FAQs about 46B Competency

When should you ask for a competency evaluation?

Competency should be addressed at the earliest possible stage of the proceedings where there is evidence1 to “suggest” that competency might be lacking.2 If not suggested by defense counsel, a competency examination may be requested by the prosecution or the court on its own motion.3 Once the request has been made, the court will conduct an informal inquiry to determine if there is “some evidence” the defendant is incompetent to stand trial.4

If the issue of competency was not apparent before trial, it may nonetheless be raised subsequent to the trial on the merits.5 More specifically, it may be raised at any time before the “sentence is pronounced.”6 If raised after the return of the verdict, “the court shall make the determination as soon as reasonably possible after the return.”7 However, the issue of competency is moot if a verdict of not guilty is returned.8

It is advantageous to defense counsel and the client to raise the competency issue as soon as possible. First, the prosecution may dismiss the charges against the defendant, regardless of a finding of incompetency.9 Once dismissed, if the court feels there is evidence to support a finding of incompetency, the court may transfer the defendant to civil commitment proceedings (more in-depth discussion to follow).10 Second, a client deemed incompetent might be more likely to take medication in order to become competent and not continue to languish in jail.

Furthermore, once the suggestion of incompetency is made by either party and an informal inquiry has been held by the court supporting incompetency, the court orders an expert examination to make the final determination as to the defendant’s competency to stand trial.11 While a jury trial, to determine a defendant’s incompetency to stand trial is not required; it may nevertheless be requested by either party or the court upon its own motion.12 However, an interlocutory appeal, as to the defendant’s incompetency to stand trial is barred by the rules.13

Who can perform a competency evaluation?

The court may appoint an expert when there has been a suggestion as to the defendant’s incompetency, either to examine the defendant or testify.14 However, if there is evidence to support a finding of incompetency, the court must appoint an expert to examine or testify as to the defendant’s incompetence.15 This expert may not also be involved in the defendant’s treatment.16 If there exists evidence to support a finding of incompetency, the court must appoint an expert, whether it be a psychologist or psychiatrist employed by the local mental health or retardation authority;17 an expert chosen by the defendant;18 or another appointed by the court.19

The code specifically delineates the qualifications the aforementioned experts must have.20 They include being a physician or psychologist with a doctoral degree, licensed in this state, and certification by the American Board of Psychiatry and Neurology “with added or special qualifications in forensic psychiatry” or American Board of Professional Psychology in forensic psychology.21 If the expert is not board certified, then he or she must have “at least 24 hours of specialized forensic training relating to incompetency or insanity evaluations” or at least 5 years’ experience before January 1, 2004, in performing criminal forensic evaluations for courts and at least 8 hours of continuing education relating to forensic evaluations (completed in the 12 months preceding the appointment).22 In addition, regardless of any board certification, the expert must have completed at least 6 hours of continuing education courses in forensic psychiatry or psychology in the preceding 24 months.23 If an expert does not fit into the criteria above, as long as there are some exigent circumstances based on the expert’s specialized training or experience he may qualify.24 As a practical matter, most counties have an approved list of PhD psychologists and MD psychiatrists that they will appoint to do a competency examination.

How is competency different from Not Guilty by Reason of Insanity (NGRI)?

Competency is a determination as to the defendant’s ability to stand trial. This evaluation focuses on the defendant’s present ability to consult with their attorney and understand the proceedings against them.25 Competency is not a defense or excuse for the crime committed; however, it acts as a stay to the proceedings.26

Insanity is an affirmative defense that acts as an acquittal for the defendant.27 The defense is focused on the mental state of the defendant at the time of the incident.28 In addition, the insanity defense uses the term “mental disease or defect” and “does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”29

Where will my client go if found incompetent?

Once a determination of incompetency has been made by the expert, assuming the determination is uncontested,30 the code lists two options: commitment to a facility or release on bail to an outpatient facility.

