of the court proceedings and charges against the person.

Noteworthy for that to which has already been alluded, herein the statement is “treatment” or “education”—separating the two.

Reporting to OCA

An addition, article 46B.026 requires courts to submit the number of reports provided to the court under this article to the Office of Court Administration (OCA) every month.

Situs of Commitment for Restoration

Likely, the most significant change to 46B are the changes to articles 46B.071 and 46B.073 concerning the differing sites for commitment of persons found incompetent based upon the nature of the charge and availability of options. The logic of SB 1326 is something like this:

a) Absent an article 17.032(a) offense, or a finding under article 42A.054(c), requiring the person to be committed to a maximum security facility, the initial question is: “Is the person not a danger to others and can the person be treated safely in the community?” If the answer is “yes” then the person is to be committed to an outpatient com­pe­tency restoration program, of which there are only cur­rently a handful in the state.

b) If the person could not be treated on an outpatient basis, or no outpatient program is available, the next alternative for the court is commitment to a jail-based competency restoration program—for which, as of August 2017, there are no programs extant in the approximately 240 jails in the State of Texas.

c) If neither an outpatient program is available nor a jail-based program (or the person could not be treated safely on an outpatient basis, or a maximum security program is required), only then may the court commit a person to a mental health facility or residential care facility.

d) Even in the case when no other option is available, a Class B defendant may not be committed to a mental health facility or residential care program unless “a li­censed or qualified mental health professional determines that a jail-based competency restoration program is not appropriate.” The standards for such determination are not specified; however, logically such standards would relate to an opinion viz. the acuity of the person’s clinical condition that would warrant the intensive struc­ture of an inpatient mental health facility. See article 46B.073(f).

e) In addition, the predicate for an order committing a person to participate in an outpatient competency res­toration program requires that the court: (1) receive and approve a comprehensive treatment plan; that (2) provides for treatment for the purposes of restoration; (3) identifies the person who will be responsible for providing that treatment to the defendant; and (4) the treatment proposed will be available to and will be provided to the defendant. See article 46B.072(c).

Content of Court Order for Outpatient Restoration Treatment

Specifically, about outpatient competency restoration, the court may order Class B defendants to participate in “an appropriate prescribed regimen of medical, psychiatric, or psychological care or treatment.” Note, however, that forced medication for Class B defendants—for the purpose of restoration—is in all likelihood invalid pursuant to Sell v. United States. For a thorough discussion of this issue, readers are encouraged to see Brian Shannon’s article in the St. Mary’s Law School Journal.¹

For Class A and felony defendants, the court may order “an appropriate prescribed regimen of medical, psychiatric, or psychological care or treatment, including care or treatment involving the administration of psychoactive medication, including those required under Article 46B.086.” See art. 46B.072(d)(2).

Readers should be aware, however, that the requirements for judicial hearings on the issue of forced medication apply—e.g., first seeking an order under Tex. Health & Safety Code § 574.106 and if that fails, then under Tex. Code Crim. Proc. art. 46B.086.

Issues Relating to Outpatient Competency Restoration

There are several issues, or hurdles to overcome, regarding outpatient competency restoration programs. These issues should be at the forefront of any proposed plan for outpatient restoration, so as avoid a plethora of treatment failures.

The first is that it is far wiser to conceptualize release for the purpose of court-ordered treatment and not “release on bail”—unless there are no conditions whatsoever attached. The logic is that a person who has been found incompetent is to be considered as incompetent at all stages of the proceedings. (See discussion in Godinez v. Moran, 509 U.S. 389 (1993).) Consequently, an incompetent person could scarcely execute the affidavit to appear as in Tex. Code Crim. Proc. art. 17.04. Wiser, therefore, that the court would simply order release of the defendant from custody for the sole purpose of participation in an outpatient competency restoration program—much as would be the case were the defendant committed to the state hospital for an inpatient program.

The second issue has to do with housing: It is a sine qua non that defendants released to the community for purposes of restoration treatment must have stable housing. This means either that the person has familial or another housing circumstance that will provide some degree of stability—and the court should have assurance of same before commitment follows. For persons who are homeless, or whose acuity is such that they could not manage their behavior in a setting lacking controlled access and egress, or are unable to live independently—having funds for food, clothing, laundry, etc.—there are serious questions about what kind of setting would afford a sufficient degree of stability.

The third issue, and certainly related to the foregoing, has to do with the person’s willingness and ability to manage his or her own medications. If either is lacking, it would be crucial that the defendant reside in a setting where a responsible person can ensure that the defendant receives prescribed medications at the designated time daily, or at the otherwise designated interval. Moreover, forced medication under the Tex. Health & Safety Code § 574.106 permits only court intervention for persons housed in jail or inpatient settings. Even if forced medication were legally permissible on an outpatient basis, there are few psychiatric physicians bold enough to pursue this option for at least two reasons: (1) The means of forcibly administering medications to persons receiving outpatient treatment are limited. It is unlikely that any facility or program would send a team of staff to a person’s residence and exert the force necessary to medicate a person who is otherwise refusing; and the spectre of physicians or nurses riding around on motorcycles with medications in spring-loaded dart guns, zapping refusing patients on sight, is simply ludicrous. And (2), most providers would be very concerned as to the inability to monitor side effects of medications administered under such conditions—likely impossible in an outpatient setting.

Note that Professor Shannon has pointed out that an exception might be an “outpatient” program with a residential component, though such a setting is more a hybrid than a strictly “outpatient” program. What is commonly considered is to establish a defendant/patient on a long-acting psychopharmacological agent requiring injections perhaps every three weeks or once a month—before they are placed on outpatient status. Only in such circumstances could the person be managed without necessity for extraordinary efforts to administer medications. If, however, the person is not medication complaint and otherwise not on long-acting agents, then the viability of participation in an outpatient program is greatly reduced.

The fourth issue related to outpatient competency restoration is transportation to the location of the program. It is not reasonable to expect that incompetent defendants could manage public transportation (if such even existed) and arrive at the location in a timely way. Were that the case, and the person had such functional capacities, they might well be a long way toward competency! Thus either the entity or some other means, such as family members or staff at a personal care home, would be necessary to ensure that the person arrives at the program site as required.

Finally, the availability of outpatient competency restoration programs is limited in the state. Some programs are indistinguishable from conventional outpatient mental health treatment, and such are less than desirable. In fact, programs that truly incorporate features of a day-treatment program plus the educational aspects appertaining to court proceedings are truly few in number. For such would have on-site a psychiatric physician who sees the defendant/patients weekly, as well as structured programmatic activities throughout a work day (give or take, about six hours per day of structured treatment), benefits specialists to assist in re-obtaining public benefits, plus provision of lunch and mid-day medications. In addition, other staff required would include program specialists and a psychologist to conduct re-evaluations of competency meeting the standard in accord with Tex. Code Crim. Proc. art. 46B.022 Anything less is not quite the standard—nor would it be the equivalent of an in-patient program save for housing and evening programming.

The net effect is that establishing regional outpatient programs is essential—even relying upon state hospital locations, though, to my knowledge, this option has not been floated generally, and may be rejected simply because of lack of space.

Time Frames

In the new legislation, the time frames for restoration commitment are as follows (46B.073).

Note that under 46B.079, a facility or program provider may notify a court that the initial restoration period is about to expire and include a request for a 60-day extension. In the following section (46B.080) it is stated that “on a request of the head of a facility or a program provider that is made under Art. 46B.079(d) and notwithstanding any other provision of this subchapter, the court may enter an order extending the initial restoration period for an additional period of 60 days.” Thus, it appears that any one of the program offerings—i.e., outpatient, jail-based or inpatient—may be extended beyond the period of initial restoration for a period of 60 days.

Transportation of Defendant

Article 46B.075 requires that save for outpatient restoration programs, the person is to be “placed in the custody of the sheriff or sheriff’s deputy for transportation to the facility.” The statute is silent upon whether a defendant can be released on bond pending such transfer; however, an incompetent defendant could scarcely be able to execute the promise to appear required of persons on bond, as discussed earlier.

Article 46B.078 contains language that can only be described as troubling, for it states that “if the charges pending against a defendant are dismissed . . . ,” the court that issued the order shall send a copy to the sheriff of the originating county and the head of the facility, or provider of the outpatient competency restoration program. What is troubling is the next section (and note that all charges have been dismissed, thus terminating the court’s jurisdiction). “On receipt of the copy of the order, the facility or program shall discharge the defendant into the care of the sheriff or sheriff’s deputy for transportation in the manner described by Article 46B.082.” However, art. 46B.082 contemplates return of the defendant to the court. In this circumstance, the charges are dismissed and the court’s jurisdiction is terminated.

Many sheriffs will suffer apoplexy when advised they are expected to transport a person across county lines—perhaps hundreds of miles distant—with no charges pending, and lacking personal jurisdiction. Moreover, would a sheriff return a person some distance in their patrol car without restraints? And were the person returned on a Friday afternoon—when no court is open—the sheriff would have no grounds to book them back into the jail. Consequently, I would strongly encourage all courts and counsel to ensure that the defendant has been returned to the county of origin before charges are dismissed!

In the foregoing scenario, a person is likely to have charges dismissed because they are, or have, timed-out—i.e., have served that period of time in jail or in a facility equivalent to the maximum sentence he or she could have received had they been convicted on day one (cf. Tex. Code Crim. Proc. art. 46B.009 and .0095). However, some will have restored, but many will remain incompetent. It is correct that in such circumstance, concerning persons remaining incompetent, the present statute (see art. 46B.151) permits the court to retain jurisdiction after dismissal for the specific purpose of (a) transferring the matter to a court with mental health jurisdiction, and (b) ordering the person to be held in jail—brief—“pending prompt initiation of civil commitment proceedings,” and pending further orders from the court having mental health jurisdiction. But absent a 46B.151 determination, the issue is clouded.

Put simply, the wiser course is to ensure that the person is returned to the county of origin before all charges are dismissed.

Separation of Treatment and Education

Article 46B.079(b)(1) and Article 46B.0805 entitled “Competency Education Services” are reminiscent of the description of a “camel as a horse designed by a committee”; for these sections separate two elements of competency restoration not so easily separated, namely clinical treatment and education.

Art. 46B.079(b)(1) provides:

(b) The head of the facility or jail-based competency restoration [or outpatient treatment] program provider shall promptly notify the court when the head of the facility or [outpatient treatment] program provider believes that:

(1) the defendant is clinically ready and can be safely transferred to a competency restoration program for education services but has not yet attained competency to stand trial;

Then in a new section, article 46B.0805 reads:

Art. 46B.0805. COMPETENCY RESTORATION EDUCATION SERVICES. (a) On notification from the head of a facility or a jail-based competency restoration program provider under Article 46B.079(b)(1), the court shall order the defendant to receive competency restoration education services in a jail-based competency restoration program or an outpatient competency restoration program, as appropriate and if available.

These two sections serve to separate clinical treatment from education services as applied to restoration services. It is presumed that persons will be “clinically ready” but lacking viz. the education necessary to effectuate restoration. In my experience this is highly unlikely to be the case. The standard for restoration is so low that once a person has any reasonable clinical stability they are restored. For example, the Court of Criminal Appeals has held that a person with an IQ in the 60s is competent. See Ex Parte Rodriguez, 164 S.W.3d 400 (Tex. Crim. App. 2005).² Moreover, it requires little in the way of being “stable”—inasmuch as psychosis is not dispositive of competency. See Moore v. State, 999 S.W.2d 385 (Tex. Crim. App. 1999), Battle v. U.S., 419 F.3d 1292 (11th Cir. 2005), Medina v. Singletary, 59 F.3d 1095 (11. Cir. 1995).

In addition, if a person cannot learn, relatively easily, the cognitive features associated with competency—e.g. the purpose of a trial, roles of parties, nature of charges, possible penalties, etc., etc.—then there is likely such a severe intellectual deficit that they are unlikely to be restored in the time frame available to the court.

It has been pointed out, however, that the concept involved wanting to have a tool in place for quick medical stabilization in the jail, and then a transfer to an outpatient treatment program with a residential component for any further “education” services, if needed. Of course, we need such programs to exist for this to be of any value.

Another issue, however, is that if a person is deemed clinically ready but in need of further education, he or she can only be sent to a jail-based or outpatient program for the remainder of the time available on the restoration commitment. Given that no jail-based programs now exist and, even in the future, few will be established due to the space, sound, and staffing requirements unavailable in modern jails, the odds of finding a suitable program with dispatch are few. Thus a person with, let us say, 40 days remaining, may wait an additional 60 days for a bed, during which time the gains made in the restoration program may be lost if the person is not held in a well-structured mental health treatment program—not existing in virtually all jail settings. One of the few settings in which the act may be helpful is that wherein there is a facility with an attendant outpatient program—providing an opportunity for step-down care of persons whose acuity has improved markedly.

In most conditions, however, this is a provision that is likely to be problematic at best, and ineffective at worst.

Continuation of Medications

Additions to 46B.0825 will allow a sheriff to seek reimbursement for providing medications prescribed for persons in restoration—though, to be sure, the sheriff is not responsible for providing unreimbursed medications. While sounding much like an especially un-useful section, this addition does emphasize the necessity for continuing persons on medications prescribed during the course of treatment.

Court Decision on Restoration

When a person is returned from a facility or program, the court shall make its determination on the issue of competency “not later than the 20th day after the date on which the court received the applicable notice under Article 46B.079, or not later than the fifth day after the date of the defendant’s return to court, whichever occurs first, regardless of whether a party objects to the report . . . and the issue is set for hearing.” See Art. 46B.084(a-1)(1). Note that the facility’s opinion on restoration or lack thereof prevails and establishes a rebuttable presumption to the contrary; see Moralez v. State, 450 S.W.3d 553 (Tex. App.—Houston [14th Dist.] 2014). As well, a decision must be made—promptly, for allowing the defendant to languish with no decision on competency having been made is improper. See Timmons v. State, 510 S.W.2d 713 (Tex. App.—El Paso 2016).

Jail-Based Competency Restoration

Article 46B.090 is amended to authorize not only a jail-based program created by the Texas Department of Health & Human Services, but article 46B.091 also adds a jail-based competency program administered by a county—or a group of counties. This statute requires at least one psychiatric physician, and other qualified mental health practitioners, providing the same number of hours of services as would be provided in an inpatient facility. As well, a psychiatrist or psychologist (as qualified under article 46B.022) shall “conduct at least two full psychiatric or psychological evaluations of the defendant during the period the defendant receives competency restoration services in the jail.”

