By Criminal Defense Laywer Jeremy Rosenthal
(972) 369-0577
“Competency” is the ability to stand trial. Texas law provides a complex web of procedures which deal with making sure an accused is mentally capable of being tried.
“Incompetency Defined”
It is defined by Tex.Code.Crim.P. 46B.003 which holds:
(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.
Translation: competency is a somewhat low threshold.
A Rational, Factual Understanding Isn’t Enough
A misnomer is where a person understands basics about their charge such as the nature of the accusation, the role of defense counsel, the prosecutor and the judge – that they are okay to be tried. Even judges make this mistake.
The person’s “sufficient present ability to consult with the person’s lawyer” is also crucial. Often highly intelligent and high functioning defendants can still sometimes not have a coherent discussion with counsel.
Many people suffering from things like severe anxiety, manic behavior, or racing thoughts simply can’t keep it together for the time it takes for their lawyer to properly advise them – let alone try to get details to mount an effective defense. To me, this is the very essence of “incompetency.”
Suggestion of Incompetency
If a lawyer is concerned their client may have enough issues which affect their ability to stand trial – the lawyer can and should file with the Court a “Suggestion of Incompetency.” It puts the case on pause though it does sound a bit harsh. The prosecution can file the motion and in some instances the Court can make the suggestion as well.
The trial judge then appoints a mental health professional to do a competency evaluation. The Court then holds a hearing after the evaluation is complete and finds either defendant is competent to stand trial or he/she is incompetent for the purposes of trial. If they are competent then the case resumes.
What Happens When the Accused is Found to be “Incompetent”
Mental health professionals attempt to restore the accused to competency through mental health treatment. It can be in-patient or out-patient depending on the severity of the charge, whether the person is on bond, and the resources available to the county.
Any confinement in a state hospital cannot exceed the maximum punishment range for the charge. In other words the maximum punishment for assault causing bodily injury is 1-year. In theory a person could be confined for the entire year being ‘restored’ but no longer.
Mental health providers routinely update the Court and if the person is restored to competency — sometimes as simply as getting a person the correct medication — the case then proceeds.
What Happens When the Defense And Prosecution Disagree About Competency?
Most of the time the Judge, prosecution and defense agree on competency issues. In cases where we don’t, Defendant has the right to invoke a right to a jury to prove they are, in fact, incompetent to stand trial. This would be a way of demanding help for mental illness where the prosecution and/or Judge minimize the impact of mental health or see it as an excuse to avoid responsibility for a crime.
Why Would Someone’s Own Lawyer File a Suggestion of Incompetency Which Could Result in Confinement?
This is a fantastic question. And perhaps they shouldn’t for this very reason depending on the severity (or lack of severity) of the charges. A lawyer hired to defend a client from the charges they are facing. A client needs to be able to fight those charges. If a lawyer were to enter into a plea bargain or have the client participate in a trial they doesn’t understand – this could very often lead to a far worse result than mental health restoration in a state hospital. Again – this precise issue is a fantastic debate without a clear answer.
*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization. He is designated as a Texas Super Lawyer by Thomson Reuters.