Release on bail is subject to many conditions and focuses on ensuring safety for the community and effective mental health treatment for the defendant, with the specific objective that the client regain competency (and not necessarily be cured of the mental illness).31 Bail is available for felony cases, but is mandated for misdemeanor cases—where the defendant “may be safely treated on an outpatient basis and there is room available at an outpatient facility.”32 The treatment at the outpatient facility will not exceed 120 days.33

The court will not rest on counsel or defendant’s word alone as to the defendant’s ability and willingness to complete an outpatient treatment program. The court must receive a “comprehensive treatment plan” that represents the treatment for competency restoration and identifies the treatment provider.34 In addition, the court can require the defendant’s outpatient treatment to be administered by a community center or any other entity that provides outpatient restoration treatment.35 Also, the court can prescribe the care or treatment to be utilized, including medication.36

While outpatient treatment is desirable, there is limited space, and many persons who are incompetent to be tried will probably not fit the criteria for outpatient care. Also, if the defendant is unsuccessful at an outpatient treatment facility, it only delays an admission into a hospital. As the outpatient treatment order of the court will not exceed 120 days, neither will the commitment to a facility.37 However, there is a one-time extension of 60 days for a committed defendant who has not regained competency.38

Can they go to any psychiatric hospital?

No. The defendant will be ordered to a forensic facility based on his or her offense. For non-violent offenses,39 including assault, and offenses where an “affirmative finding” of the use or exhibit of a deadly weapon40 has not been made, the defendant will be committed to a “mental health facility or residential care facility determined to be appropriate by the local mental health authority or local mental retardation authority.41

Violent offenses and any offense in which a deadly weapon was used or exhibited will see the defendant being committed to a “maximum security unit of any facility designated by the Department” of State Health Services, “agency of the United States operating a mental hospital, or to a Department of Veterans Affairs hospital.”42 For instance, the North Texas State Hospital, Vernon campus, currently serves as the main mental health facility in Texas for violent offenders.

Can any doctor treat them?

The facility in which the defendant was committed or the outpatient treatment program, if the defendant was released on bail, will treat the defendant.43 Other treatment providers are not necessarily provided for in the code, but remain an option.44

Can my client bond out of jail if there is a writ pending?

The writ pending would be the order of commitment to a mental health facility or residential care facility based upon the determination that the defendant is incompetent to stand trial.45 Given the limited space of state hospitals, writs can remain pending for up to 120 days or more. The simplest answer is that your client cannot bond out of jail if there is a writ pending. The code only presents two options upon a finding of incompetency: commitment or release on bail.46 Once the court has gone the route of commitment, release on bail is no longer an option. In any event, it would behoove counsel in any county to inquire into their local policy respecting this issue.

How long will they wait in jail?

Texas is the second most populous state in the country, but almost dead last in terms of mental health funding—49th.47 In 2005, there were 12.1 psychiatric beds per 100,000 people.48 To meet the minimum standards of treatment, there would need to be more than 11,000 additional beds.49 The Texas State Department of Health Services intends to cut an additional 183 psychiatric beds, or 12 percent of total capacity, when the legislature convenes in 2011.50 Therefore, depending on your county, the wait could be anywhere from 30 days to 120 days or more.

Are any outpatient programs available?

If your client is released on bail based upon a determination that he or she is incompetent to stand trial, the court will require the defendant to participate in an outpatient treatment program.51 The code authorizes the outpatient treatment program to be administered by either a community center or any other entity “that provides outpatient competency restoration services.”52

Most likely, the outpatient treatment program will be administered by the local mental health/mental retardation authority. For instance, in Austin the authority is Austin Travis County Integral Care, and they operate a Community Competency Restoration Program (CCRP).53

What if my client “clears up” while waiting for a bed at a forensic hospital?