Unfortunately, the foregoing language does not distinguish between psychiatric or psychological evaluations and forensic evaluation for the purpose of ascertaining competency to stand trial—though these are quite different evaluations, requiring different consents and with differing content.

The statute also requires operation in a “designated space that is separate from the space used for the general population of the jail,” which precludes establishing a program in virtually every jail in the state, of the 240 jails now extant—save for Lubbock County, which has a psychiatric unit within the jail itself.

One option, not mentioned statutorily but which may be possible is that of a jail-based program in which the jail provides housing and daily transports the defendants to a separate facility—i.e., a mental health facility, wherein the sheriff retains care, custody, and control, and provides deputies for security—much as would be provided were a defendant transferred temporarily to a local general hospital, yet not being subject to release.

Time Frame for Commitment to a Jail-Based Program

There is some unclarity viz. the time frame for commitment to a jail-based program. First, consider the language of art.46B.073 (italicized content is mine):

SECTION 14. Article 46B.073, Code of Criminal Procedure, is amended by amending Subsections (b), (c), (d), and (e) and adding Subsection (f) to read as follows:

(b) For purposes of further examination and competency restoration services with [treatment toward] the specific objective of the defendant attaining competency to stand trial, the court shall commit a defendant described by Subsection (a) to a mental health facility, [or] residential care facility, or jail-based competency restoration program for the applicable period as follows:

(1) a period of not more than 60 days, if the defendant is charged with an offense punishable as a misdemeanor; or

(2) a period of not more than 120 days, if the defen­dant is charged with an offense punishable as a felony.

But, in art. 46B.090 and 46B.091 it is stated as follows:

If a “defendant ordered to participate in the pilot program has not been restored to competency by the end of the 60th day after the date the defendant began to receive services [par­ticipate] in the pilot program:

(1) for a defendant charged with a felony, the defendant shall be transferred, without unnecessary delay and for the remainder of the period prescribed by Article 46B.073(b), to the first available facility that is appropriate for that defendant as provided by Article 46B.073(c)”

Thus, while a person charged with a felony may be committed to a jail-based program for a total of 120 days (absent a 60-day extension), if the person is not restored in 60 days, then there is a mandatory transfer to “the first available facility that is appropriate”—which would, then, be an inpatient facility. Note this would include only persons charged with a felony that was not an art. 17.032(a) or a Tex. Penal Code § 22.01(a)(1) offense, as these cases would have been committed to a maximum security facility at the outset. The most problematic issue in this model is that an inpatient program may not be immediately, or even readily, available. In such cases, gains may be lost when the person returns to the originating jail setting, absent the milieu and treatment available in a formal treatment program.

Changes to Mental Health Code

Background: Defendants found incompetent and either unlikely to be restored or not having been restored after treatment may be subject either to a dismissal and transfer to a court having men­tal health jurisdiction (see art. 46B.084(e) and (f)) or a civil commitment with charges pending.

SB 1326 changed one element in Tex. & Safety Code § 574.034—which appertains to temporary court-ordered mental health services. It now reads:

(g) An order for temporary inpatient or outpatient mental health services shall state that treatment is authorized for not longer than 45 [90] days, except that the order may specify a period not to exceed 90 days if the judge finds that the longer period is necessary.

The presumptive period of a temporary order is—as of September 1, 2018—for 45 days, though 90 days may be specified if the court finds that the longer period is necessary. No further standard is provided in the statute.

Summary

The changes effectuated by SB 1326 are complicated and rife for error as applied. Consequently, both courts and counsel are urged to read the statutes rather carefully as implementation begins.

Notes

1. Brian D. Shannon, Prescribing a Balance: The Texas Legislative Responses to Sell v. United States, 41 St. Mary’s Law Journal 309–50 (2009), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1556406.

2. See also Ex Parte Bobby Wayne Woods, 296 S.W.3d 587 (Tex. Crim. App. 2009), Ex Parte Eric Dewayne Cathey, 451 S.W.3d 1 (Tex. Crim. App. 2014).

In this brief article, I am going to focus quickly upon some fundamentals as may appertain to the issue of raising the issue of competency in criminal matters, interweaving special problems, or choke points in the process, of which there are a finite number, but at least ten.

• Issuing orders for competency evaluations of persons not yet charged
• Qualifications of experts
• Issues with report contents
• Report return and handling
• Issues related to mandatory commitment
• Contents of facility packet
• Time frame of restoration order & date commitment begins
• Dealing with restored defendants who decompensate
• Dealing with unrestored defendants; and
• Recognizing implications of an unvacated adjudication of incompetency.

Fundamentals

Raising the Issue

Attorneys have a duty to represent clients with “competence, commitment and dedication to the interest of the client . . .”¹ However, attorneys also have a duty to act so as to protect a client whose capacity, if not competency, is impaired.² Nowhere is this duty more clear than when representing a client who may well be incompetent.³ The Supreme Court has held that it would be a violation of a person’s due process rights for a criminal proceeding to go forward when the person is incompetent. Competency, in Texas, has the statutory definition given in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (“test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him”), though stated in the negative:

(a)   A person is incompetent to stand trial if the person does not have:
        (1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or
        (2) a rational as well as factual understanding of the proceedings against the person.
(b)   A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evi­dence.

Tex. Code Crim. Proc. art.46B.003.

I argue that an attorney has a duty to raise the issue of competency if he or she has reason to believe the client may be incompetent. Failure to so do is to jeopardize the client’s rights and dishonor the intent of the law.

The standard to raise the issue is now any credible evidence, and if the court has any concern whatsoever as to the competency of the defendant, it should raise the issue, whether counsel does so or not.⁴ Turner v. State, 422 S.W.3d 676 (Tex. Crim. App. 2013) has a lengthy discussion on this topic: “In making this determination, a trial court must consider only that evidence tending to show incompetency, ‘putting aside all competing indications of competency, to find whether there is some evidence, a quantity more than none or a scintilla, that rationally may lead to a conclusion of incompetency.’ If so, then ‘evidence exists to support a finding [*44] of incompetency,’ and the statutory scheme requires the trial court to conduct a formal competency trial.” Id. at 692–693. This language certainly indicates that the bar is quite low for ordering an evaluation—that there must be “some evidence, a quantity more than none or a scintilla.”

Oddly, and citing both Montoya and Alcott, the Turner court, Id. at 692 n.31, stated that the bona fide doubt standard is the same as a “suggestion.” Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009) (“suggestion” means the same as bona fide doubt under former statutory provisions; hence,
“[i]f a trial judge has a bona fide doubt about the competency of the defendant, he or she shall conduct an informal inquiry to determine if there is evidence that would support a finding of incompetence”); cf. Alcott v. State, 51 S.W.3d 596, 600–601 (Tex. Crim. App. 2001) (under the former statutory scheme, bona fide doubt triggered competency inquiry during which the trial court must determine whether there is “some evidence” to support a finding of incompetency so as to trigger a formal competency hearing). I would argue that the reference to a “bona fide doubt” in the mind of the trier of fact refers to the degree of certitude or lack thereof that the court has about the likelihood of incompetency. Whereas a “suggestion” of evidence from any source is somewhat more external to the trier of fact, somewhat more objective, than the statement about doubt in the judge’s mind. In any event, however, whether or not the bona fide doubt standard is the same as a suggestion, “a quantity more than none or a scintilla” represents very little evidence required to trigger an order for a competency evaluation. This is said, notwithstanding the fact that in Texas, competency to proceed pro se requires a higher standard.⁵

As a quick aside, there are six standards of evidence in 46B.

• That quantum of evidence required to raise the issue of incompetency, triggering an informal inquiry by the court—i.e., a mere suggestion.
• Evidence obtained in informal inquiry sufficient to warrant an order for a competency evaluation—i.e., a suggestion of evidence from any credible source, more than a scintilla.
• Evidence required for a court to defeat the presumption of competency—i.e., a preponderance of the evidence.
• Evidence necessary for a mental health civil commitment by a criminal court in 46B.102 of a person either found un­likely to be restored, or sent for restoration and not restored, though with charges yet pending—i.e., clear and convincing evidence.
• That evidence required for a mental retardation civil commitment in 46B.103 of a person either found unlikely to be restored, or sent for restoration and not restored (due to mental retardation/intellectual developmental deficit), though with charges yet pending—i.e., beyond a reasonable doubt.
• Evidence necessary for a court to find a person competent who is subject to an unvacated adjudication of incompetency—i.e., in his/her most recent prior case, the defendant was found either incompetent and unlikely to be restored, or incompetent and though sent for restoration, was not restored, also beyond a reasonable doubt (more about this will be said).

Issue: Competency Evaluation Orders for Persons Not Yet Charged

When persons are charged by information, as in the case with misdemeanants, there is no problem. When a person is held on probable cause pending indictment by a grand jury—requiring an indictment to go forward—then problems tend to arise. This is especially the case in smaller counties where grand juries meet less often.

The scenario that occurs is one where the defendant is ob­viously disturbed in the jail, and though counsel has been appointed, there is not yet a formal charge. Upon notice to the court, a competency evaluation is ordered. The defendant is then examined for competency to proceed upon a criminal case that is not yet existing. If opined “not competent,” 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 nonexistent 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 sentenced 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 there is no basis for transfer to a court having civil jurisdiction as would otherwise exist under Tex. Code Crim. Proc. art. 46B.151. Jail staff will often ask the arresting officer/entity to drop any pending charge.⁶

Issue: Qualifications of Examiner

Either a psychiatrist or psychologist—qualified by forensic board certification, or by training, and with appropriate continuing education—may be appointed to examine a defendant. The examiner must not, however, be involved with treatment of the defendant.⁷ Note that the same examiner can conduct both a competency and sanity evaluation since, for the sake of economy, they can be conducted at the same time, inasmuch as a sanity evaluation requires a competency appraisal as a predicate. No sanity examination may be conducted if the defendant is opined “incompetent.”⁸ It would be wise to ask court administration to keep a database of competency orders, date issued, date the report is received, examiner, type of report, and opinion—as tracking these cases is essential for docket management.

Note that a recent Amarillo case, Pham v. State, 463 S.W.3d 660 (Tex. App.—Amarillo 2015, pet. ref’d), held—badly I believe—that inasmuch as the state’s expert was not a court-appointed expert, he need not meet the qualification requirements of 46B.022, though the court in its discretion should so require. This represents a legislative issue that needs to be addressed, else the state would be in the position of requiring one standard for independent examinations and a lower standard for retained examinations. Attorneys should always argue for the higher standard.

Issue: Report Contents

Too many reports offer bare opinion and do not address the statutorily mandated issues of Articles 46B.024 and 46B.025. Those statutorily mandated areas include the following:

1.  The capacity of the defendant during criminal proceedings to:
     a)   rationally understand the charges and the potential consequences of the pending criminal prosecution,
     b)   disclose to counsel pertinent facts, events, and states of mind,
     c)   engage in a reasoned choice of legal strategies and options,
     d)   understand the adversarial nature of criminal proceedings, exhibit appropriate courtroom behavior, and testify.
2.  Whether the defendant has a diagnosable mental illness or is a person with intellectual disability, whether the condition has lasted or is expected to last continuously for a period of at least one year, and the degree of impairment resulting from same on his/her capacity to engage with counsel in a reasonable and rational manner.
3.  If the defendant is taking psychoactive or other medications. Whether same is necessary to maintain competency, and the effect of the medication on the defendant’s appearance, demeanor, or ability to participate in the proceedings.

In Turner v. State, supra, the court ultimately ordered four evaluations of a defendant, all of which acknowledged the defendant’s nastiness, character problems, and his delusions (though with equivocal language). All spoke to the issue of a rational and factual knowledge of the proceedings, but none adequately addressed the issue of the defendant’s ability to assist counsel with a reasonable degree of rational understanding. The Court of Criminal Appeals ordered the issue re-assessed. The conclusions to be drawn from this appeal are multifold, but in the very least: (1) the court does not need timid examiners but rather those who are willing to share an opinion unambiguously and clearly; and (2) the court also needs examiners who will address all the statutory elements relating to the competency standard, not only the rational and factual knowledge, but also the ability to assist prong.

Contested competency hearings are infrequent events usually reserved for cases where one party sees significant tactical advantage in a finding of incompetency. In truth, because the defendant gets time credits for restoration treatment,⁹ an incompetency finding provides some delay to proceedings but has little additional effect—other than the costs to the county mental health authority for the state hospital bed. Should a hearing be requested, however, a jury is to be provided upon request of either party, and the verdict must be unanimous.¹⁰

Issue: Opinion on Likelihood of Restoration in the Foreseeable Future

Competency reports commonly address whether there is evidence of incompetency related to the presence of a mental dis­ease or defect that would interfere with defendants’ ability to ei­ther relate to counsel with a reasonable degree of rational un­der­standing or impinge in some fashion upon the defendants’ ability to exhibit a rational and factual knowledge of the proceedings against them. Most examiners are now aware of 46B.024 and 46B.025 and the necessity to identify whether the defendant exhibits a deficit due to mental illness or, using the older term, mental retardation (now intellectual disability). Many, if not most, also acknowledge the necessity to identify treatment options that might be efficacious in restoration of competency. Few, however, appreciate that if a defendant is opined “not com­petent,” then there is also an absolute necessity to include within a competency appraisal an opinion on the likelihood of restoration within the foreseeable future.

The necessity for this opinion statement—and a corresponding finding by the court—cannot be overstated since 46B.071(b) would prohibit committing a defendant for restoration if the defendant is not likely to be restored to competency in the foreseeable future. Rather, the court is statutorily mandated to proceed under subchapters E (civil commitment: charges pending) or F (civil commitment: charges dismissed), or release the defendant on bail as permitted under Chapter 17.

The rationale for this legislation is twofold, one legal the other practical. In Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), the Court held that a defendant may be confined for restoration purposes only as long as may be necessary to determine whether he is likely or not to be restored, and all subsequent commitments must be strictly civil in nature. Consequently, the logic of Jackson is that if a person is not likely to be restored, the proceedings must move in a different direction. Texas has codified that principle. Similarly, and practically speaking, because the average costs of a restoration program vary between $27,000 and $35,000, and require, on the average, from 55 to 101 days, few counties are willing to expend such sums when the defendant is unlikely to be restored. Such would not only be constitutionally impermissible, but statutorily impermissible, not to say costly.

The question arises, however, “What is the meaning of ‘foreseeable’ as used in this context?” Upon what time frame should an examiner rely to offer an opinion as to whether the defendant is likely to be restored in the foreseeable future? There is no case­law on point to answer this question, but a plain reading of the statute provides a rational answer.

