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FAQs about 46B Competency Jeanette Kinard
When should you ask for a competency evaluation Competency should be addressed at the earliest possible stage of the proceedings where there is evidence 1 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 Jan uary 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
Page 1 and 2: VOICE FOR THE DEFENSE Volume 40 No.
Page 3 and 4: g Features g Columns g Departments
Page 5 and 6: Benefits . . . “Something that pr
Page 7 and 8: CLE & Events . . . Providing legal
Page 9 and 10: Joseph A. Martinez Special thanks t
Page 11 and 12: Regular Members Joseph Aragon, Aust
Page 13 and 14: During Florence’s sixth day at BC
Page 15 and 16: searches unconstitutional where not
Page 17 and 18: Steve Green from Athens earned an a
Page 19: Proposed Changes to the TCDLA Bylaw
Page 23 and 24: anywhere from 30 days to 120 days o
Page 25 and 26: 32. Id. at (1) & (2). 33. Id. at (b
Page 27 and 28: to Stephenville. There, Jim studied
Page 29 and 30: Jim Jarrott was killed near a South
Page 31 and 32: Lynching of Jim Miller, left, alleg
Page 33 and 34: Miller’s Convenient Witnesses In
Page 35 and 36: Significant Decisions Report Please
Page 37 and 38: viction counsel performs deficientl
Page 39 and 40: HELD: The first step of the Hall le
Page 41 and 42: ever in the United States’ histor
Page 43 and 44: Name ______________________________
Page 45 and 46: Although relevant, evidence may be
Page 47 and 48: Texas Criminal Defense Lawyers Asso

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