Due to the long wait for a state hospital bed in any county in Texas, and the lack of outpatient programs that will fit most client’s needs, it is possible that a defendant will have regained competency while in jail. However, this result is extremely unlikely if the defendant is incarcerated and not receiving or taking medication. The code allows for the redetermination of competency at any time.54 The defense, prosecution, or the court on its own motion may make an inquiry into restoration,55 as well as moving the court to determine that the defendant has been restored to competency.56 Affidavits may accompany the restoration motion,57 in addition to a request to appoint a “disinterested” expert.58

In addition to the parties and the court making an inquiry into restoration, a mental health or residential care facility and an outpatient treatment provider may do the same.59 They may also request the court to determine that the defendant has been restored to competency, along with an accompanying written statement of their opinion of the defendant’s competency.60

If both parties and the court agree that the defendant has been restored to competency, the criminal court proceedings will resume.61 However, if contested, the court will hold a hearing, either on the request of the head of a facility or outpatient treatment provider,62 and on its own motion or on motion by either party if “any supporting material establishes good reason to believe the defendant may have been restored to competency.”63 In addition, the court or either counsel may make a motion to have a jury determine the outcome of the hearing.64 Lastly, incompetency is presumed at the hearing,65 unless the head of the facility or outpatient treatment provider has provided an opinion that the defendant has regained competency.66

Thereafter, if the redetermination of the defendant’s competency has been successful, the criminal proceedings are resumed.67 However, if a defendant remains incompetent to stand trial, he or she will continue their commitment at a facility or outpatient treatment program.68 Once a redetermination of competency has been made and the defendant remains incompetent, any subsequent redetermination of competency motion or request filed before the 91st day after the date of a previous redetermination must be accompanied by an explanation supporting the belief that the defendant has regained competency.69

What if my client will not take medication while in jail or in commitment?

Often, depending on the severity of your client’s mental illness, your client will not regain competency without medication. You will have a difficult time seeking an order for a re-evaluation if your client refuses medication. Those clients who have been required to take psychoactive medications as a result of their continuity of care plan with an inpatient or outpatient treatment provider, and have been found to not meet the criteria of court-ordered administration of psychoactive medications under the Health and Safety Code,70 may be eligible for court-ordered medications under the Criminal Code.71 Although, a client released on bail would not be required to have the hearing under the aforementioned Health & Safety Code.72

Once a hearing under the Health & Safety Code has found the client to not be a danger to self or others, then the court will make its own findings, by clear and convincing evidence, that the medication is medically appropriate (weighing harm versus benefit); the state has a clear and compelling interest in defendant obtaining competency; no other less-invasive means is available; and the prescribed medication will not undermine defendant’s use of defensive theories at trial.73 Lastly, the court will require the testimony of two physicians—one who prescribed the medication (either correctional facility or outpatient treatment program) and another who is not involved in the proceedings against the defendant.74

What if my client remains incompetent throughout the proceedings against them?

If your client remains incompetent, whether they have been committed or released on bail to an outpatient treatment provider, he or she cannot be ordered to participate in either of those two options for a period that exceeds the maximum term provided by law for the offense charged.75 Any additional period of confinement must be pursuant to civil commitment proceedings.76 Civil commitment proceedings depend on whether the charges have been dismissed.77

If your client is a person with a mental illness, the court must conduct a hearing to determine whether court-ordered mental health services are appropriate.78 The criminal court where the charges remain pending will conduct the civil commitment proceedings pursuant to the Health and Safety Code.79 To receive mental health services by court order, the court must find by clear and convincing evidence: that your client is mentally ill; and that as a result of their mental illness is likely to cause serious harm to self or others, or “is suffering severe and abnormal mental, emotional, or physical distress” that prevents the person from living independently and making a rational decision for treatment.80

If court-ordered mental health services are appropriate, the court will either make a temporary81 or extended82 mental health services determination. Temporary mental health services will only be ordered if there is clear and convincing evidence that mental health services are available for the client; the illness is “severe and persistent”; the client will continue to suffer abnormal stress if not treated; the client shows an inability to function independently without court-ordered mental health services; and the client is unable “to participate in outpatient treatment services effectively and voluntarily.”83 The temporary court-ordered mental health services may be inpatient or outpatient, and will not exceed 90 days.84

While temporary court-ordered mental health services seem arduous, extended is that much more. In addition to meeting the basic criteria established in paragraph two and three of this section, the client’s condition must be expected to continue for more than 90 days and the client has received court-ordered inpatient mental health services “for at least 60 consecutive days during the preceding 12 months.”85 But, this should often be the case under 46B, given that the defendant has likely just received 180 days of inpatient treatment, yet remains incompetent to stand trial.