First, note that but one commitment for restoration and one extension is permitted as may relate to a single charge.¹¹ Article 46B.080 states that such a commitment would include the primary period of time allotted for restoration plus a possible 60-day extension at the request of the facility.

Second, the restoration period allotted to persons charged with misdemeanor offenses is a maximum of 60 days, with a possible 60-day extension.¹² In the case of persons charged with a felony offense, the allotted period is 120 days with a possible 60-day extension.

Given the foregoing, it is reasonable to conclude that the maximum period of time available to the courts in connection with the offense charged constitutes the “foreseeable” future. To be sure, a defendant who is unrestored and yet subject to civil commitment with charges pending may be examined at some future date, and if opined “competent” and so found by the court, the matter may yet go forward. This period of time, however, is uncertain and not foreseeable with any degree of certitude.

The net result of the reasoning herein is that examiners must provide an opinion on the likelihood of restoration in the foreseeable future, where “foreseeable” means, as stated above, that period of time available to the court in connection with the matter before it. Failure to include this opinion should be met by a motion and order for amendment of the report.

Issue: Report Return and Handling

Pursuant to Article 46B.026, reports shall be provided to the court and to both parties not later than the 30th day after the date on which the examiner was ordered to examine the defendant.

More problematic is how the report is handled upon return to the court. There has been much misunderstanding about the lack of confidential nature of competency evaluations—such that reports are often squirreled away in a coordinator’s private file and never made part of the record. Should the case go up on appeal, the record is incomplete and the reports are difficult to locate.

In point of fact, these reports, albeit containing much per­sonal information, are public records of a private nature and should be filed with the record in the matter, albeit with restricted access and/or sealed. Note that there is no physician nor mental health privilege in criminal matters such that once a criminal charge is involved, no claims of confidentiality or privilege could be invoked.

Issue: Restoration Commitments Are Mandatory

Important to appreciate is that if a defendant is found incompetent to stand trial, then absent release to an outpatient- or jail-based restoration program, the defendant must be committed to an inpatient mental health facility.¹³ Counsel are often surprised or dismayed when a defendant, having been released on bond, is found incompetent and the court immediately revokes the bond and takes the defendant into custody. In fact, if the defendant is charged with an offense listed in Article 17.032(a), other than an offense listed in Article 17.032(a)(6), or the indictment alleges an affirmative finding under Section 3g(a)(2), Article 42.12, then commitment to a maximum security facility is mandatory. Note that the Department of State Health Services has established a clearinghouse for commitments at Vernon State Hospital, so the hospital liaison person for the courts must immediately call that entity, provide the requisite information, and get the person on the waiting list for transfer. The clearinghouse will locate the bed and advise the sheriff’s office of transfer.

In addition, no restoration commitment is appealable. See art. 46B.011.

Issue: Facility packet

Art. 46B.076 provides that upon a commitment for restoration, the court shall provide to the facility the following enumerated items:

• Reports of experts
• Any mental health treatment reports
• Copies of the indictment or information
• Defendant’s criminal history (note that ADAs may have been instructed not to provide criminal history information; however, the statute requires such)
• Names and addresses of counsel
• Transcript of any medical testimony, if given.

Issue: Time frame of Restoration Order and Date Commitment Begins

A perennial problem has to do with confusion as to when the term of a restoration commitment begins—i.e., with the date of the signing of the order or the date of transfer. Again, while there is no specific case law on point, the statute is relatively clear. A defendant is committed for “examination and treatment” for a period of either not more than 60 days or 120 days with a possible 60-day extension. A commitment for “evaluation and treatment” reasonably begins upon the inception of treatment—ergo, upon the date of transfer to the mental health facility.

Note that the court may find it helpful to maintain a database that includes the date of booking, the date of the order of commitment, and the date of transfer to the facility. Facilities often are puzzled on these matters and have staff who are not attuned to legalities. The staff may not realize that a defendant charged with a Class B misdemeanor, who can be subject to confinement for a maximum period of 180 days, was transferred to the facility on the 125th day and will time out before the ex­pi­ra­tion of the commitment itself. (Recall that defendants get time credits for confinement in hospitals as well as jail.¹⁴)

Issue: Dealing with Restored Defendants Who Decompensate

An all-too-common problem is that of defendants who have been committed for restoration and who, in fact, are restored—only to return to the county jail, refuse to take medications, and again decompensate.

Inasmuch as Article 46B.085 permits only a single commitment for restoration in connection with a cause and one extension, subsequent re-commitments are prohibited in connection with the same offense. Courts and counsel are frequently flummoxed as to how to respond in this circumstance, and facilities, unfortunately, all too often do not object when the person is re­turned.

Two options, however, exist:

a)  Institution of forced medication under the Health & Safety Code § 574.106, or, if that fails, under Tex. Code Crim. Proc. art. 46B.086
b)  If re-commitment is the only option, then Art. 46B.102/103 become the means to accomplish such.

Issue: Unrestored Defendants

As noted, Art. 46B.085 permits only one commitment for restoration in connection with a specific charge. A relatively small number of cases result in a defendant who is found incompetent, sent for restoration, but not restored (about 15%). Again, the statutes contemplate but two alternatives:¹⁵

(a)  Dismissal of the case and transfer of the defendant to a court having mental health jurisdiction, under 46B.151, or
(b)  Civil commitment—by the criminal court—under Tex. Code Crim. Proc. art. 46B.102 (mental illness) or 46B.103 (intellectual disability).

As noted earlier, when the defendant is committed for restoration and opined to be unrestored, the court must proceed under Subchapters E or F. However, if after restoration treatment, then by the terms of 46B.084, the court may make a finding on the basis of the report without a hearing, there being no objection within 15 days. But if the facility opinion is that the person remains unrestored, and the matter not dismissed, the court shall also proceed under Subchapter E—which means civil commitment with charges pending. Dismissal includes holding the defendant briefly until the court having mental health jurisdiction can issue a transport order, and Emergency Detention Order for purposes of evaluation. Note that it is improper under the Local Gov’t Code, the Health & Safety Code, as well as in case law and an AG opinion, to house mentally ill persons in jail during the pendency of civil proceedings. In some urban counties, this prohibition is not well known. The liability to the county for housing persons in jail with no charges against them is substantial, and attempts to explain to DOJ why an injury-in-custody or even a death-in-custody occurred to a person for whom there was no legally based order confining the person, are ineffective.

A comment about 46B.102/103 proceedings: A 46B.102 proceeding is a civil commitment on the basis of mental illness, whereas a 46B.103 commitment is on the basis of intellectual dis­ability. There are two different standards of evidence associated with these commitments—clear and convincing for mental illness and beyond a reasonable doubt for intellectual disability.¹⁶

Because these commitments are procedurally intensive, and rely upon the Health & Safety Code criteria for court-ordered mental health (or intellectual disability) services,¹⁷ it is incumbent upon all counsel, both the state and defense, to be familiar with these requirements and be prepared to instruct the court. Both a protocol and checklists for these proceedings are available from the author. Note that both inpatient and outpatient commitments can result in 46B.102 proceedings, though 46B.103 (intellectual disability) proceedings are more likely to be residential in nature.

Issue: Unvacated Adjudication of Incompetency

Two serious problems occur when a defendant is unrestored, ultimately released to the community, and then returned facing yet another charge—the first, strictly procedural, and the second, having to do with examinations related thereto.

A defendant who was found incompetent, sent for restoration (or not sent because he was found unlikely to be restored in the foreseeable future), and who is subsequently charged with another criminal act, presents as an unvacated adjudication of incompetency. By the terms of Manning v. State, 730 S.W.2d 744 (Tex. Crim. App. 1987), the defendant is now in a very different position:

• This defendant is now presumed to be incompetent. The usual presumption of competency has given way because of the precedential character of a court’s earlier determination that the defendant is no longer competent. Art. 46B.003 describes the common presumption that defendants are presumed to be competent (even if incapacitated under the Texas Estates Code¹⁸).
• There is also a burden shift. Ordinarily, the movant in a competency matter has the burden to prove the defendant incompetent by a preponderance of the evidence. In the circumstance of an unvacated adjudication of incompetency, the State bears the burden to prove that the defendant is com­petent, and the standard of evidence in that regard is beyond a reasonable doubt.

There are several implications of this holding. Such a defendant may not again be sent for restoration treatment (see 46B.07(b))—even on a subsequent charge—unless there is a finding that the defendant is likely to be restored in the foreseeable future. Consequently, it is incumbent upon all parties to ascertain if a defendant was found incompetent in his/her most recent charge and whether or not the person was restored.

Even more interesting is the change that is wrought as may appertain to the conduct of a competency evaluation:

Ordinarily, an examiner is examining to determine if there is evidence to opine that a defendant is incompetent. The degree of certitude in such an opinion will be held in the courtroom setting to be a preponderance of the evidence. Commonly, the examiner’s opinion need not reach a clear and convincing standard or certainly not a beyond a reasonable doubt level. Note, therefore, that in this new circumstance, an examiner must be cognizant of the new fact situation. The examiner may face a not particularly cooperative defendant and conclude that “there is insufficient evidence to defeat the presumption of competency”—which is a somewhat inappropriate, not to say unhelpful, opinion inasmuch as there was no presumption of competency. Thus, if the examiner does nothing whatsoever, the defendant is yet presumed to be incompetent. The net result is that examiners must look for evidence of competency, not incompetency, and must marshal a substantial quantity of evidence to meet a beyond a reasonable doubt standard.

The bottom line is that in these cases, while a re-examination may be appropriate, a special order that incorporates the different presumption and standard of evidence may need to be constructed.

Summary

In the foregoing we have addressed the following issues:

• Issuing orders for competency evaluations of persons not yet charged: Don’t do it.
• Qualifications of experts: Either psychiatrists or psychologists qualified by board certification, or training, and with continuing education hours may be qualified.
• Issues with report contents: Ensure that the statutory issues are addressed and if opined incompetent, especially the necessity for an opinion on the likelihood of foreseeability of restoration.
• Report return and handling: Reports should be returned within 30 days of the order and entered into the court file, albeit with restricted access or sealed.
• Issues related to mandatory commitment. Commitments are mandatory and not subject to appeal.
• Contents of facility packet. Art. 46B.06 contains items that must be in the facility packet—including the defendant’s crim­inal history.
• Time frame of restoration order and date commitment begins: The frames are 60 days with a possible 60-day extension for misdemeanants and 120 days with a possible 60-day extension for felony matters. Important is that the commitment should begin upon the date of transfer to the facility.
• Dealing with restored defendants who decompensate: This area requires reliance upon jail-based mental health services and possibly seeking forced medication orders under the Health & Safety Code. If that fails, then orders may be sought under Art. 46B.086. Only if these efforts fail would we move forward with a 46B.102/103 commitment.
• Dealing with unrestored defendants. Dealing with unrestored defendants requires reliance either upon a 46B.151 transfer or a 46B.102/103 commitment.
• Recognizing implications of an unvacated adjudication of in­com­petency. A defendant who is unrestored will, upon his/her next charge, be in a circumstance of an unvacated ad­judication of incompetency—now presumed to be incompetent and with a burden shift such that the state must prove competency beyond a reasonable doubt—and examinations must be to the new standard.

Notes

1. Tex. Disciplinary R. Prof’l Conduct 1.01, comment 6.

2. Id., 1.02(g)

3. Note that “competence” is used with reference to the Texas Code of Criminal Procedure, while “capacity” is used in the Texas Estates Code. See, e.g., Tex. Code Crim. Proc. art. 46B.003; Tex. Estates Code Section 22.016.

4. Tex. Code Crim. Proc. art. 46B.004(a).

5. Chadwick v. State, 277 S.W.3d 99 (Tex. App.—Austin 2009), aff’d 309 S.W.3d 558 (Tex. Crim. App. 2010)

6. Ruden, M. G.; Jennings, F. L.; Maselli, J. Prophylactic Competency Restoration: Rare But Occurring in Texas. Voice for the Defense Online, 2013.

7. Tex. Code Crim. Proc. art. 46B.021(c)

8. Id., 46B.025(c)

9. Id., 46B.009

10. Id., 46B.051; 46B.052

11. Id., 46B.085

12. Id., 46B.073

13. Id., 46B.071

14. Id., 46B.009, 46B.0095

15. Id., 46B.084

16. See Tex. Health & Safety Code §§ 574.034(a), 574.035(a), and 593.050.

17. Id.

18. Koehler v. State, 830 S.W.2d 665 (Tex. App.—San Antonio 1992, no pet.), see also Leyva v. State, 552 S.W.2d 158, 160 (Tex. Crim. App. 1977); Ainsworth v. State, 493 S.W.2d 517, 522 (Tex. Crim. App. 1973).

Preface

Both courts and counsel are the statutory recipients of competency reports conducted by court-appointed examiners.¹ Oft times the reports appear to be written in Sanskrit and are unintelligible either because of reliance on technical language to describe ordinary matters or because statutory elements are not addressed.²

In this article, we will look at the critical elements of competency that should be addressed by examiners and discussed in any competency report.

What Competency Is

The legal definition of competency is succinct and phrased in the negative—e.g., see Tex. Code Crim. Proc. Ann. art. 46B.003:

“Art. 46B.003. INCOMPETENCY; PRESUMPTIONS. (a) A person is incompetent to stand trial if the person does not have:

(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or
(2) a rational as well as factual understanding of the proceedings against the person.

(b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.”

More descriptively, however, competency should be thought of as a set of functional abilities that are task specific, and fluid— i.e., varying over time. A person is competent to perform specific tasks and may be competent in one arena, but quite incompetent in another. For example, few skilled attorneys are competent to perform neurosurgery, or prepare well-flavored barbecue for that matter. Competency in one domain may or may not be transferable to another, just as very facile litigators may not necessarily be competent appellate lawyers, though one area could inform the other. In trial, competency means that mere possession of rudimentary knowledge of procedures must be augmented with an ability to articulate the application of that knowledge in a specific case, and relate to counsel.³

As well, competency varies over time—just as skill in a sport activity, such as skiing, can vary over time, so would the knowledge of a defendant who is mentally ill and whose illness interferes with his/her capacity to think rationally.

