The following fact pattern has now occurred in two cases, the following is but a FYI:

First a def , in his present case, was opined not competent and not likely to be restored. However, for reasons unclear, he was nonetheless committed for restoration despite a prohibition of such for persons unlikely to be restored (see 46B.071b), though there was no evidence of a finding on that issue. The facility has raised the issue – because it costs the county $35k to restore defendants, on the average -- not to say that such commitments would skew restoration results.

Second, the same def was found incompetent in his most immediate prior case – and was unrestored, which creates a burden shift such that the State must now prove competency beyond a reasonable doubt in his present case. See Manning v. State, 730 S.W.2d 744 (Tex. Crim. App. 1987), Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996).

Third, I have suggested to the competency/sanity unit at the jail that it may be proper for such an opinion, i.e. not likely to be restored, and unlikely to be restored, to be bolded and underlined, e.g. “It is my opinion that this defendant is not only NOT COMPETENT, but NOT LIKELY TO BE RESTORED IN THE FORESEEABLE FUTURE” (where “foreseeable future” means the amount of time available to the court for restoration 120 days + a possible 60 day extension for felony cases, or 60 days + a possible 60 day extension, for misdemeanor cases). This is in the hope that counsel for both parties, as well as courts will appreciate that a different rule applies.