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.
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.
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  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.
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.
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).