What Competency Is Not

Competency to stand trial—in the present moment—is to be distinguished from sanity, which relates to the defendant’s state of mind at the time of the offense.⁴ These are different concepts, and relate to different points in time. Whereas competency applies to the defendant’s present knowledge of trial matters and his/her ability to assist counsel, sanity narrowly refers to the state of mind of the defendant at the time of the act with which charged. And more specifically, was the person suffering under such mental disease or defect that he did not know his conduct was wrong? These two states of mind may be far apart in time. It is quite possible to be incompetent now, but sane at the time of the offense and vice versa.

Competency to stand trial is also no measure of wisdom or general knowledge, though the obverse is also true—i.e., lack of general knowledge is not necessarily incompetence.⁵ If a defendant is unaware of some particular piece of legal knowledge, but quite capable of learning it if instructed, the person may or may not be deemed incompetent, depending upon the extent to which instruction can be offered quickly, as opposed to requiring some period of time and more formal instruction.

Nor, for that matter, is incompetence established by the mere presence of any particular diagnosis; neither psychosis nor mental retardation (now called an intellectual and developmental disability (IDD)) are dispositive of competence.⁶

At the same time, competency is not necessarily demonstrated by the defendant’s ready agreement with statements of counsel. In fact, too-ready acquiescence—just as too easily aroused negativism—may be indicia of lack of competence.

Collateral Information

Evaluations by experts conducted in a vacuum, without any collateral information whatsoever, are of little value. It goes without saying that unless the examiner is cognizant of the nature of the charges against the defendant, no opinion about the defendant’s capacity to appreciate the same is possible. Consequently, the statute requires that the expert be provided information “relevant to a determination of the defendant’s competency, including copies of the indictment or information, any supporting documents used to establish probable cause in the case, and previous mental health evaluation and treatment records.”⁷

In rare instances, a competence evaluation must be done without an interview with the defendant. This might be the case when a defendant refuses to speak with the evaluator, is only minimally cooperative with the evaluation, or is too impaired to participate in an interview. With sufficient collateral information, it may nonetheless be possible to render an opinion on the ultimate issue. For example, this might be the case if a defendant refuses the interview but there is a multitude of collateral information demonstrating that the person does not have, and has never had, a significant mental illness or intellectual disability. Such a report would obviously not contain quotes from the defendant demonstrating factual or rational understanding relative to the case at hand. It would then be up to the trier of fact to determine if the evidence presented by the evaluator met the preponderance standard.

Rendering such opinions is permissible both under the Rules of the Texas State Board of Examiners of Psychologists and the Specialty Guidelines for Forensic Psychology (2011), provided the limitations are clearly stated in the report. Art. 46B.025(a-1) prohibits the examiner from rendering an opinion solely on the basis of the defendant’s refusal to communicate, but the caveat above is “with sufficient collateral information.” Note, however, that intentional behaviors by defendants that are calculated to increase the likelihood of being found incompetent may result in sentencing enhancement. The opinion of the senior author in this article (MAC) was discussed in just such a circumstance. See United States v. Greer.⁸ In this case, the defendant entirely refused to speak with the evaluator.

Transparency

While Tex. Code Crim. Proc. art.46B.024 and .025 address the content of reports, it is incumbent upon examiners to exhibit transparency with regard to any and all sources upon which re­lied. Rule 705 of the Texas Rules of Evidence states that experts may be required to disclose the facts or data underlying expert opinion, and given the specificity of Art. 46B.024 and .025, there is every reason to disclose:⁹

• All documents reviewed;
• All persons interviewed;
• Any and all tests or procedures utilized; and
• Education, training and experience of the examiner relevant to the forensic services offered.¹⁰

This disclosure may be required by the Rules of Evidence,¹¹ but also by the Specialty Guidelines for Forensic Psychology (2011).¹² Total transparency in the evaluation process would necessitate listing all sources, all documents reviewed, all persons interviewed, and all tests or procedures used.

Documentation of Consent/Disclosure

Health providers commonly have a duty to obtain the fully informed consent of all persons who are either patients or subjects of evaluation. This duty is established by statute as well as rule.¹³ Competency evaluations, however, are of a different kind, and while it is possible that counsel may seek an ex parte order for such an evaluation wherein the participation of the defendant would be somewhat more voluntary, Art. 46B.021 contemplates that the evaluation is court-ordered and that the expert must state an opinion (Art. 46B.025) or explain why no opinion was given. In short, the consent of the defendant is not required. As a result, the burden on the examiner is to document making a good faith effort to advise the defendant as to the conditions of the evaluation, even if the individual is not capable of comprehending the disclosure. These conditions would include:¹⁴

• The purpose of the evaluation, and who requested it
• Who will have access to the information
• The limits of confidentiality
• Who employs the evaluator
• Who pays fees
• The approximate length of time to prepare a report.

Content of Report

A discussion of the contents of any competency examination must address the scope of the report itself and specifically that this examination is very focused, addressing specific statutory items, and including only clinical information directly relevant to the issue before the court. As such, a competency report is not a traditional clinical evaluation. In the more traditional evaluation, examiners may want to include a plethora of information about the defendant’s personal, educational, vocational, medical, and psychiatric history. Whereas, a shorter report that includes rudimentary and limited information about those areas may be more appropriate for purposes of evaluating competence. Put simply, reports that are excessively lengthy are to be eschewed—and very likely not read in their entirety. Information contained in an overly lengthy report may be more prejudicial than the probative value of the issue to be addressed.

Art. 46B.024 identifies factors to be considered in a competency examination. While, for the sake of clarity, some examiners may find it helpful to enumerate these areas, thus citing the statute,¹⁵ other examiners prefer to integrate each of the issues into the report itself without necessity for separation or division of the report or to integrate the elements into the sections specified by Dusky.

For example:

“Tex. Code Crim. Proc. art. 46B.024 requires that examiners consider specific factors in an assessment of competency:

(1) the capacity of the defendant during criminal proceedings to:

(A) rationally understand the charges against the defendant and the potential consequences of the pending criminal proceedings . . .”

With regard to this issue, and in order to be most helpful to the court, the examiner might provide specific examples illustrating the defendant’s knowledge of the charges against him—e.g., “The defendant stated he was charged with aggravated assault, and said that he believed he could face a sentence of 2–20 years of confinement.”

Important, however, is that reports are not constructed so as to describe defendant responses in some rote manner, such that any negative response on any one of the 46B.024 issues is ipso facto evidence of incompetency, as when a person claims a poor memory for events and is immediately opined to be incompetent.

The central issues to be addressed by a competence evaluator are whether the defendant has the necessary functional abilities (enumerated above) to have a factual and rational understanding of the proceedings and to be able to rationally consult with counsel in formulating a defense. If the individual does not have these abilities, the next question is whether the deficits are due to mental illness or Intellectual Disability. The evaluator must provide enough evidence for the trier of fact to make an independent decision on the issue of trial competence.

Factual Understanding

This is probably the most basic element of competence. As suggested above, the evaluator could demonstrate a defendant’s factual understanding with simple, straightforward quotations from the defendant such as: “The judge controls the courtroom and decides on sentencing.” Alternatively, a defendant may initially claim to have no idea what a judge does, but later explain in detail what the judge did in a previous case. A defendant may know his exact charge and possible sentences. However, he may have no idea which of the many offenses mentioned at the time of his arrest are actually being pursued. He may also have no idea what prison time could result if convicted. But he may be well aware that he needs to ask his attorney, who will be able to provide this information. On the other hand, the defendant’s responses to queries may seem nonsensical, such as “assault is what happens on the asphalt . . . I was a road runner but never in the movies.” Or, a defendant might express a delusional belief that although his charge says “burglary,” he is secretly being charged with treason so the president can arrange for his execution. In such an instance the evaluator could explain that loose associations and/or delusional beliefs are symptomatic of the thought disorder from which the person suffers.

Rational Understanding

Rational understanding has never been clearly defined by the courts, but it is assumed to involve the ability to reason and make reasoned choices. A rational understanding might be dem­onstrated by explaining what evidence and witnesses the prosecutor might use against him in court. However, a competence evaluator should avoid questions that might tempt a defendant to make incriminating statements and may choose to present hypothetical scenarios similar to the current offense and explore the individual’s reasoning about evidence, witnesses, and defenses. The evaluator may also explore rationality by asking about testimony in general: What are the advantages and potential disadvantages of having a defendant testify? The same could be done with the concept of plea bargaining: How would a defendant decide to accept or reject a particular offer? It would be important for an evaluator to report any bizarre or grossly irrelevant statements made by the defendant in this process. If a statement appeared irrational on the surface, how did the defendant explain it? For example, a defendant may say he would rather have prison time than probation, but then explain that he has been on probation before, always violates it, and then spends even more time in prison—he would rather just get it over with and be free and clear, without restrictions.

On the other hand, if a defendant lacks the ability to rationally understand his case or court proceedings, the evaluator would need to explain exactly how this links to his mental problems. For example, the defendant may insist that he needs to testify, not about his charges, but to explain the gospel so that the prosecutor will come to Jesus and become a priest. This may be a delusion resulting from a psychotic disorder. Alternately, the defendant may simply appear totally confused by discussion of his case and simply say the prosecutor is a good person who is trying to help him. This may be the direct result of Intellectual Disability that could be demonstrated with the addition of evidence from school records and previous functioning and evaluations.

Ability to Consult with Counsel

To be able to consult with counsel, the defendant clearly must know that the role of his counsel is to assist him in obtaining the most favorable result. A competent defendant may have a cynical view of attorneys and the courts, perhaps saying they are all working together. However, cynicism is not a mental illness. It would be important for the evaluator to report the degree to which the defendant could maintain attention, focus on elements relevant to his defense, and maintain appropriate demeanor during the evaluation. His history of behavior in courtrooms or other public forums could also be significant. It would also be important to demonstrate that the defendant can present self-serving information to his attorney. Can he suggest persons his attorney should contact? Are there records his attorney should obtain (e.g., mental health records)? Are there questions the defendant specifically wishes to explore with his attorney? And, as part of this discussion, does the defendant make any bizarre, nonsensical, or irrational statements? It would be critical for the evaluator to present evidence as to whether the defendant has decisional competence—the ability to reason about and make decisions a defendant must make to proceed with his case. Can he make a reasonable cost/benefit analysis of his various plea options? If the answer is “no,” once again the evaluator must link the lack of functional ability directly to his mental deficits.

Clinical Findings

As stated earlier, a competency evaluation is not specifically a clinical evaluation, and consequently, clinical findings should be limited. Historical review of the defendant’s personal and mental health history should be very focused upon those items specifically relevant to the court’s determination. Moreover, each key piece of information should be identified as to its source.

Diagnoses

Art. 46B.024 asks examiners to opine as to whether the defendant has a mental illness or is a person with mental retardation. However, diagnoses should be used sparingly. Diagnostic nomenclature has long been defined by the DSM, now the DSM V, published by the American Psychiatric Association.¹⁶ Beginning with the DSM IV, in 2000, mental health diagnoses have been offered in multiaxial format—i.e., Axis I referred to the clinical disorders, largely those that were the focus of treatment. Axis II diagnoses referred to more enduring personality characteristics, styles or traits, as well as limitations of intellect. Axis III had to do with medical diagnoses, Axis IV current psychosocial stressors, and Axis V was a global assessment of function. These familiar features are no longer in the DSM V. The changes in DSM V may prove helpful in forensic contexts as examiners will be required to identify whether the person has a mental illness or is a person with mental retardation (now called Intellectual Disability), but without reliance upon a cookbook approach—e.g., three of five criteria, etc. Description of symptoms is more important than global labels, especially in a forensic context. Nonetheless, it is important that the evaluator, who opines a defendant is incompetent, describe a recognized mental illness/intellectual disability and not simply a “syndrome” endorsed by a few practitioners.

In addition, important with regard to forensic evaluations is that the presence of any specific diagnosis is not per se evidence of incompetency, as incompetency has behavioral and cognitive components defined by statute. Diagnoses do aid in establishing the presence of a recognized mental illness or disorder. Diagnoses do provide an explanation for functional deficits. But diagnoses are not exact. Direct or cross-examination of an expert, for example, on the issue of whether the defendant has a schizophrenia or a schizoaffective disorder is less relevant than whether a difference in the diagnosis would predicate a different treatment plan.

Malingering

The term “malingering” is all too often used outside the context of its narrow, technical meaning. Malingering specifically means either creation of symptoms not otherwise existing or exaggerating symptoms that do exist, but in both cases for the purpose of specific advantage to the defendant. Such advantages need to be external, such as a presentation of symptoms in the hope of securing a transfer to what is perceived as better housing, or sig­nif­i­cant mitigation of sentencing, or even exculpation, as in being found not guilty by reason of insanity. The advantages may also be more psychological, such as generation of much at­ten­tion and sympathy. The advantages tend to be situationally de­ter­mined and goal specific.¹⁷

Because malingering has such a pejorative aura, the term “response style” has come into vogue as a broader and more in­clusive term, inasmuch as the presupposition of the use of “malingering” is that the subject’s behavior is conscious and intentional. Whereas, “response style” could include persons whose behaviors are far less intentional, such as in someone sim­ply trying to emphasize the need for help. The identification of a response style that may be affecting performance is quite dependent upon collateral information—e.g., descriptions from correctional or treatment staff as to the manner in which the defendant behaves when not in an evaluation context. A defendant who is confused and unable to read or make sense might well be seen as significantly exaggerating nonexistent deficits if collateral information describes the person as playing cards or dominos on the treatment unit, reading, etc.

Any discussion of malingering or response style must include a careful examination of the defendant’s history. Are the individual’s current symptoms consistent with past behavior/cognitions? In some cases, psychometric instruments (e.g., the Structured Inventory of Reported Symptoms, the Validity Indicator Profile) can provide an additional piece of evidence, but would never be dispositive in and of themselves.

Linking Psychological Deficits and Legal/Functional Deficits

Forensic evaluations are specifically designed to assist the trier of fact in making a legal determination. Consequently, every item in a report, and every conclusion in a report, should be relevant to the legal issue before the court. To be sure, as cited in Graham v. State, opinions of a mental health expert are but opinions, to aid the trier of fact, and a court may accept some of an expert’s opinion, all of it, or none of it.¹⁸ In Texas, the examiner is required to offer an opinion on the ultimate issue—i.e., competency—however, the weight given to that opinion is a matter for the trier of fact.¹⁹ If an examiner opines that a defendant is incompetent and the court so finds, then the mandatory statutory outcome of such a finding of incompetency is commitment to a mental health program for competency restoration.²⁰ By the Texas Constitution, no person may be committed for men­tal health treatment save on “competent medical or psychiatric testimony.”²¹ On the basis of Graham et al., the trier of fact could find a person competent despite expert opinion to the contrary. Thus, while incompetency must be established by expert opinion, a finding of competency could be made despite the expert’s opinion.