An extended civil commitment will not last longer or shorter than 12 months.86

Finally, if the charges have been dismissed and there is evidence to support a finding of your client’s mental illness or retardation, the court must “enter an order transferring the defendant to the appropriate court for civil commitment proceedings.”87

Special thanks to Ryan Mosler Esq. and Brian D. Shannon, Professor of Law, Texas Tech.

For more information on any of the issues raised in this article, please consult, Brian D. Shannon & Daniel H. Benson, Texas Criminal Procedure and the Offender with Mental Illness: An Analysis and Guide (2008), available at http://www.namitexas.org/resources/nami_tcp_guide2008.pdf.

Notes

1. Tex. Code of Crim. Proc. § 46B.003 (a) (2010), evidence that the person cannot consult with attorney or understand the proceedings against them.

2. Id. § 46B.004 (a).

3. Id. at (b).

4. Id. at (c).

5. Id., § 46B.005 (d).

6. Id.

7. Id.

8. Id.

9. Id., § 46B.004 (e).

10. Id. See Tex. Code of Crim. Proc. § 46B.151 (2010) for civil commitment proceedings.

11. Id., § 46B.005 (a).

12. Id., § 46B.005 (c).

13. Id., § 46B.011.

14. Id., § 46B.021 (a).

15. Id. at (b).

16. Id. at (c).

17. Id. at (e).

18. Id. at (f).

19. Id. at (a).

20. Id. § 46B.022

21. Tex. Code of Crim. Proc. § 46B.022(a) (2010).

22. Id.

23. Id. at (b).

24. Id. at (c).

25. Id., § 46B.003(a).

26. Id., § 46B.004(d).

27. Tex. Code of Crim. Proc. § 46C.155(a) (2010).

28. Tex. Penal Code § 8.01(a) (2010).

29. Id. at (b).

30. Id., § 46B.054.

31. Id., § 46B.072(a).

32. Id. at (1) & (2).

33. Id. at (b).

34. Id. at (c).

35. Id. at (d).

36. Id.

37. Id., § 46B.073(b).

38. Id. § 46B.080.

39. Any offense not listed in Tex. Code of Crim. Proc. § 17.032(a) (2010) except (a)(6).

40. Tex. Code of Crim. Proc. § 42.12 3g(a)(2) (2010).

41. Tex. Code of Crim. Proc. § 46B.073(d) (2010).

42. Id. at (c).

43. Id., § 46B.077.

44. Id., § 46B.111, for the appointment of disinterested experts; and id., § 46B.086 (d), for testimony of a physician not involved in the defendant’s proceedings for use in the determination of court-ordered medications.

45. Id., § 46B.073.

46. Id., § 46B.071.

47. L. Aron, R. Honberg, K. Duckworth et al., Grading the States 2009: A Report on America’s Health Care System for Adults with Serious Mental Illness 143 (2009), available at http://www.nami.org (follow “Grading the States” hyperlink, then follow “Full Report” hyperlink).

48. E. Torrey, K. Entsminger, J. Geller et al., The Shortage of Public Hospital Beds for Mentally Ill Persons 16 (2006) http://nami.beardog.net/AdvHTML_Upload/TACShortageofBedsStudywithtables.pdf .

49. See supra note 47, at 18.

50. Lillian Ortiz, “Mental health cuts could be disastrous,” Houston Chronicle, http://www.chron.com/disp/story.mpl/editorial/outlook/7123337.html (last visited Oct. 11, 2010).

51. Tex. Code of Crim. Proc. § 46B.072 (2010).

52. Id. at (d)(1).

53. Austin Travis County Integral Care, http://www.integralcare.org/?nd=ccrp (last visited Oct. 11, 2010).

54. Tex. Code of Crim. Proc. § 46B.108(a) (2010).

55. Id. at (b).

56. Id § 46B.110.

57. Id. at (b).

58. Id § 46B.111.

59. Id § 46B.108(b).

60. Id., § 46B.109.

61. Id., § 46B.112.

62. Id., § 46B.113 (a).

63. Id. at (b).

64. Id. at (c).

65. Id. at (e) and thereafter, incompetency is presumed at the hearing unless refuted by a preponderance of the evidence.

