Procedural Choke Points in 46B Competency Issues

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Saturday, March 12th, 2016
Procedural Choke Points in 46B Competency Issues

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

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

Fundamentals

Raising the Issue

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

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

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

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

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

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

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

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

Issue: Competency Evaluation Orders for Persons Not Yet Charged

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

The scenario that occurs is one where the defendant is ob­viously disturbed in the jail, and though counsel has been appointed, there is not yet a formal charge. Upon notice to the court, a competency evaluation is ordered. The defendant is then examined for competency to proceed upon a criminal case that is not yet existing. If opined “not competent,” the state hos­pital receives the person with a file number representing, not the cause, but a tracking number for the person in the jail. Because the facility does no “look back,” no one is aware that the defendant was committed to be restored to competency in a nonexistent matter. Consequently, the facility has no knowledge as to when the person would conceivably have been confined for a period in excess of the maximum sentence they could have served had they been sentenced on day one.

Upon return to the county, if the person is opined “restored,” then the matter goes forward. However, if opined “not restored,” the original case cannot be “dismissed,” as none had been filed and there is no basis for transfer to a court having civil jurisdiction as would otherwise exist under Tex. Code Crim. Proc. art. 46B.151. Jail staff will often ask the arresting officer/entity to drop any pending charge.6

Issue: Qualifications of Examiner

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

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

Issue: Report Contents

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

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

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

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

Issue: Opinion on Likelihood of Restoration in the Foreseeable Future

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

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

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

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

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

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

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

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

Issue: Report Return and Handling

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

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

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

Issue: Restoration Commitments Are Mandatory

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

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

Issue: Facility packet

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

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

Issue: Time frame of Restoration Order and Date Commitment Begins

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

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

Issue: Dealing with Restored Defendants Who Decompensate

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

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

Two options, however, exist:

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

Issue: Unrestored Defendants

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

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

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

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

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

Issue: Unvacated Adjudication of Incompetency

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

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

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

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

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

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

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

Summary

In the foregoing we have addressed the following issues:

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

Notes

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

2. Id., 1.02(g)

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

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

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

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

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

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

9. Id., 46B.009

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

11. Id., 46B.085

12. Id., 46B.073

13. Id., 46B.071

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

15. Id., 46B.084

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

17. Id.

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