The issue, however, is that diagnostic labels or technical descriptions or clinical findings are irrelevant unless specifically linked to some functional ability at issue before the court. As earlier noted, reports accompanying persons committed to state facilities often lack such linkage. An example of an inadequate evaluation might read as follows:

The defendant was diagnosed with mental retardation at age 8. He was in special education throughout school and reads only at the 3rd-grade level. IQ scores have ranged from 52 to 68. He answered all questions with “I don’t know.” With such severe intellectual disabilities, he could not consult with counsel, and in my professional opinion, he is not competent to stand trial.

Statutory Abilities

Texas has long adopted the Dusky²² standard for competency, i.e.

(a) A person is incompetent to stand trial if the person does not have:

(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or
(2) a rational as well as factual understanding of the proceedings against the person

In Dusky, the Supreme Court held that “it is not enough for the district judge to find that ‘the defendant [is] oriented to time and place and [has] some recollection of events,’ but that the ‘test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.’” Id.

In Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), the United States Supreme Court specified that the standard for the various types of competency (i.e., competency to plead guilty, to waive counsel, to stand trial) should be considered the same. Justice Thomas wrote for the majority: “The standard adopted by the Ninth Circuit is whether a defendant who seeks to plead guilty or waive counsel has the capacity for ‘reasoned choice’ among the alternatives available to him. How this standard is different from (much less higher than) the Dusky standard—whether the defendant has a ‘rational understanding’ of the proceedings—is not readily apparent to us . . . [W]hile the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial . . . Nor do we think that a defendant who waives his right to the assistance of counsel must be more competent than the defendant who does not, since there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights.” Id., 509 U.S. at 397–399.

As noted, the Code of Criminal Procedure, however, operationalizes the Dusky standard into several abilities, described in 46B.024, which examiners must consider in constructing a report.

Ultimate Issue Opinion

Texas requires an opinion from the examiner as to whether the defendant is competent or not, or “explain why the expert is unable to state such an opinion.”²³ However, an opinion is not merely a “yes” or “no,” but may include caveats clearly allowing the court to make the final decision. For example, an examiner could conclude that the defendant has a factual and rational understanding of the proceedings against him and has the ability to consult with counsel with a reasonable degree of rational understanding; however, should he be required to follow fast-paced courtroom procedures, testify, and be subject to cross-examination, his intellectual abilities probably would not be up to this task. It is then up to the court to determine if this is necessary in the particular case.²⁴

Though there is controversy in other jurisdictions as to whether ultimate issue testimony is proper, in Texas, examiners must offer an opinion on competency or advise the court why such an opinion cannot be stated.²⁵

Treatment

Examiners are required to offer fact statements to the court— i.e., if the defendant “is taking psychoactive medication,”²⁶ and opinion as to whether the medication is necessary for the maintenance of competency, as well as the effect on the defendant’s “demeanor, or ability to participate in the proceedings.”²⁷

Consequently, examiners should possess a sufficient degree of knowledgeability about the use of psychoactive medications and their properties to be able to answer questions from the court. As well, however, the examiner should comment both upon the nature of treatment given or needed as well as the urgency attached. Other issues include whether such treatment should be inpatient or outpatient and whether the defendant is likely to be willing or able to provide informed consent. Of course, upon a finding of incompetency there is a mandatory commitment for restoration, see Art. 46B.073, unless the person is released on bail and ordered to participate in an outpatient treatment program.

In Texas, it is also imperative that an examiner offer an opinion on the likelihood of restoration “in the foreseeable future,” where “foreseeable future” means the time frame available to the court for restoration—i.e., 60 days for misdemeanor cases and 120 days for felony cases, with a possible 60-day extension. Offering this opinion is crucial because Tex. Code Crim. Proc. art. 46B.071(b) prohibits commitment of a defendant for restoration if there is a finding that the person is unlikely to be restored in the foreseeable future. Rather, the court must then proceed under a 46B.102/103 commitment or dismiss, as per Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). Consequently, the court must ensure that examiners offer such an opinion; otherwise there would be no expert opinion evidence before the court on the matter.

Distribution of Report

Tex. Code Crim. Proc. art. 46B.026 states that the examiner’s re­port should be completed not later than the 30th day after the issuance of the court’s order (though on good cause could be delayed). The report itself is to be sent to the court and to counsel for both parties. Often, examiners are not aware of the requirement to provide the report to counsel for both parties. Moreover, defendants sometimes demand copies of the report, but in this instance, have been given constructive notice of the content of the report through submission to counsel. As well, the report belongs to the court and the court controls distribution other than that identified by statute.

Summary

In the foregoing, we have discussed the statutory elements requisite to a competency examination, the elements of disclosure examiners must make to defendants, the necessity for inclusion in a report of all the sources upon which relied, the specific items to be addressed, and the distribution of the report.

Endnotes

1. Tex. Code Crim. Proc. Ann. art. 46B.026.

2. B. Thomas Gray, PhD, Joseph A. Black, MD, Linda K. Fulford, MEd, A. Dale Owen, AAS (2005), Evaluating Trial Competency Evaluations: Impact of Article 46B, Texas Psychologist, Vol. 56, Issue 2. This 2005 study at Vernon State Hospital found that fewer than 5 percent of examinations addressed all components, and almost 20 percent didn’t include even five of the ten statutorily mandated items.

3. See discussion in United States v. Duhon, 104 F. Supp.2d 663 (W.D. La. 2000), citing National Benchbook on Psychiatric and Psychological Evidence and Testimony (ABA Commission on Mental and Physical Disability Law, Sept. 1998), Chapt 7 at 169.

4. Tex. Penal Code § 8.01.

5. Rodriguez v. State, 899 S.W.2d 658 (Tex. Crim. App. 1995).

6. Ex parte Briseno, 135 S.W.3d 1, 5–6 (Tex. Crim. App. 2004); Leyva v. State, 552 S.W.2d 158, 160 (Tex. Crim. App. 1977); Lingerfelt v. State, 629 S.W.2d 216, 217 (Tex. App.—Dallas 1982, pet. ref’d).

7. Tex. Code. Crim. Proc. Ann. art. 46B.021(d).

8. See United States v. Greer, 158 F.3d 228 (5th Cir. 1998); discussed in Kroll, J. L. & Resnick, P. J. (1999), U.S. v. Greer: Longer Sentences for Malingerers, J Am Acad Psychiatry Law, Vol. 27, No. 4.

9. See also American Psychological Association (2011), Specialty Guidelines for Forensic Psychology, 10.07.

10. Id. Sec. 10.01 discusses focusing upon the legally relevant factors.

11. Tex. R. Evid. 703.

12. American Psychological Association (2011), Specialty Guidelines for Forensic Psychology, Sec. 9.02 would discourage reliance upon a single datum; Sec. 10.01 encourages attending only to evidence that is relevant to the case at hand; and 10.06, as well as 11.03, would encourage careful documentation of all sources utilized.

13. See Tex. Health & Safety Code § 313.001 et. Seq.; 22 TAC § 465.11.

14. Id. at 465.11.

15. Art. 46B.024. FACTORS CONSIDERED IN EXAMINATION. During an examination under this subchapter and in any report based on that examination, an expert shall consider, in addition to other issues determined relevant by the expert, the following:

(1) the capacity of the defendant during criminal proceedings to:

(A) rationally understand the charges against the defendant and the potential consequences of the pending criminal proceedings;
(B) disclose to counsel pertinent facts, events, and states of mind;
(C) engage in a reasoned choice of legal strategies and options;
(D) understand the adversarial nature of criminal proceedings;
(E) exhibit appropriate courtroom behavior; and
(F) testify;

(2) as supported by current indications and the defendant’s personal history, whether the defendant:

(A) has a mental illness; or
(B) is a person with mental retardation;

(3) whether the identified condition has lasted or is expected to last continuously for at least one year;

(4) the degree of impairment resulting from the mental illness or mental retardation, if existent, and the specific impact on the defendant’s capacity to engage with counsel in a reasonable and rational manner; and

(5) if the defendant is taking psychoactive or other medication:

(A) whether the medication is necessary to maintain the defendant’s competency; and
(B) the effect, if any, of the medication on the defendant’s appearance, demeanor, or ability to participate in the proceedings.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Acts 2011, 82nd Leg., R.S., HB 2725, eff. Sept 1, 2011.

Art. 46B.025. EXPERT’S REPORT. (a) An expert’s report to the court must state an opinion on a defendant’s competency or incompetency to stand trial or explain why the expert is unable to state such an opinion and must also:

(1) identify and address specific issues referred to the expert for evaluation;

(2) document that the expert explained to the defendant the purpose of the evaluation, the persons to whom a report on the evaluation is provided, and the limits on rules of confidentiality applying to the relationship between the expert and the defendant;

(3) in specific terms, describe procedures, techniques, and tests used in the examination, [and] the purpose of each procedure, technique, or test, and the conclusions reached; and

(4) state the expert’s clinical observations, findings, and opinions on each specific issue referred to the expert by the court, state the specific criteria supporting the expert’s diagnosis, and state specifically any issues on which the expert could not provide an opinion.

(a-1) The expert’s opinion on the defendant’s competency or incompetency may not be based solely on the defendant’s refusal to communicate during the examination.

(b) If in the opinion of an expert appointed under Article 46B.021 the defendant is incompetent to proceed, the expert shall state in the report:

(1) the symptoms, exact nature, severity, and expected duration of the deficits resulting from the defendant’s mental illness or mental retardation, if any, and the impact of the identified condition on the factors listed in Article 46B.024;
(2) an estimate of the period needed to restore the defendant’s competency, including whether the defendant is likely to be restored to competency in the foreseeable future; and
(3) prospective treatment options, if any, appropriate for the defendant.

(c) An expert’s report may not state the expert’s opinion on the defendant’s sanity at the time of the alleged offense, if in the opinion of the expert the defendant is incompetent to proceed.

(d) The court shall direct an expert to provide the expert’s report to the court and the appropriate parties in the form approved by the Texas Correctional Office on Offenders with Medical or Mental Impairments under Section 614.0032(b), Health and Safety Code.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Amended by: Acts 2005, 79th Leg., Ch. 1269 Sec. 1, eff. June 18, 2005. Acts 2011, 82nd Leg., R.S., HB 2725 Sec. 8, Eff. Sept. 1, 2011.

16. American Psychiatric Association. (2013). Diagnostic and Statistical Manual of Mental Disorders (5th ed. Tex rev.). Washington, DC; Author.

17. Richard Rogers, PhD, Michael J. Vitacco, PhD, Samantha J. Kurus, BA, Assessment of Malingering with Repeat Forensic Evaluations, Patient Variability and Possible Misclassification on the SIRS and Other Feigning Measures. J Am Acad Psychiatry Law 38:1:109–114 (March 2010).

18. Graham v. State, 566 S.W.2d 941, 949 (Tex. Crim. App. 1978). “Only the jury can join the non-medical components that must also be considered in deciding the ultimate issue. The ultimate issue of criminal responsibility is be­yond the province of expert witnesses. Were it otherwise, the issue would be tried in hospitals rather than the courts.” Id.

19. Id. at 952.

20. Tex. Code Crim. Proc. art. 46B.073.

21. Tex. Const. art. I, § 15-a; see also Tex. Code Crim. Proc. art. 46B.074.

22. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

23. Tex. Code Crim. Proc. art. 46B.025(a).

24. Id. at art. 46B.025(4).

25. See Tex. Code Crim. Proc. art. 46B.025(a); Fed. R. Evid. 704 ; Bryant v. State, 340 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d): “Opinion testimony that is otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact. Tex. R. Evid. 704; Ex parte Nailor, 149 S.W.3d 125, 134 (Tex. Crim. App. 2004) (describing officer’s testimony that defendant had not been attacked); Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App. 2001) (holding that lay witness properly offered opinion regarding defendant’s criminal responsibility). The admissibility of such testimony is within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. See Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993); see also Conner v. State, 891 S.W.2d 668, 670 (Tex. App.—Houston [1st Dist.] 1994, no pet.).

26. Supra at art.46B.024(5).

27. Id.

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).

Recommendations

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).

Conclusions

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.

Summary

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.

Art. 46B.071. Options on Determination of Incompetency

Art. 46B.071. OPTIONS ON DETERMINATION OF INCOMPETENCY.

(a)  Except as provided by Subsection (b), on [On] a determination that a defendant is incompetent to stand trial, the court shall:

(1)  commit the defendant to a facility under Article 46B.073; or

(2)  release the defendant on bail under Article 46B.072.

(b)  On a determination that a defendant is incompetent to stand trial and is unlikely to be restored to competency in the foreseeable future, the court shall:

(1)  proceed under Subchapter E or F; or

(2)  release the defendant on bail as permitted under Chapter 17.

The issue of lack of foreseeability impacts outcome upon such a finding by the court . In this circumstance, required is either civil commitment with charges pending under Subchapter E, or transfer with charges having been dismissed under Subchapter F. Art. 46B.071 would, however, apply only in those cases where the defendant has not yet served the combination of jail time plus any hospitalization equal to the maximum sentence for the act with which charged.

This section may be a section that will result in appellate review based upon Jackson v. Indiana, 406 U.S. 715 (1972). Jackson was a case of a mentally retarded deaf mute who the court held could not be committed indefinitely save under strictly civil statutes because of an equal protection challenge. The Supreme Court noted that he was subject to a more lenient standard for commitment and a more stringent standard for release than those in strictly civil circumstance, which was impermissible. Similarly, 46B.103—though it is a “civil” commitment—would invoke an indefinite commitment, and while procedurally under civil rules, this type of commitment has significant differences from commitments strictly civil: namely that release from 46B.102/.103 commitments is not effectuated by mere discharge by the attending physician as other civil commitments.

Rather, the criminal court has power to review and veto any proposed discharge. Thus, the revisions to 46B.071 might be subject to a Jackson challenge—though whether such would be successful is not at all clear. The contrary argument is that the criteria for commitment are civil, and that even under such a commitment, the person could not remain longer than the maximum period of time as described in 46B.0095. In any event, such a circumstance should precipitate consultation with one’s appellate section.

