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What if my client remains incompetent throughout the proceedings against them If your client remains incompetent, whether they have been committed or released on bail to an outpatient treatment provider, he or she cannot be ordered to participate in either of those two options for a period that exceeds the maximum term provided by law for the offense charged. 75 Any additional period of confinement must be pursuant to civil commitment proceedings. 76 Civil commitment proceedings depend on whether the charges have been dismissed. 77 If your client is a person with a mental illness, the court must conduct a hearing to determine whether court-ordered mental health services are appropriate. 78 The criminal court where the charges remain pending will conduct the civil commitment proceedings pursuant to the Health and Safety Code. 79 To receive mental health services by court order, the court must find by clear and convincing evidence: that your client is mentally ill; and that as a result of their mental illness is likely to cause serious harm to self or others, or “is suffering severe and abnormal mental, emotional, or physical distress” that prevents the person from living independently and making a rational decision for treatment. 80 If court-ordered mental health services are appropriate, the court will either make a temporary 81 or extended 82 mental health services determination. Temporary mental health services will only be ordered if there is clear and convincing evidence that mental health services are available for the client; the illness is “severe and persistent”; the client will continue to suffer abnormal stress if not treated; the client shows an inability to function independently without court-ordered mental health services; and the client is unable “to participate in outpatient treatment services effectively and voluntarily.” 83 The temporary court-ordered mental health services may be inpatient or outpatient, and will not exceed 90 days. 84 While temporary court-ordered mental health services seem arduous, extended is that much more. In addition to meeting the basic criteria established in paragraph two and three of this section, the client’s condition must be expected to continue for more than 90 days and the client has received court-ordered inpatient mental health services “for at least 60 consecutive days during the preceding 12 months.” 85 But, this should often be the case under 46B, given that the defendant has likely just received 180 days of inpatient treatment, yet remains incompetent to stand trial. An extended civil commitment will not last longer or shorter than 12 months. 86 Finally, if the charges have been dismissed and there is evidence to support a finding of your client’s mental illness or retardation, the court must “enter an order transferring the defendant to the appropriate court for civil commitment proceedings.” 87 Special thanks to Ryan Mosler Esq. and Brian D. Shannon, Professor of Law, Texas Tech. For more information on any of the issues raised in this article, please consult, Brian D. Shannon & Daniel H. Benson, Texas Criminal Procedure and the Offender with Mental Illness: An Analysis and Guide (2008), available at http://www .namitexas.org/resources/nami_tcp_guide2008.pdf. Notes 1. Tex. Code of Crim. Proc. § 46B.003 (a) (2010), evidence that the person cannot consult with attorney or understand the proceedings against them. 2. Id. § 46B.004 (a). 3. Id. at (b). 4. Id. at (c). 5. Id., § 46B.005 (d). 6. Id. 7. Id. 8. Id. 9. Id., § 46B.004 (e). 10. Id. See Tex. Code of Crim. Proc. § 46B.151 (2010) for civil commitment proceedings. 11. Id., § 46B.005 (a). 12. Id., § 46B.005 (c). 13. Id., § 46B.011. 14. Id., § 46B.021 (a). 15. Id. at (b). 16. Id. at (c). 17. Id. at (e). 18. Id. at (f). 19. Id. at (a). 20. Id. § 46B.022 21. Tex. Code of Crim. Proc. § 46B.022(a) (2010). 22. Id. 23. Id. at (b). 24. Id. at (c). 25. Id., § 46B.003(a). 26. Id., § 46B.004(d). 27. Tex. Code of Crim. Proc. § 46C.155(a) (2010). 28. Tex. Penal Code § 8.01(a) (2010). 29. Id. at (b). 30. Id., § 46B.054. 31. Id., § 46B.072(a).
