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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
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 “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
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