Consider the case of a defendant adjudicated incompetent and not restored, and then opined “not foreseeably likely to be restored”—subjected to either 46B.102/103 commitment or transferred under 46B.151—but ultimately released. In his next case, there is now a presumption of incompetency, i.e., there is an unvacated adjudication of incompetency. In this second case, absent any intervening conviction, the State bears the burden to prove competency “beyond a reasonable doubt.” Manning v. State, 730 S.W.2d 744 (Tex. Crim. App. 1987). Whether there would be warrant to continue to pursue charges in such a circumstance is an interesting issue, as well as is whether to again seek restoration treatment. Both are well beyond the scope of this writing; but again, requiring collegial consultation. Careful review of 46B.073, however, reveals that a 46B.073 commitment requires treatment toward the “specific objective of regaining competency” and if the defendant is found unlikely to regain competency in the foreseeable future, then in the interests of economy, other alternatives might be considered.

Art. 46B.072. Release on Bail

Art. 46B.072. RELEASE ON BAIL. (a) This article applies only to a defendant who is subject to an initial restoration period based on Article 46B.071.

(a-1)       Subject to conditions reasonably related to assuring public safety and the effectiveness of the defendant’s treatment, if the court determines that a defendant found incompetent to stand trial is not a danger to others and may be safely a on an outpatient basis with the specific objective of attaining competency to stand trial and if an appropriate outpatient treatment program is available for the defendant, the court:

(1)  may release on bail a defendant found incompetent to stand trial with respect to a felony or may continue the defendant’s release on bail; and

(2)  shall release on bail a defendant found incompetent to stand trial with respect to a misdemeanor or shall continue the defendant’s release on bail.

(b)  The court shall order a defendant released on bail under Subsection (a-1) [(a)] to participate in an outpatient treatment program for a period not to exceed 120 days.

(c)  Notwithstanding Subsection (a-1) [(a)], the court may order a defendant to participate in an out­patient treatment program under this article only if:

(1)  the court receives and approves a comprehensive plan that:

(A)  provides for the treatment of the defendant for purposes of competency restoration; and

(B)  identifies the person who will be responsible for providing that treatment to the defendant; and

(2)  the court finds that the treatment proposed by the plan will be available to and will be provided to the defendant.

(d)  An order issued under this article may require the defendant to participate in:

(1)  as appropriate, an outpatient treatment program administered by a community center or an outpatient treatment program administered by any other entity that provides outpatient competency restoration services; and

(2)  an appropriate prescribed regimen of medical, psychiatric, or psychological care or treatment, including care or treatment involving the administration of psychoactive medication, including those required under Article 46B.086.

This article is, in some ways, only nominally useful. Persons adjudicated incompetent are uncommonly able to participate effectively in a truly “outpatient” program—which lacks the structure to provide food, clothing, shelter, as well as control of a defendant’s ingestion of alcohol or illegal substances. Nor is there means of ensuring medication compliance. If a defendant is adjudicated incompetent, given that competency is a very low standard to achieve, he/she more than likely needs inpatient treatment. This issue arouses little anxiety simply because in Harris County there are no outpatient programs, and very few existent within the state. Moreover, merely releasing a defendant to conventional mental health treatment is not the equivalent of providing restoration treatment: The two should not be confused, as the latter is highly structured, based upon a model accepted nationally, and includes an educational or cognitive component in addition to conventional treatment.

Article 46B.073. Commitment for Restoration

Art. 46B.073. COMMITMENT FOR RESTORATION TO COMPETENCY.

(a)  This article applies only to a defendant not released on bail who is subject to an initial restoration period based on Article 46B.071.

(b)  For further examination and treatment toward the specific objective of the defendant attaining competency to stand trial, the [The] court shall commit a defendant described by Subsection (a) to a mental health facility or residential care facility for the applicable [a] period as follows:

(1)  a period of not more than 60 days, if the defendant is charged with an offense punishable as a misdemeanor; or

(2)  a period of not more than 120 days, if the defendant is charged with an offense punishable as a felony [not to exceed 120 days for further examination and treatment toward the specific objective of attaining competency to stand trial].

(c)  If the defendant is charged with an offense listed in Article 17.032(a), other than an offense listed in Article 17.032(a)(6), or the indictment alleges an affirmative finding under Section 3g(a)(2), Article 42.12, the court shall enter an order committing the defendant to the maximum security unit of any facility designated by the department, to an agency of the United States operating a mental hospital, or to a Department of Veterans Affairs hospital.

(d)  If the defendant is not charged with an offense described by Subsection (c) and the indictment does not allege an affirmative finding under Section 3g (a)(2), Article 42.12, the court shall enter an order committing the defendant to a mental health facility or residential care facility determined to be appropriate by the local mental health authority or local mental retardation authority.

As noted earlier, a restoration commitment is made for treatment “toward the specific objective of the defendant attaining competency to stand trial.” The radical change in this article, however, has to do with the reduction in the period of commitment from 120 days to 60 days for an initial restoration period—applying only to misdemeanants and not to felony defendants. Note that if a defendant had a pending felony and was committed for restoration, in order to ensure that the restoration period was 120 days with a possible 60-day extension, the commitment would need to be related to the felony case and not the misdemeanor only.

While it was pointed out earlier that a local restoration program in Harris County effectuated restoration in less than 60 days, the average restoration period in Rusk State Hospital is slightly less than 100 days. This is because at least 60 days of that period is devoted to initial stabilization—and while not necessary for defendants from Harris County who have 24/7 psychiatric services in the jail, the larger number of smaller counties have no similar services. Thus, their defendants arriving at the state hospital with a psychiatric condition are far less stable than defendants from Harris County who have been treated since booking. But, unless the state hospital dramatically changes their structure for delivery of restoration services, the Class B misdemeanants—if sent—will likely not be restored in 60 days.

Article 46B.0755. Procedures on Credible Evidence of Immediate Restoration

Art. 46B.0755. PROCEDURES ON CREDIBLE EVIDENCE OF IMMEDIATE RESTORATION.

(a)  Notwithstanding any other provision of this subchapter, if the court receives credible evidence indicating that the defendant has been restored to competency at any time after the defendant’s incompetency trial under Subchapter C but before the defendant is transported under Article 46B.075 to a mental health facility, residential care facility, or outpatient treatment program, as applicable, the court may appoint disinterested experts to reexamine the defendant in accordance with Subchapter B. The court is not required to appoint the same expert or experts who performed the initial examination of the defendant under that subchapter.

(b)  If after a reexamination of the defendant the applicable expert’s report states an opinion that the defendant remains incompetent, the court’s order under Article 46B.072 or 46B.073 remains in effect, and the defendant shall be transported to the facility or outpatient treatment program as required by Article 46B.075. If after a reexamination of the defendant the applicable expert’s report states an opinion that the defendant has been restored to competency, the court shall withdraw its order under Article 46B.072 or 46B.073 and proceed under Subsection (c) or (d).

(c)  The court shall find the defendant competent to stand trial and proceed in the same manner as if the defendant had been found restored to competency at a hearing if:

(1)  both parties agree that the defendant is competent to stand trial; and

(2)  the court concurs.

(d)  The court shall hold a hearing to determine whether the defendant has been restored to competency if any party fails to agree or if the court fails to concur that the defendant is competent to stand trial. If a court holds a hearing under this subsection, on the request of the counsel for either party or the motion of the court, a jury shall make the competency determination. For purposes of the hearing, incompetency is presumed, and the defendant’s competency must be proved by a preponderance of the evidence. If after the hearing the defendant is again found to be incompetent to stand trial, the court shall issue a new order under Article 46B.072 or 46B.073, as appropriate based on the defendant’s current condition.

This article is a new article and but provides a procedure with which to deal with the case that either spontaneously, or with treatment, restores in the jail prior to being transported for restoration under 46B.075. Allowed is re-examination either by the same examiner, or another. Note that the article appears to permit the court to find a defendant competent if the parties agree—or after a hearing—regardless of the expert’s opinion. That is, while the expert’s opinion is necessary, it is not solely a matter for the expert to conclude. This is reminiscent of the court’s language in Graham v. State, 566 S.W.2d 941 (Tex. Crim. App. 1978), in which the court stated pithily (though about sanity):

The issue is not strictly medical, and expert witnesses, although capable of giving testimony that may aid the jury in its determination of the ultimate issue, are not capable of dictating determination of that issue. Only the jury can join the non-medical components that must also be considered in deciding the ultimate issue. That ultimate issue of criminal responsibility is beyond the province of expert witnesses. Were it otherwise, the issue would be tried in hospitals rather than the courts.

Art. 46B.077. Individual Treatment Program

This section includes a minor addition that the restoration program to which the defendant is committed has a duty to assess and evaluate whether the defendant is likely to be restored in the foreseeable future.

Art. 46B.079

Art. 46B.079. NOTICE AND REPORT TO COURT.

(a)  The head of the facility or the provider of the outpatient treatment program, as appropriate, not later than the 15th day before the date on which the initial [a] restoration period is to expire according to the terms of the order or under Article 46B.0095 or other applicable provisions of this chapter, shall notify the applicable court that the [restoration] period is about to expire.

(b)  The head of the facility or outpatient treatment program provider shall promptly notify the court when the head of the facility or outpatient treatment program provider believes that:

(1)  the defendant has attained competency to stand trial; or

(2)  the defendant is not likely to [will not] attain competency in the foreseeable future.

(c)  When the head of the facility or outpatient treatment program provider gives notice to the court under Subsection (a) or (b), the head of the facility or outpatient treatment program provider also shall file a final report with the court stating the reason for the proposed discharge under this chapter and including a list of the types and dosages of medications prescribed for [with which] the defendant [was treated for mental illness] while the defendant was in the facility or participating in the outpatient treatment program. To enable any objection to the findings of the report to be made in a timely manner under Article 46B.084(a), the court shall provide copies of the report to the attorney representing the defendant and the attorney representing the state.

(d)  If the head of the facility or outpatient treatment program provider notifies the court that the initial restoration period is about to expire, the notice may contain a request for an extension of the period for an additional period of 60 days and an explanation for the basis of the request. An explanation provided under this subsection must include a description of any evidence indicating a reduction in the severity of the defendant’s symptoms or impairment.

This modification places a duty on the facility to notify the court within 15 days before the restoration period is to expire “according to the terms of the order or under Article 46B.0095 or other applicable provisions of this chapter”—which might well be before the 60/120 period of restoration or the 60-day extension has expired. As well, the facility shall submit a report whenever the facility has reason to believe that the defendant has attained competency or is not likely to attain competency in the foreseeable future.

Art. 46B.080. Extension of Order

Art. 46B.080. EXTENSION OF ORDER.

(a)  On a request of the head of a facility or a treatment program provider that is made under Article 46B.079(d) and notwithstanding any other provision of this subchapter, the court may enter an order extending the initial restoration period for an additional period of 60 days.

(b)  The court may enter an order under Subsection (a) only if the court determines that [, on the basis of information provided by the head of the facility or the treatment program provider]:

(1)  the defendant has not attained competency; and

(2)  an extension of the initial restoration period will likely enable the facility or program to restore the defendant to competency within the period of the extension.

(c)  The court may grant only one 60-day extension under this article in connection with the specific offense with which the defendant is charged [for a period of restoration ordered under this subchapter].

As mentioned at several points, a facility may request an additional 60 period for restoration, but only if it is believed that the defendant will regain competency during the extension period.

Art. 46B.084. Proceedings on Return of Defendant

Art. 46B.084. PROCEEDINGS ON RETURN OF DEFENDANT TO COURT.

(a)  On the return of a defendant to the court, the court shall make a determination with regard to the defendant’s competency to stand trial. The court may make the determination based [solely] on the report filed under Article 46B.079(c) and on other medical information or personal history information relating to the defendant. A[, unless any] party may object [objects] in writing or in open court to the findings of the report not later than the 15th day after the date on which the court received notification under Article 46B.079. The court shall make the determination not later than the 20th day after the date on which the court received notification under Article 46B.079, regardless of whether a party objects to the report as described by this subsection and the issue is set for hearing under Subsection (b).

(b)  If a party objects under Subsection (a), the issue shall be set for a hearing. The hearing is before the court, except that on motion by the defendant, the defense counsel, the prosecuting attorney, or the court, the hearing shall be held before a jury.

(b-1) If the hearing is before the court, the hearing may be conducted by means of an electronic broadcast system as provided by Article 46B.013. Notwithstanding any other provision of this chapter, the defendant is not required to be returned to the court with respect to any hearing that is conducted under this article in the manner described by this subsection.

(c)  Repealed by Acts 2007, 80th Leg., R.S., Ch. 1307, Sec. 21, eff. September 1, 2007.

(d)  If the defendant is found competent to stand trial, criminal proceedings against the defendant may be resumed.

(e)  If the defendant is found incompetent to stand trial and if all charges pending against the defendant are not dismissed, the court shall proceed under Subchapter E.

(f)   If the defendant is found incompetent to stand trial and if all charges pending against the defendant are dismissed, the court shall proceed under Subchapter F.

This section again clarifies that the court is not dependent solely upon the report of the examiner in order to determine competency. Objections to the content of the report, however, must be made within 20 days of the notification to the court concerning the defendant’s status.

Art. 46B.086. Court-ordered Medications

Art. 46B.086. COURT-ORDERED MEDICATIONS.

(a) This article applies only to a defendant:

(1)  who is determined under this chapter to be incompetent to stand trial;

(2) who either:

(A)  remains confined in a correctional facility, as defined by Section 1.07, Penal Code, for a period exceeding 72 hours while awaiting transfer to an inpatient mental health facility, a residential care facility, or an outpatient treatment program;

(B)  is committed to an inpatient mental health facility or a residential care facility for the purpose of competency restoration;

(C)  is confined in a correctional facility while awaiting further criminal proceedings following competency restoration treatment; or

(D)  is subject to Article 46B.072, if the court has made the determinations required by Subsection (a-1) [(a)] of that article;

(3)  for whom a correctional facility that employs or contracts with a licensed psychiatrist, an inpatient mental health facility, a residential care facility, or an outpatient treatment program provider has prepared a continuity of care plan that requires the defendant to take psychoactive medications; and

(4)  who, after a hearing held under Section 574.106, Health and Safety Code, if applicable, has been found to not meet the criteria prescribed by Sections 574.106(a) and (a-1), Health and Safety Code, for court-ordered administration of psychoactive medications.