32. Id. at (1) & (2). 33. Id. at (b). 34. Id. at (c). 35. Id. at (d). 36. Id. 37. Id., § 46B.073(b). 38. Id. § 46B.080. 39. Any offense not listed in Tex. Code of Crim. Proc. § 17.032(a) (2010) except (a)(6). 40. Tex. Code of Crim. Proc. § 42.12 3g(a)(2) (2010). 41. Tex. Code of Crim. Proc. § 46B.073(d) (2010). 42. Id. at (c). 43. Id., § 46B.077. 44. Id., § 46B.111, for the appointment of disinterested experts; and id., § 46B.086 (d), for testimony of a physician not involved in the defendant’s proceedings for use in the determination of court-ordered medications. 45. Id., § 46B.073. 46. Id., § 46B.071. 47. L. Aron, R. Honberg, K. Duckworth et al., Grading the States 2009: A Report on America’s Health Care System for Adults with Serious Mental Illness 143 (2009), available at http://www. nami.org (follow “Grading the States” hyperlink, then follow “Full Report” hyperlink). 48. E. Torrey, K. Entsminger, J. Geller et al., The Shortage of Public Hospital Beds for Mentally Ill Persons 16 (2006) http://nami .beardog.net/AdvHTML_Upload/TACShortageofBedsStudywithtables.pdf. 49. See supra note 47, at 18. 50. Lillian Ortiz, “Mental health cuts could be disastrous,” Houston Chronicle, http://www.chron.com/disp/story.mpl/editorial/outlook/7123337.html (last visited Oct. 11, 2010). 51. Tex. Code of Crim. Proc. § 46B.072 (2010). 52. Id. at (d)(1). 53. Austin Travis County Integral Care, http://www.integralcare.org/nd=ccrp (last visited Oct. 11, 2010). 54. Tex. Code of Crim. Proc. § 46B.108(a) (2010). 55. Id. at (b). 56. Id § 46B.110. 57. Id. at (b). 58. Id § 46B.111. 59. Id § 46B.108(b). 60. Id., § 46B.109. 61. Id., § 46B.112. 62. Id., § 46B.113 (a). 63. Id. at (b). 64. Id. at (c). 65. Id. at (e) and thereafter, incompetency is presumed at the hearing unless refuted by a preponderance of the evidence. 66. Id. at (d) and thereafter, competency is presumed at the hearing unless refuted by a preponderance of the evidence. 67. Id., § 46B.116. 68. Id., § 46B.117. 69. Id., § 46B.115 (a). 70. Tex. Health & Safety Code § 574.106 (a) (2010); and id. at (a-1), is under court order to receive inpatient mental health ser vices, and clear and convincing evidence, that the patient lacks capacity to make own decision regarding medication and the proposed medication is in the best interest of the patient; and the patient presents a danger to self or others in the inpatient mental health or correctional facility. 71. Id., § 46B.086. 72. Id. at (a)(4). 73. Id. at (e). 74. Id. at (d); see, generally, Brian D. Shannon, Prescribing a Balance: The Texas Legislative Responses to Sell v. United States St. Mary’s L.J. (2010), http://www.stmaryslawjournal.org/pdfs/ Shannon_II.pdf (discussing the evolution of Texas’ approach to court-ordered medications). 75. Id., § 46B.0095, except if charged with a misdemeanor and ordered to participate in an outpatient treatment program, the maximum period is two years. 76. Id. at (b). 77. Id., § 46B.102, where charges remain pending; and id., § 46B.151, where charges have been dismissed. 78. Id., § 46B.102(a). 79. Tex. Health & Safety Code § 574.034–574.035 (2010). 80. Id., § 574.034(a); and id., § 574.035 (a). 81. Id. § 574.034. 82. Id., § 574.035. 83. Id., § 574.034(b). 84. Id. at (g). 85. Id., § 574.035(3) & (4). 86. Id. at (h). 87. Id., § 574.151(b). Jeanette Kinard is Director of the Travis County Mental Health Public Defender Office in Austin, Texas. Jeanette has a Bachelor’s Degree from the University of Texas at Austin and a Law Degree from the University of Houston in Houston. A frequent speaker, statewide, on the topic of the mentally ill in the criminal justice system, Jeanette is a member of the State Bar of Texas, Austin Criminal Defense Lawyers Association (President, 1994–95 and 2004–5), Texas Criminal Defense Lawyers Association (Board of Directors, 1996–2000), National Criminal Defense Lawyers Association, and the National Legal Aid and Defender Association. She serves on the Mayor’s Mental Health Task Force, the Texas Continuity of Care Task Force, and Travis County MH Jail Diversion Committee and is a Board Member for Capacity for Justice. Jeanette, a partner at Kinard & Kinard in Austin for 17 years, is editor of Kinard’s DWI Manual. She served six years on the District 9 Grievance Committee (1992–98) and was formerly a prosecutor in Harris, Bell, and Travis counties. Jeanette is a frequent contributor to Voice for the Defense magazine.
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 and 20: Proposed Changes to the TCDLA Bylaw
Page 21 and 22: When should you ask for a competenc
Page 23: anywhere from 30 days to 120 days o
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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