66. Id. at (d) and thereafter, competency is presumed at the hearing unless refuted by a preponderance of the evidence.

67. Id., § 46B.116.

68. Id., § 46B.117.

69. Id., § 46B.115 (a).

70. Tex. Health & Safety Code § 574.106 (a) (2010); and id. at (a-1), is under court order to receive inpatient mental health services, and clear and convincing evidence, that the patient lacks capacity to make own decision regarding medication and the proposed medication is in the best interest of the patient; and the patient presents a danger to self or others in the inpatient mental health or correctional facility.

71. Id., § 46B.086.

72. Id. at (a)(4).

73. Id. at (e).

74. Id. at (d); see, generally, Brian D. Shannon, Prescribing a Balance: The Texas Legislative Responses to Sell v. United States St. Mary’s L.J. (2010), http://www.stmaryslawjournal.org/pdfs/Shannon_II.pdf (discussing the evolution of Texas’ approach to court-ordered medications).

75. Id., § 46B.0095, except if charged with a misdemeanor and ordered to participate in an outpatient treatment program, the maximum period is two years.

76. Id. at (b).

77. Id., § 46B.102, where charges remain pending; and id., § 46B.151, where charges have been dismissed.

78. Id., § 46B.102(a).

79. Tex. Health & Safety Code § 574.034–574.035 (2010).

80. Id., § 574.034(a); and id., § 574.035 (a).

81. Id. § 574.034.

82. Id., § 574.035.

83. Id., § 574.034(b).

84. Id. at (g).

85. Id., § 574.035(3) & (4).

86. Id. at (h).

87. Id., § 574.151(b).

Jeanette Kinard is Director of the Travis County Mental Health Public Defender Office in Austin, Texas. Jeanette has a Bachelor’s Degree from the University of Texas at Austin and a Law Degree from the University of Houston in Houston. A frequent speaker, statewide, on the topic of the mentally ill in the criminal justice system, Jeanette is a member of the State Bar of Texas, Austin Criminal Defense Lawyers Association (President, 1994–95 and 2004–5), Texas Criminal Defense Lawyers Association (Board of Directors, 1996–2000), National Criminal Defense Lawyers Association, and the National Legal Aid and Defender Association. She serves on the Mayor’s Mental Health Task Force, the Texas Continuity of Care Task Force, and Travis County MH Jail Diversion Committee and is a Board Member for Capacity for Justice. Jeanette, a partner at Kinard & Kinard in Austin for 17 years, is editor of Kinard’s DWI Manual. She served six years on the District 9 Grievance Committee (1992–98) and was formerly a prosecutor in Harris, Bell, and Travis counties. Jeanette is a frequent contributor to Voice for the Defense magazine.

TCDLA
TCDLA
Jeanette Kinard
Jeanette Kinard
Jeanette Kinard is Director of the Travis County Mental Health Public Defender Office in Austin, Texas. A longtime criminal defense attorney, Jeanette has a bachelor’s degree from the University of Texas at Austin and a law degree from the University of Houston. She is a frequent speaker, statewide, on the topic of the mentally ill in the criminal justice system. She is a member of the State Bar of Texas, Austin Criminal Defense Lawyer’s Association (president, 1994–95 and 2004–5), Texas Criminal Defense Lawyers Association (Board of Directors, 1996–2000), National Criminal Defense Lawyers Association, and the National Legal Aid and Defender Association.

Jeanette Kinard is Director of the Travis County Mental Health Public Defender Office in Austin, Texas. A longtime criminal defense attorney, Jeanette has a bachelor’s degree from the University of Texas at Austin and a law degree from the University of Houston. She is a frequent speaker, statewide, on the topic of the mentally ill in the criminal justice system. She is a member of the State Bar of Texas, Austin Criminal Defense Lawyer’s Association (president, 1994–95 and 2004–5), Texas Criminal Defense Lawyers Association (Board of Directors, 1996–2000), National Criminal Defense Lawyers Association, and the National Legal Aid and Defender Association.

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