(b)  If a defendant described by Subsection (a) refuses to take psychoactive medications as required by the defendant’s continuity of care plan, the director of the correctional facility or outpatient treatment program provider, as applicable, shall notify the court in which the criminal proceedings are pending of that fact not later than the end of the next business day following the refusal. The court shall promptly notify the attorney representing the state and the attorney representing the defendant of the defendant’s refusal. The attorney representing the state may file a written motion to compel medication. The motion to compel medication must be filed not later than the 15th day after the date a judge issues an order stating that the defendant does not meet the criteria for court-ordered administration of psychoactive medications under Section 574.106, Health and Safety Code, except that, for a defendant in an outpatient treatment program, the motion may be filed at any time.

(c)  The court, after notice and after a hearing held not later than the 10th day after the motion to compel medication is filed [fifth day after the defendant is returned to the committing court], may authorize the director of the correctional facility or the program provider, as applicable, to have the medication administered to the defendant, by reasonable force if necessary. A hearing under this subsection may be conducted using an electronic broadcast system as provided by Article 46B.013.

(d)  The court may issue an order under this article only if the order is supported by the testimony of two physicians, one of whom is the physician at or with the applicable correctional facility or outpatient treatment program who is prescribing the medication as a component of the defendant’s continuity of care plan and another who is not otherwise involved in proceedings against the defendant. The court may require either or both physicians to examine the defendant and report on the examination to the court.

(e)  The court may issue an order under this article if the court finds by clear and convincing evidence that:

(1)  the prescribed medication is medically appropriate, is in the best medical interest of the defendant, and does not present side effects that cause harm to the defendant that is greater than the medical benefit to the defendant;

(2)  the state has a clear and compelling interest in the defendant obtaining and maintaining competency to stand trial;

(3)  no other less invasive means of obtaining and maintaining the defendant’s competency exists; and

(4)  the prescribed medication will not unduly prejudice the defendant’s rights or use of defensive theories at trial.

(f)   A statement made by a defendant to a physician during an examination under Subsection (d) may not be admitted against the defendant in any criminal proceeding, other than at:

(1)  a hearing on the defendant’s incompetency; or

(2)  any proceeding at which the defendant first introduces into evidence the contents of the statement.

(g)  For a defendant described by Subsection (a)(2)(A), an order issued under this article:

(1)  authorizes the initiation of any appropriate mental health treatment for the defendant awaiting transfer; and

(2)  does not constitute authorization to retain the defendant in a correctional facility for competency restoration treatment.

Modifications to this section but extend the period of time in which to hold a hearing on a motion to compel from five to ten days.

The issue of court-ordered medications is, however, very cumbersome—requiring a two-step process of seeking authorization in a civil court; only after failure in such a proceeding may 46B.086 be invoked. Discussion of that issue is beyond the scope of this writing. However, it is important to add that HB 748 amends the Health & Safety Code in a significant manner:

Section 574.110(b), Health and Safety Code, is amended to read as follows:

(b)  An order issued under Section 574.106 for a patient who is returned to a correctional facility, as defined by Section 1.07, Penal Code, to await [awaiting] trial in a criminal proceeding continues to be in effect until the earlier of the following dates, as applicable:

(1)  the 180th day after the date the defendant was returned to the correctional facility;

(2)  [expires on] the date the defendant is acquitted, is convicted, or enters a plea of guilty; or

(3)  the date on which charges in the case are dismissed. [An order continued under this subsection shall be reviewed by the issuing court every six months.]

The foregoing section is not included in HB 2725 whatsoever, but has helpful implications for management of a defendant who needs, but is refusing, psychoactive medication. The section referenced is Tex. Health & Safety Code § 574.106—which is the statute delineating procedures for pursuit of court-ordered medications through the Probate Courts. With this modification, should the state hospital seek a court order to authorize administration of psychoactive medications to a person adjudicated incompetent and receiving restoration treatment, then, if granted, that order would “follow” the defendant back to Harris County and remain valid for 180 days. The impetus for this modification are the cases in which persons are stabilized on medication while receiving restoration treatment but then refuse medication upon return to the county, virtually ensuring that the person would again decompensate and become incompetent. And given that there is but one opportunity for restoration (see art. 46B.085), such would delay proceedings unnecessarily, if not provoke dismissal.

Art. 46B.101. Applicability (Relating to Civil Commitment with Charges Pending)

Art. 46B.101. APPLICABILITY. This subchapter applies to a defendant against whom a court is required to proceed according to [under] Article 46B.084(e) or according to the court’s appropriate determination under Article 46B.071.

This section references the criteria for civil commitment by the criminal court as delineated in 46B.084(e) or 46B.071. Art. 46B.084(e) reads:

If the defendant is found incompetent to stand trial and if all charges pending against the defendant are not dismissed, the court shall proceed under Subchapter E.

On the other hand, Art. 46B.071, as earlier described, permits reliance on this subchapter for persons found incompetent but unlikely to be restored in the foreseeable future—and authorizes civil commitment (albeit under the procedures of the Health & Safety Code).

Art. 46B.151. Court Determination Related to Civil Commitment

Art. 46B.151. COURT DETERMINATION RELATED TO CIVIL COMMITMENT.

(a)  If a court is required by Article 46B.084(f) or by its appropriate determination under Article 46B.071 to proceed under this subchapter, or if the court is permitted by Article 46B.004(e) to proceed under this subchapter, the court shall determine whether there is evidence to support a finding that the defendant is either a person with mental illness or a person with mental retardation.

(b)  If it appears to the court that there is evidence to support a finding of mental illness or mental retardation, the court shall enter an order transferring the defendant to the appropriate court for civil commitment proceedings and stating that all charges pending against the defendant in that court have been dismissed. The court may order the defendant:

(1)  detained in jail or any other suitable place pending the prompt initiation and prosecution by the attorney for the state or other person designated by the court of appropriate civil proceedings to determine whether the defendant will be committed to a mental health facility or residential care facility; or

(2)  placed in the care of a responsible person on satisfactory security being given for the defendant’s proper care and protection.

(c)  Notwithstanding Subsection (b), a defendant placed in a facility of the department pending civil hearing under this article may be detained in that facility only with the consent of the head of the facility and pursuant to an order of protective custody issued under Subtitle C, Title 7, Health and Safety Code.

(d)  If the court does not detain or place the defendant under Subsection (b), the court shall release the defendant.

This is a minor modification permitting art. 151 transfers to a court having civil mental health jurisdiction of persons with reference to whom all charges were dismissed. There is a clause in 46B.004 that 151 transfers are possible only if “there is evidence to support a finding of the defendant’s incompetency.” The importance of this clause is as follows: First, a 151 transfer creates a rare exception to the authority of a court to order a defendant held in jail—with no charges pending—for a reasonable period pending transfer to a court with probate (i.e., mental health) jurisdiction. Second, then, in a case wherein a defendant was restored, pled out, or received a sentence of time served, but was mentally ill, and necessity existed for continued court-ordered mental health services, no authority would exist for the person to be held in jail after dismissal of the charges—as is the case in 151 transfers. Rather, careful management of release would involve filing an application for court-ordered mental health services and timing the dismissal to coincide with the person’s being transported to a mental health facility.

IV. Conclusion

First, harmonization of HB 748 and HB 2725 appears quite possible as there are no obviously irreconcilable sections.

Second, the most fundamental changes have to do with reduction of the number of days permitted for restoration commitments, and the requirement that even with a combination of jail and restoration treatment, a person may serve no period of time greater than the maximum sentence for the act with which charged. This issue, however, will have effect largely, if not solely, in Class B misdemeanor cases.

Click Here to Read Part I

I. Overview

Tex. Code Crim. Proc. art. 46B, having to do with competency, was amended by the 82nd Legislature. In the following, those changes effective September 1, 2011 will be reviewed.

II. Principles as Predicates

Review of the changes to this statute may seem less obtuse if the reader recalls three basic principles:

First, the frequency with which events occur is inversely proportional to the time and energy required to manage them. Dealing with infrequent events—in part because they are infrequent—requires many resources and reflection.

This is no less the case than with issue of competency to stand trial. Harris County sees roughly 140,000 arrests in any given year. Out of that number, slightly more than 1%, or 1800, orders for competency and/or sanity examinations are received. Of that number, roughly 25% are opined to be incompetent to stand trial—and of that number, roughly half to two-thirds are adjudicated incompetent; in short, about 200 defendants more or less. Thus, less than one-quarter of 1% of all defendants will be adjudicated incompetent.

There is no question, however, but that the amount of energy, thought and discussion about these cases is significantly out of proportion to the total number of cases. Competency issues are infrequent events, but require knowledge of Article 46B, which is procedurally intensive.

Second, the Nineveh principle may be helpful: An old descriptor (actually appearing in the book of Jonah 4:11, referring to the citizens of Nineveh), is that some people don’t seem “to know their right hand from their left.” Indeed, that has occurred from time to time with the Texas Legislature which—as in this most recent session—passed two pieces of legislation modifying Tex. Code Crim. Proc. art. 46B in differing fashion. On May 26, 2011, HB 2725 was passed; followed by HB 748 on May 28, 2011. Both were signed by the Governor on June 17, 2011.

Third, and related to the second, the Legislature has also contemplated such circumstance and has created the code construction act, codified in Tex. Gov’t Code § 311.025. The content of this section provides rules for how acts passed in the same session, modifying the same statutes, are to be interpreted.

The basic rule in § 311 is that if two acts are passed in the same session, modifying the same act, “the amendments shall be harmonized, if possible, so that effect may be given to each.” But, “if irreconcilable, the latest in date of enactment prevails.”

Fortunately, although HB 2725 overhauls a significant portion of article 46B, HB 748 was far more modest in scope. Each section, however, will be reviewed in turn.

III. Comparison of HB 748 and HB 2725

Art. 46B.003. Incompetency; Presumptions

The standard for competency and an exception deserves comment: Texas has long adopted the Dusky standard for competency, i.e.

(a) A person is incompetent to stand trial if the person does not have:

(1)sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational un­der­standing; or

(2)a rational as well as factual understanding of the proceedings against the person

In Dusky, the Supreme Court held that: “It is not enough for the district judge to find that ‘the defendant is oriented to time and place and has some recollection of events,’ but that the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” (p.402). Dusky v. United States, 362 U.S. 402 (1960).

In Godinez v. Moran (1993), the United States Supreme Court specified that the standard for the various types of competency (i.e., competency to plead guilty, to waive counsel, to stand trial) should be considered the same. Justice Thomas wrote for the majority:

The standard adopted by the Ninth Circuit is whether a defendant who seeks to plead guilty or waive counsel has the capacity for “reasoned choice” among the alternative available to him. How this standard is different from (much less higher than) the Dusky standard—whether the defendant has a “rational understanding” of the proceedings—is not readily apparent to us. . . . While the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial. Nor do we think that a defendant who waives his right to the assistance of counsel must be more competent than the defendant who does not, since there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights.

Godinez v. Moran, 509 U.S. 389 (1993).

In Texas, while there is ordinarily a single standard for competency, an exception exists, not on the basis of the capacity to waive Miranda rights, stand trial, or plead guilty, but specifically whether the defendant wishes to proceed pro se. Citing Indiana v. Edwards, 554 U.S. 164 (2008), the Chadwick court acknowledged that competency to be pro se requires a higher standard than that of competency generally. Chadwick v. State, 277 S.W.3d 99 (Tex. App.—Austin 2009), aff’d 309 S.W.3d 558 (Tex. Crim. App. 2010).

Art. 46B.004. Raising the issue

The “bona fide doubt” standard to raise the issue of competency was long accepted in Texas, Townsend v. State, 427 S.W.2d 55 (Tex. Crim. App. App. 1968); Wilborn v. State, 491 S.W.2d 432 (Tex. Crim. App. 1973); Dinn v. State, 570 S.W.2d 910 (Tex. Crim. App. 1978); Mata v. State, 632 S.W.2d 355 (Tex. Crim. App. 1982); cf., discussion in Alcott v. State, 51 S.W.3d 596, 599 (Tex. Crim. App. 2001), wherein a “bona fide doubt” is a “real doubt in the judge’s mind as to the defendant’s competency.”

Evidence to raise the issue of competency is sufficient if it shows “recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant.” McDaniel v. State, 98, S.W.3d 704, 710 (Tex. Crim. App. 2003). Mata is generally cited as the controlling case.

The changes to 46B in 2004, however signaled a move away from the bona fide doubt standard,¹ a move which is now quite clear with the modifications to art. 46B.004 made by HB 2725:

(c-1) A suggestion of incompetency is the threshold requirement for an informal inquiry under Subsection (c) and may consist solely of a representation from any credible source that the defendant may be incompetent. A further evidentiary showing is not required to initiate the inquiry, and the court is not required to have a bona fide doubt about the competency of the defendant. Evidence suggesting the need for an informal inquiry may be based on observations made in relation to one or more of the factors described by Article 46B.024 or on any other indication that the defendant is incompetent within the meaning of Article 46B.003.

Heretofore, only in Greene v. State did the court identify that the terms “suggest” and “suggestion” represented a softening of that quantum of evidence necessary to raise the issue of competency. Greene v. State, 225 S.W.3d 324, 328 n.3 (Tex. App.—San Antonio 2007, no pet.). The changes imposed by HB 2725, however, are clear and unequivocal: Evidence from “any credible source” suggesting the defendant may be incompetent is sufficient to trigger a competency evaluation. And, “the court is not required to have a bona fide doubt about the competency of the defendant.” In short, the bona fide doubt standard is no more. The likely effect is that more requests for competency evaluations will ensue, inasmuch as failure to do so, which would be reviewed under an abuse of discretion standard, would now tend to result in more cases being sent back—since the “bona fide doubt” standard was a fairly high standard and the “suggestion” standard is a low standard indeed.

The quantum of evidence to raise the issue of competency, however, is but one of five evidentiary standards in 46B: A mere suggestion of incompetency is sufficient to raise the issue. A preponderance of the evidence is necessary to establish incompetency and commit a person for restoration. Yet, clear and convincing evidence is necessary to initiate civil commitment under 46B.102 and a beyond a reasonable doubt standard applies in mental retardation commitments under 46B.103. Finally, “evidence to support a finding that a person is mentally ill or a person with mental retardation” is sufficient to initiate a civil transfer under 46B.151.

Art. 42.03 & Art. 46B.009. Time credits

Art. 42.03 was modified both by HB 748 and HB 2725, using identical language:

(a) In all criminal cases the judge of the court in which the defendant is convicted shall give the defendant credit on the defendant’s sentence for the time that the defendant has spent:

(1)in jail for the case, including confinement served as described by Article 46B.009 and excluding [other than] confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court; [or]

(2)in a substance abuse treatment facility operated by the Texas Department of Criminal Justice under Section 493.009, Government Code, or another court-ordered residential program or facility as a condition of deferred adjudication community supervision granted in the case if the defendant successfully completes the treatment program at that facility; or

(3) confined in a mental health facility or residential care facility as described by Article 46B.009.

