Key Information

Relevant Statutes and Rules

Tex. Code Crim. Proc. Ann. art. 46B.001 et seq. 

What proceedings can occur while the defendant is incompetent

"At any time during the proceedings under this chapter after the issue of the defendant's incompetency to stand trial is first raised, the court on the motion of the attorney representing the state may dismiss all charges pending against the defendant, regardless of whether there is any evidence to support a finding of the defendant's incompetency under Subsection (d) or whether the court has made a finding of incompetency under this chapter."

Tex. Code Crim. Proc. Ann. art. 46B.004(e) (West)

Number of examiners required

1

Tex. Code Crim. Proc. Ann. art. 46B.021(a) (West)

Qualifications of examiners

"a psychiatrist or psychologist must:
(1) as appropriate, be a physician licensed in this state or be a psychologist licensed in this state who has a doctoral degree in psychology; and
(2) have the following certification or training:
(A) as appropriate, certification by:
(i) the American Board of Psychiatry and Neurology with added or special qualifications in forensic psychiatry; or
(ii) the American Board of Professional Psychology in forensic psychology; or
(B) training consisting of:
(i) at least 24 hours of specialized forensic training relating to incompetency or insanity evaluations; and
(ii) at least eight hours of continuing education relating to forensic evaluations, completed in the 12 months preceding the appointment.
(b) In addition to meeting qualifications required by Subsection (a), to be appointed as an expert a psychiatrist or psychologist must have completed six hours of required continuing education in courses in forensic psychiatry or psychology, as appropriate, in either of the reporting periods in the 24 months preceding the appointment.
(c) A court may appoint as an expert a psychiatrist or psychologist who does not meet the requirements of Subsections (a) and (b) only if exigent circumstances require the court to base the appointment on professional training or experience of the expert that directly provides the expert with a specialized expertise to examine the defendant that would not ordinarily be possessed by a psychiatrist or psychologist who meets the requirements of Subsections (a) and (b)."

Tex. Code Crim. Proc. Ann. art. 46B.022 (West)

What must the evaluation report contain

"(a) An expert's report to the court must state an opinion on a defendant's competency or incompetency to stand trial or explain why the expert is unable to state such an opinion and must also:
(1) identify and address specific issues referred to the expert for evaluation;
(2) document that the expert explained to the defendant the purpose of the evaluation, the persons to whom a report on the evaluation is provided, and the limits on rules of confidentiality applying to the relationship between the expert and the defendant;
(3) in specific terms, describe procedures, techniques, and tests used in the examination, the purpose of each procedure, technique, or test, and the conclusions reached; and
(4) state the expert's clinical observations, findings, and opinions on each specific issue referred to the expert by the court, state the specific criteria supporting the expert's diagnosis, and state specifically any issues on which the expert could not provide an opinion.
(a-1) The expert's opinion on the defendant's competency or incompetency may not be based solely on the defendant's refusal to communicate during the examination.
(b) If in the opinion of an expert appointed under Article 46B.021 the defendant is incompetent to proceed, the expert shall state in the report:
(1) the symptoms, exact nature, severity, and expected duration of the deficits resulting from the defendant's mental illness or intellectual disability, if any, and the impact of the identified condition on the factors listed in Article 46B.024;
(2) an estimate of the period needed to restore the defendant's competency, including whether the defendant is likely to be restored to competency in the foreseeable future; and
(3) prospective treatment options, if any, appropriate for the defendant."

Tex. Code Crim. Proc. Ann. art. 46B.025 (West)

Are low-level offenses excluded from restoration

None stated.

Is there a pathway for diversion following a finding of incompetence to stand trial

None stated.

What are the locations for restoration services

Misdemeanor:
(1) must be outpatient if defendant is not a danger to others and may be safely treated on an outpatient basis, and an appropriate outpatient competency restoration program is available.
(2) If not, then defendant is committed to either jail-based program or inpatient program.

Felony:
(1) may be outpatient under same criteria as above.
(2) if not, then defendant is committed to either jail-based program or inpatient program.

