Changes to 46B: Harmonizing HB 748 and HB 2725 – 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.


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.

Floyd L. Jennings, JD, PhD
Floyd L. Jennings, JD, PhD
Floyd L. Jennings, JD, Ph.D., Chief, Mental Health Division, joined the Harris County Public Defender’s Office in January 2011. Beginning in 2008, he was a consultant to Harris County Court Administration. Dr. Jennings matriculated at UT Southwestern Medical School in Dallas, from which he received his Ph.D. in clinical psychology in 1972. He was licensed to practice psychology in 1974, and was a long-time adjunct faculty member at the UT Medical School–Houston (now UTHSC). He went on to earn his J.D. from the University of Houston Law Center and was admitted to the bar in 1996. Dr. Jennings is the author of over fifty publications in the area of mental health and law. He can be reached at and (713) 274-6700.

Floyd L. Jennings, JD, Ph.D., Chief, Mental Health Division, joined the Harris County Public Defender’s Office in January 2011. Beginning in 2008, he was a consultant to Harris County Court Administration. Dr. Jennings matriculated at UT Southwestern Medical School in Dallas, from which he received his Ph.D. in clinical psychology in 1972. He was licensed to practice psychology in 1974, and was a long-time adjunct faculty member at the UT Medical School–Houston (now UTHSC). He went on to earn his J.D. from the University of Houston Law Center and was admitted to the bar in 1996. Dr. Jennings is the author of over fifty publications in the area of mental health and law. He can be reached at and (713) 274-6700.

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