SB 553 Task Force Adopts Recommendations for Legislative Consideration

Patricia Gray, M.A., M.Ed., J.D., LL.M. Candidate

 Senate Bill 553 from the 77th Legislature created a task force charged with reviewing the methods and procedures used to evaluate a criminal defendant's competency to stand trial.  Specifically, the task force was charged with examining the process by which a competency examination is initiated, the procedures used for those evaluations, and the methods used to select the examiners, including their qualifications and training.  In addition, the task force was directed to consider ways to improve the cost effectiveness of the examination process, including maximizing third party payment for such exams and assessing the potential for using telepsychiatry for such exams.

 The SB553 task force met in work groups and in public sessions to receive comment from interested parties.  There were four work groups.  The first focused on a review of statutory and constitutional issues.  The second evaluated requirements for information to be included in an evaluation report and the standards that examiners should meet.  The third examined ways to improve early identification of defendants with possible mental illness or mental retardation and to improve follow-up and continuity of care for these inmates.  A final work group was created to examine the issue of compelling medication for the purpose of maintaining competency to stand trial.

The task force adopted four sets of recommendations calculated to improve the processes of dealing with defendants who appear to be incompetent.  The first set of recommendations focuses on early identification of inmates who may have a mental illness or mental retardation and "flagging" these inmates’ records in a manner so that any person involved in the administration of the criminal justice system who has reason to review these inmates’ records will be able to readily identify the inmates’ status.  A second set of recommendations focuses on developing community-based alternatives for non-violent offenders in need of competency restoration and diversion of some offenders to court-monitored treatment programs instead of prosecution and incarceration.  The third set of recommendations proposes that barriers to sharing information between criminal justice agencies and treatment facilities and programs be minimized.  Finally, the task force recommended the creation of a pilot project to evaluate the use of telepsychiatry, at least for the initial assessment of an inmate suspected of having mental illness or mental retardation.

The task force also adopted several recommendations specifically related to streamlining and clarifying procedures used in the determination of competency to stand trial. On March 10, 2003,  Robert Duncan (R., Lubbock), chair of the SB553 Task Force, filed Senate Bill 1057 which incorporates the recommendations of the task force.  The companion bill is House Bill 2014 by Terry Keel (R., Travis), chair of the House Committee on Criminal Jurisprudence.  Hearings for the Senate bill are set for March 19, 2003.

The first major proposed change eliminates the requirement for a jury to determine a defendant's competency if neither party opposes a finding of incompetence to stand trial and the court concurs that a jury trial would just be a formality.   A second major change would eliminate the admissibility of any statement made by a defendant during a competency exam except at a hearing to determine competency to stand trial.   Current Texas law allows the admission of such statements during the punishment phase of a trial if a defendant is found guilty.  The third major change imposes training requirements for any person who will be conducting competency examinations and sets a deadline for those not meeting the requirements to attain compliance.  This recommendation further clarifies the information required in evaluation reports filed with the court, including a requirement that the examiner state issues on which he/she could not render an opinion.  The fourth major change sets out the method by which a court may require an inmate to take medication to maintain competency.  The recommendations adopted by the Task Force would require that a defendant who has been found incompetent to stand trial and for whom a continuity of care plan includes medication may be compelled to take the medication if the court determines by clear and convincing evidence: that the prescribed medication is medically appropriate; that taking medication will not unduly prevent the defendant from participation in the trial; that it is in the best medical interest of the defendant to take the medication; that the benefits of medication are greater than the potential harmful side effects; that the state has a clear and compelling interest in the defendant maintaining competency to stand trial; that no other less invasive means of maintaining the defendant's competency exists; and that the prescribed medication will not unduly prejudice the defendant's rights at trial.  This provision also includes the requirement that any statements made by the defendant to an examining physician for purposes of determining whether to compel medication are inadmissible in any criminal proceedings against the defendant.

The proposed legislation deals only with competency to stand trial and does not address the question of maintaining competency after conviction for an offense.