Then art. 46B.009 was modified identically by both acts:

Art. 46B.009. TIME CREDITS. A court sentencing a person convicted of a criminal offense shall credit to the term of the person’s sentence each of the following periods for which [the time] the person may be [is] confined in a mental health facility, residential care facility, or jail:

(1) any period of confinement that occurs pending a determination [trial] under Subchapter C as to the defendant’s competency to stand trial; and

(2) any period of confinement that occurs between the date of any initial determination of the defendant’s incompetency under that subchapter and the date the person is transported to jail following a final judicial determination that the person has been restored to competency.

The modifications to this point are only nominally different from the existing statute and but clarify that both jail confinement and a criminal commitment for restoration count in determining the maximum period of time a person may be confined. Art. 46B.0095, however, institutes a new wrinkle—or at the very least clarifies the existing statute.

Art. 46B.0095. Maximum Period of Commitment or Outpatient Treatment Program Participation Determined by Maximum Term for Offense

In this article, the language of HB 748 and HB 2725 is slightly different (see the table on the page following).

HB 2725 makes it very clear that a person may not be confined in a jail setting, or committed to a restoration program, for a period of time that would exceed the maximum sentence he or she could have received had they been convicted on day one. Moreover, harmonizing HB 748 and HB 2725 would lead to the conclusion that that subsequent confinement must be by a court having probate jurisdiction and conducted under the rules of the Health & Safety Code. This is not at all troublesome in the vast majority of counties in Texas, but in counties such as Harris, with statutory probate courts, the court having criminal jurisdiction is not the court having jurisdiction over strictly civil commitment of the defendant (noting that 46B.102/.103 commitments are a different entity with special application).

The effect of this change will apply—in practice—only to Class B misdemeanants and occasionally a Class A misdemeanant, as evident in the following scenario:

• Day 1 Defendant is booked on a Class B charge
• Day 60 Defendant is adjudicated incompetent
• Day 120 Defendant is released from jail and sent to a state hospital for restoration under Tex. Code Crim. Proc. art. 46B.073.
• Day 165 State hospital requests a 60-day extension

The alternatives are now very limited, inasmuch as granting an extension would subject the defendant to a potential period of confinement of 225 days—exceeding the maximum possible period of confinement of 180 days. This issue would not be problematic for most Class A misdemeanants, or in felony cases where the maximum period of confinement is far longer.

Nonetheless, in such a circumstance—and given that the defendant was adjudicated incompetent (and not restored)—a 46B.151 transfer for purposes of civil commitment is permissible.

Attend to the fact that HB 2725 inserts the phrase into .0095 prohibiting future commitments, subsequent to a commitment for restoration—applying to a defendant who has served that period of time which would constitute the maximum possible sentence—under “Subchapter D or E or any other provision of this chapter.” This would appear to specifically prohibit what is frequently a most useful alternative for mentally ill misdemeanor defendants: namely a 46B.102 or 46B.103 civil commitment by the criminal court. More about that will be said later.

There are periods of confinement which would courts may consider viz. time credits:

(1)the period between arrest and adjudication of incompetency;

(2)the period between adjudication of incompetency and transfer for restoration treatment,

(3)the period of restoration treatment; and

(4)the period upon return from restoration treatment and disposition.

The single area of some conflict between HB 748 and HB 2725 occurs in 46B.0095(d), where HB 758 says the court “may” and HB 2725 says the court “shall” give credit for the period between arrest and adjudication of incompetency. However, Art. 42.03 earlier directs the courts to give credit for this period and Texas has a plethora of caselaw on the necessity to give time credits at sentencing for a period of incarceration, excepting discretionary credit for time served as a condition of community supervision. See Ex parte Walker, 150 S.W.3d 429 (Tex. Crim. App. 2004); Ex parte Jasper, 538 S.W.2d 782 (Tex. Crim. App. 1976); Ex parte Kuban, 763 S.W.2d 426 (Tex. Crim. App. 1989). Consequently, though HB 748 would technically supersede HB 2725, the weight of authority is significantly toward granting mandatory time credits for that period of incarceration prior to adjudication of incompetency.

As an aside this statute would have no special effect upon “local restoration,” i.e., an inpatient restoration program geographically housed locally, as opposed to a state hospital program some distance away. A pilot project from May–November 2010 in Harris County was established to provide restoration as statutorily permitted for all misdemeanants and felony cases not meeting the criteria of Article 17.03(a)(6), or an affirmative finding under 3(g)(a)(2) Article 42.12, which demonstrated that persons could be restored in one-third the amount of time Rusk State Hospital has required (37 days vs. 99), and with two-thirds the costs ($25k vs. $37k) and having the same restoration rate (over 80%).

Art. 46B.010. Mandatory Dismissal of Misdemeanor Charges

This section was modified—save for a minor exception—identically in both bills. (See table on top of next page.) This modification extends to inpatient treatment the rule that charges may be dismissed if the defendant is not tried before the expiration of the period described in .0095. However, the most interesting feature of the modification of this section is to suggest that—in contrast to virtually all other circumstances (with limited exceptions)—a misdemeanor case may be dismissed without the consent of the State. See discussion in State v. Johnson,821 S.W.2d 609 (Tex. Crim. App. 1991). The statute appears to permit the defense to move that a matter be placed on the docket and the court is granted authority to dismiss—see Sec. 2. This may result in appellate review, though it clearly applies only to the lowest-level case.

From this point forward in the document, only HB 2725 applies.

Art. 46B.022. Experts: Qualifications

Art. 46B. Experts: Qualifications (a) To qualify for appointment under this subchapter as an expert, a psychiatrist or psychologist must:

(1)as appropriate, be a physician licensed in this state or be a psychologist licensed in this state who has a doctoral degree in psychology; and

(2)have the following certification [or experience] or training:

(A)as appropriate, certification by:

(i) the American Board of Psychiatry and Neurology with added or special qualifications in forensic psychiatry; or

(ii) the American Board of Professional Psychology in forensic psychology; or

(B)[experience or] training consisting of:

(i) at least 24 hours of specialized forensic training relating to incompetency or insanity evaluations; and

(ii) at least [for an appointment made before January 1, 2005, at least five years of experience before January 1, 2004, in performing criminal forensic evaluations for courts; or]

[(iii) for an appointment made on or after January 1, 2005, at least five years of experience before January 1, 2004, in performing criminal forensic evaluations for courts and] eight [or more] hours of continuing education relating to forensic evaluations, completed in the 12 months preceding the appointment [and documented with the court].

The issue of expert qualifications has been troubling across the state, despite a Legislative Council letter dated October 24, 2003, part of which read: “Apparently an attorney in Harris County has opined that the lack of a conjunction between items 46B.022(a)(2)(B)(i) and (ii) means that a psychiatrist or psychologist seeking court appointment as an expert for determining the competency of a defendant before January 1, 2005, needs both 24 hours of specialized training and 5 years of experience in performing criminal forensic examinations. This is incorrect.” And, as Brian Shannon pointed out in his book, Texas Criminal Procedure and the Offender with Mental Illness, supra, there has been confusion by some experts “and even a few courts . . .” (p. 72) on the matter. This amendment, however, clearly lays to rest the issue that experience is a qualification, as experts must be qualified by board certification or training, and have regular continuing education.

As an aside, it may be unfortunate that art. 46C.102—which deals with the qualifications of examiners conducting sanity examinations—was not modified so as to be clearly consistent with 46B. However, 46C.102 does unequivocally permit psychiatrists or psychologists qualified alternatively by board certification, or training, or experience to conduct such examinations and perhaps there will be less confusion than the writer fears.

Art. 46B.024. Factors Considered in Examination.

Art. 46B.024. FACTORS CONSIDERED IN EXAMINATION. During an examination under this subchapter and in any report based on that examination, an expert shall consider, in addition to other issues determined relevant by the expert, the following:

(1)the capacity of the defendant during criminal proceedings to:

(A)rationally understand the charges against the defendant and the potential consequences of the pending criminal proceedings;

(B) disclose to counsel pertinent facts, events, and states of mind;

(C) engage in a reasoned choice of legal strategies and options;

(D) understand the adversarial nature of criminal proceedings;

(E) exhibit appropriate courtroom behavior; and

(F) testify;

(2)as supported by current indications and the defendant’s personal history, whether the defendant:

(A) has a [diagnosable] mental illness; or

(B) [or] is a person with mental retardation;

(3)whether the identified condition has lasted or is expected to last continuously for at least one year;

(4) the degree of impairment resulting from [impact of] the mental illness or mental retardation, if existent, and the specific impact on the defendant’s capacity to engage with counsel in a reasonable and rational manner; and

(5) [(4)] if the defendant is taking psychoactive or other medication:

(A) whether the medication is necessary to maintain the defendant’s competency; and

(B) the effect, if any, of the medication on the defendant’s appearance, demeanor, or ability to participate in the proceedings.

A discussion of how to read competency examinations, or to conduct either direct or cross-examination of experts on these issues is beyond the scope of this writing. However, be aware that very specific issues must be addressed in competency examinations, six capacity issues (rational understanding, disclosure of facts, events and states of mind, capacity to engage in reasoned choice, understanding the adversarial nature of proceedings, exhibit appropriate behavior and testify), plus presence or absence of mental illness or mental retardation, the duration of such a condition—if existing—as well as degree of impairment, medications prescribed, and effects thereof. Historically, certain advocacy interests—believing that psychoactive medications would be harmful to all persons—pressed for the insertion of a phrase inquiring as to the “effect, if any, of the medication on the defendant’s appearance . . . etc.” In point of fact, psychoactive agents virtually never interfere with a defendant’s ability to exhibit appropriate courtroom behavior, but only aid in ensuring that to be the case.

In Harris County, a contract exists between MHMRA of Harris County and the sheriff’s office to provide competency or sanity examinations, and while in the distant past there was great variability among examiners as regards the nature of the reports, now all examiners use the same structured inventory to conduct competency examinations and generally follow the TACOOMI template for reports to the courts. Some provide more historical information than others.

A comment about mental health diagnoses: A diagnosis—by a competency examiner—that a defendant is a person with mental retardation, however, does not require that the examination meet the Health & Safety Code standards for such determinations. In Rodriguez v. State the court held that competency and mental retardation are very different concepts such that “the language of the code does not compel mental retardation determinations be governed by the Health Code.” Moreover, mental retardation is not dispositive of competency. Rodriguez v. State, 899 S.W.2d 658 (Tex. Crim. App. 1995). See also Grayson v. State, 438 S.W.2d 553 (Tex. Crim. App. 1969)—neither mental retardation nor psychosis are sufficient in and of themselves to defeat the presumption of competency. And, for that matter, incapacity under the guardianship code does not constitute incompetency. Koehler v. State, 830 S.W.2d 665, 666 (Tex. App.—San Antonio 1992, no pet.).

Art. 46B.025. Expert’s Report

Art. 46B.025. EXPERT’S REPORT. (a) An expert’s report to the court must state an opinion on a defendant’s competency or incompetency to stand trial or explain why the expert is unable to state such an opinion and must also:

(1)identify and address specific issues referred to the expert for evaluation;

(2)document that the expert explained to the defendant the purpose of the evaluation, the persons to whom a report on the evaluation is provided, and the limits on rules of confidentiality applying to the relationship between the expert and the defendant;

(3)in specific [general] terms, describe procedures, techniques, and tests used in the examination, [and] the purpose of each procedure, technique, or test, and the conclusions reached; and

(4)state the expert’s clinical observations, findings, and opinions on each specific issue referred to the expert by the court, state the specific criteria supporting the expert’s diagnosis, and state specifically any issues on which the expert could not provide an opinion.

(a-1) The expert’s opinion on the defendant’s competency or incompetency may not be based solely on the defendant’s refusal to communicate during the examination.

(b) If in the opinion of an expert appointed under Article 46B.021 the defendant is incompetent to proceed, the expert shall state in the report:

(1)the symptoms, exact nature, severity, and expected duration of the deficits resulting from the defendant’s mental illness or mental retardation, if any, and the [that] impact of the identified condition on the factors listed in Article 46B.024[, contributing to the defendant’s incompetency]; [and]

(2) an estimate of the period needed to restore the defendant’s competency, including whether the defendant is likely to be restored to competency in the foreseeable future; and

(3) prospective treatment options, if any, appropriate for the defendant.

(c)An expert’s report may not state the expert’s opinion on the defendant’s sanity at the time of the alleged offense, if in the opinion of the expert the defendant is incompetent to proceed.

(d) The court shall direct an expert to provide the expert’s report to the court and the ap­pro­priate parties in the form approved by the Texas Correctional Office on Offenders with Med­ical or Mental Impairments under Section 614.0032(b), Health and Safety Code.

This article was modified to require that experts provide greater specificity both in terms of the procedures, techniques, or tests used in the examination—as well as the conclusions reached. The courts have long eschewed brief, conclusory reports (City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009)); however, the present modification requires examiners to provide greater detail as both as to the materials relied upon as well as the conclusions reached.

In addition, an issue that not uncommonly appears in reports was also addressed by the legislature: namely, providing a report based solely upon a defendant’s refusal to communicate. While a competency opinion may be offered in cases wherein a defendant is non-communicative, the examiner is now required to identify the bases of his/her opinion—and specifically the collateral sources upon which the examiner relied, such as deputies observing the defendant, medical rec­ords, family members, etc.

Finally, this section reinstituted a term that was in the preceding competency article, i.e., art. 46.02—“unlikely to be restored to competency in the foreseeable future”—but was removed from 46B. This phrase is now required to be addressed by examiners; and about this issue more will be said in reference to 46B.071.

Note

1. For a discussion see Brian D. Shannon and Daniel Benson, Texas Criminal Procedure and the Offender with Mental Illness, 4th Ed. National Alliance on Mental Illness, Austin, Texas 2008. As well, Alan Curry, Appellate Division Chief of the Harris County District Attorney’s Office pointed out in a personal communication that in Montoya v. State, 291 S.W.3d 420 (Tex. Crim. App. 2009), the Court of Criminal Appeals refused to abandon the “bona fide doubt” standard, even under the newer statute. See also Gonzales v. State, 313 S.W.3d 840 (Tex. Crim. App. 2010); Rodriguez v. State, 329 S.W.3d 74 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

The conclusion of this article will appear in the November issue of the Voice.