I have a 37-year-old male defendant who pointed a knife at officers. No one was hurt but the defendant was charged with Aggravated Assault. He was sent to Vernon's Hospital and we received a report from the doctor (Sandy Le) that says: "It is the opinion of the evaluator that the defendant is incompetent to stand trial, and there is no substantial probability that the defendant will become competent in the forseeable future. What can or should I do next? Dismiss the case or wait and see if the defendant becomes competent? Where does he stay? In the county jail or Vernon's Hospital? Can we legally hold him and for how long?

Sounds like you need a copy of TDCAA's Mental Defenses by ADA Jane Starnes. Available at tdcaa.com.

First, look at 46B.084 ff. You will essentially proceed under the subsequent Subchapter E, presuming you do not intend to drop charges.

Second, it is not necessary in this note to reiterate the language of 46B. However, not being privy to the content of Vernon's report I cannot comment on the weight I might or might not give to the conclusion that the def is unlikely to regain competency. Should you proceed under .102ff, you will obtain two medical certificates and the evidentiary rules of The Mental Health Code will apply. You can send the def back to Vernon. That commitment will be for a period of 90 days with a possible renewal for one year.

Aside from the procedures associated with the hearing, Your problem will be getting Vernon to accept the def, or getting on the now-state-wide list, inasmuch as many defendants adjudicated incompetent are languishing in county jails because the state mental health system has refused to take them (for a variety of reasons not the subject of this reply) -- which of course, poses an enormous liability and burden on your county.

Finally, the best of all worlds from a prosecutorial point of view would be to see if an examiner locally would find the def competent, (despite Vernon's opinion) and even though the burden has shifted to you to prove competency, you would nonetheless be in a better position. Counsel would likely contest so you would end up with a contested competency, but what do you have to lose?