TDCAA Community
Must we have live testimony for agreed incompetency?

This topic can be found at:
http://tdcaa.infopop.net/eve/forums/a/tpc/f/157098965/m/588105203

October 13, 2004, 15:35
WHM
Must we have live testimony for agreed incompetency?
I have a case in which the court's expert has examined the defendant and found him incompetent with a foreseeable recovery if treated. Both aprties agree that he is presently incompetent and the defendant is currently out on bond. Neither side will be requesting a jury trial. Can we simply have a hearing in which we introduce the expert's report and get the judge to sign an order, or must we have live testimony when the outcome is presumably a foregone conclusion?

Also, does anyone have a model judgment you could provide with reference to this situation? I'd appreciate any help.
October 13, 2004, 16:18
Shannon Edmonds
Art. 46B.005. Determining Incompetency to Stand Trial

(c) The court is not required to hold a hearing if:
(1) neither party requests a jury trial on the issue of incompetency;
(2) neither party opposes a finding of incompetency; and
(3) the court does not, on its own motion, determine that a hearing is necessary to determine incompetency.

The expert's report should already be in the court file pursuant to 46B.026, and that's sufficient to send him off. Note also that the old "substantial probability he will/will not regain competency" standard is no longer required.

(this all assumes the competency issue arose after 1/1/04)

As for a form, check with Jane Starnes in Williamson County (512-943-1234) -- she's preparing a TDCAA book on this topic and might have one she can share.
October 14, 2004, 18:19
Martha W. Warner
Wes, We've done this a number of times. You just need to voir dire the jury carefully so they understand that there will be stipulated evidence by way of the Psych report.Also you really need to call Vernon's State Hospital and talk to intake and ask for them to help you with your Judgement.They have some specific language that they need in their judgments and are always very helpful.
October 15, 2004, 08:55
A. Diamond
There are two issues. One is the incompetency. The other is the possible commitment, if the defendant is found incompetent. Personally, just an opinion, but I am a lot more comfortable when the stipulation is not just 'we stipulate that the facts are as follows' but 'we stipulate that the testimony would be as follows, if the Dr. X were called to testify', if your judge will let you do that.

Texas Constitution
Art 1, Sec. 15-a. Commitment of persons of unsound mind

Sec. 15-a. No person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony. The Legislature may enact all laws necessary to provide for the trial, adjudication of insanity and commitment of persons of unsound mind and to provide for a method of appeal from judgments rendered in such cases. Such laws may provide for a waiver of trial by jury, in cases where the person under inquiry has not been charged with the commission of a criminal offense, by the concurrence of the person under inquiry, or his next of kin, and an attorney ad litem appointed by a judge of either the County or Probate Court of the county where the trial is being held, and shall provide for a method of service of notice of such trial upon the person under inquiry and of his right to demand a trial by jury.