Competency Hearings


            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.3rd 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 [14th 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:


  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. 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).
  1. Dr., tell the court if you are acquainted with the defendant here today.
  2. What is your relationship with _____________________?
  3. When did you examine ____________?
  4. How much time did you spend face-to-face with the defendant?
  5. How much time did you spend in review of records, or conversations with other sources of information?
  6. 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?
  7. What is that diagnosis? 
  8. Dr., please explain in laymen’s terms the diagnosis of _____________________.
  9. Dr. what does it mean to say that a person is not competent to stand trial?
  10. And do you have an opinion as to whether the defendant is incompetent to stand trial in this case?
  11. 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?
  12. Are you aware that there are statutory issues which must be addressed in any evaluation of competency?
  13. What are those issues? (CCP art. 46B.024 and .025)
    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.
  1. 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?
  2. What treatment alternatives are you recommending for this defendant and why?
  3. Could this defendant be safely treated on an outpatient basis? Why or why not?
  4. Is the defendant medication compliant? If not, has an application for forced medications been filed?
  5. Describe the facts upon which you based your opinion.   
  6. 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?
  7. To what facility are you recommending the patient be committed?
  8. Your honor, I would like to pass this witness subject to possible recall if I may…


                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.


            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.

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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