INCOMPETENCY TO STAND TRIAL ART 46 B 003

INCOMPETENCY TO STAND TRIAL ART. 46 B. 003 • Lacks rational and factual understanding of the proceedings • Cannot consult with counsel • Presumed competent • Burden of Proof by a preponderance

Raising the Issue of Incompetency Art. 46 B. 004 Incompetency may be raised by: state defense the court any credible source Stay of all other proceedings

Informal Inquiry Art. 46 B. 004(c) What Is An Informal Inquiry? An informal inquiry is a hearing at which the moving party tries to convince the court that there is enough evidence of the defendant’s incompetence to require a competency evaluation. The Rules of Evidence do not apply at an informal inquiry.

Court Ordered Evaluation of the Defendant • If the court finds there is some evidence to indicate that the defendant is incompetent to stand trial, the court is required to order an examination of the defendant by one or more qualified experts to determine whether the defendant is incompetent to stand trial. Art. 46 B. 021(b).

Factors Experts Must Consider in Evaluating Defendants Art. 46 B. 02 The capacity of the defendant during criminal proceedings to: Rationally understand the charges against him Rationally understand the potential consequences of the pending criminal proceedings Disclose to counsel pertinent facts, events and states of mind Engage in a reasoned choice of legal strategies and options Understand the adversarial nature of the criminal proceedings Exhibit appropriate courtroom behavior; and testify

The Expert’s Report The report must state the expert’s opinion on competency or incompetency and other factors set out in Art. 46 B. 025 Due in 30 days after Court’s Order Copies to Court, State and Defense

Competency Disposition Options • Agreed Competency • Agreed Incompetency • Trial Before the Court • Trial Before a Jury

ISSUES AT THE COMPETENCY TRIAL and The New Ballgame Under 46 B. 071(b) 1. Competency 2. Likelihood of restoration 3. Mental Illness/Mental Retardation 4. Meeting Criteria

Found Incompetent and Likely To Be Restored Within the Foreseeable Future If it is found that an incompetent defendant is likely to be restored to competency within the foreseeable future, the court determines duration and place of commitment pursuant to Arts. 46 B. 072 or 46 B. 073 C. C. P.

THE COMMITMENT DETERMINATION • The trial court determines place of commitment • The court’s options range from outpatient to maximum security.

DURATION OF INITIAL COMMITMENTS Felonies Inpatients and Outpatients 120 days Misdemeanors Inpatients 60 days Outpatients 120 days • Art. 46 B. 072 and Art. 46 B. 073

Procedures on Credible Evidence of Immediate Restoration Art. 46 B. 0755

REDETERMINATION OF COMPETENCY ARTS. 46 B. 108 -117

Notice of Defendant’s Return to Court Art. 46 B. 079 The outpatient provider or facility head is required to notify the court: When the treatment team believes defendant has attained competency 2. When the treatment team believes defendant will not attain competency within the foreseeable future or 3. Of impending expiration of defendant’s commitment order at least 15 days before the commitment order is due to expire 1.

Procedures Upon Defendant’s Return to Court Civil Commitment Hearings Defendants With Mental Illness Civil Commitment Issues • Competency • Mental Illness • Inpatient criteria • Expected 90 day duration of illness • Been an inpatient for 60 consecutive days in preceding 12 months Duration of Commitment 12 months Defendant’s With Mental Retardation Civil Commitment Issues • Competency • Mental Retardation • Criteria for Long Term Commitment Duration of Commitment Long Term

Maximum Period of Restoration and Time Credits Arts • Art. 46 B. 009 Time Credits • Art. 46 B. 0095 Maximum Period of Commitment or Outpatient Treatment Program Participation Determined by Maximum Term for Offense • Art. 46 B. 010 Mandatory Dismissal of Misdemeanor Charges

Court Ordered Medication of Incompetent Defendants 46 B. 086 C. C. P. 574. 106 Health and Safety Code • Danger to Self or Others • Lacks capacity to decide • Defendant’s best interest • Filed by treating M. D. • Applicable to defendants • In custody awaiting trial • In jail 72 hrs. awaiting transfer • Under inpatient court order Failed 574. 106 hearing Outpatients Restored Defendants MR Commitments In custody awaiting transfer to MH or MR facility • Defendants in inpatient facilities • Continuity of care plan requirement • Testimony of 2 physicians required • • •