Tex. Code Crim. Proc. Ann. art. 46B.071,.0711,.072 (West)

What is the test for restorability

"unlikely to be restored to competency in the foreseeable future"

Tex. Code Crim. Proc. Ann. art. 46B.071(b) (West)

What is the procedure after restoration

"(b) The head of the facility or jail-based competency restoration program provider shall promptly notify the court when the head of the facility or program provider believes that:
. . .
(2) the defendant has attained competency to stand trial"

Tex. Code Crim. Proc. Ann. art. 46B.079 (West)

"Not later than the next business day following the return of a defendant to the court, the court shall notify the attorney representing the state and the attorney for the defendant regarding the return. Within three business days of the date that notice is received under this subsection or, on a showing of good cause, a later date specified by the court, the attorney for the defendant shall meet and confer with the defendant to evaluate whether there is any suggestion that the defendant has not yet regained competency."

"Following the defendant's return to the court, the court shall make a determination with regard to the defendant's competency to stand trial. The court may make the determination based only on the most recent report that is filed under Article 46B.079(c) and based on notice under that article, other than notice under Subsection (b)(1) of that article, and on other medical information or personal history information relating to the defendant. A party may object in writing or in open court to the findings of the most recent report not later than the 15th day after the date on which the court received the applicable notice under Article 46B.079. The court shall make the determination not later than the 20th day after the date on which the court received the applicable notice under Article 46B.079, or not later than the fifth day after the date of the defendant's return to court, whichever occurs first, regardless of whether a party objects to the report as described by this subsection and the issue is set for hearing under Subsection (b)."

[less-definite timing for counties with population fewer than 1.2 million or more than 4 million.]

"If the defendant is found competent to stand trial, on the court's own motion criminal proceedings in the case against the defendant shall be resumed not later than the 14th day after the date of the court's determination under this article that the defendant's competency has been restored.
(2) Notwithstanding Subdivision (1), in a county with a population of less than 1.2 million or in a county with a population of four million or more, on the court's own motion criminal proceedings in the case against the defendant shall be resumed as soon as practicable after the date of the court's determination under this article that the defendant's competency has been restored."

Tex. Code Crim. Proc. Ann. art. 46B.084(d) (West)

What is the procedure if there is a finding of unrestorability

The court shall:

(1) proceed with civil commitment proceedings; or
(2) release the defendant on bail.

Tex. Code Crim. Proc. Ann. art. 46B.071(b) (West)

What are the time limits on initial transfer to restoration services

Time limit runs from date of the order of initial commitment and includes time in a correctional facility waiting for transfer.

Tex. Code Crim. Proc. Ann. art. 46B.0095(c) (West)

What are the time limits for treatment

N/A

What is the process if time limit is reached without restoration

"[T]he mental hospital, facility, or program provider identified in the most recent order of commitment or order of outpatient competency restoration or treatment program participation. . . shall assess the defendant to determine if civil proceedings . . . are appropriate. The defendant may be confined for an additional period in a mental hospital or other facility or may be ordered to participate for an additional period in an outpatient treatment program, as appropriate, only pursuant to civil proceedings conducted under Subtitle C or D, Title 7, Health and Safety Code, by a court with probate jurisdiction."

Tex. Code Crim. Proc. Ann. art. 46B.0095(b) (West)

If charged with misdemeanor, the court shall either (1) on motion of prosecutor, dismiss the charge, or (2) on motion of defense attorney, hear the matter and may dismiss the charge on a finding that the defendant was not tried before the expiration of the maximum period of restoration.

Tex. Code Crim. Proc. Ann. art. 46B.010 (West)

Are there prohibitions on revoking pretrial release or competency as a pre-trial release factor

None stated.

Time limits on treatment

"maximum term provided by law for the offense for which the defendant was to be tried, except that if the defendant is charged with a misdemeanor and has been ordered only to participate in an outpatient competency restoration or treatment program under Subchapter D or E, the maximum period of restoration is two years."

Tex. Code Crim. Proc. Ann. art. 46B.0095(a) (West)