We have a visiting judge assigned to a case where a defendant charged with retaliation (against our sitting district judge) is incompetent. In a recent jury trial, the defendant was found incompetent and not likely to regain and was also found to be mentally ill and requiring inpatient mental health services. He has not received treatment, etc. for at least 60 days in the last year. By my reading of 46.02, this translates to a 90 day commitment to the state hospital under Section 6(b)(4).

The problem is that we have been down this road before with this defendant on a prior case, and the visiting judge doesn't think it's right that he can only send the defendant to inpatient for 90 days instead of a year. Also, despite the language in 46.02, does not see the need for another jury trial in 3 months and thinks all it should require next time is a judicial finding. I've been told my position can't be right & I need to investigate this further.

Is there something I'm missing? Any ideas on how to avoid another trial in 90 days or a jury trial?

Kind of strange, but since the defendant was found to have no substantial probability of regaining competency, the initial order is limited to 90 days under sec. 6(b)(4) rather than the 18 months allowed by sec. 5(a). Further recommitments fall under sec. 574.035 of the Health & Safety Code. See sec. 6 (b)(7). Those, in turn, get renewed at least every 12 months. 574.035 (h). And, the kicker, the requisite findings under subsection (a) of 574.035 must be made by a jury (under current law) unless the defendant waives a jury in accordance with 574.032(c). See 574.032(b). At least, that is how we have been interpreting the law. If you could show that in connection with the prior proceeding the defendant had been under observation or treatment for at least 60 days "within the 12 months immediately preceding", then you would initially get a 12 month order. But, short of this, I think your position is correct. I must admit, however, that I have no idea what sec. 571.011(b) of the Health & Safety Code means.

This will be changed by Chapter 46B when it goes into effect in January (in that the intial commitment will be for 120 days under 46B.073(b) and arguably the next hearing will be conducted exclusively by the judge under 46B.102(a) and any renewal orders will be made under 46B.107 without a jury's involvement). But, art. 46B applies only "to a defendant against whom proceedings have not been initiated under Article 46.02, Code of Criminal Procedure, before" January 1, 2004.

[This message was edited by Martin Peterson on 06-23-03 at .]

I am sure this has been answered by someone else, and please forgive my ignorance. But, how does an individual, adjudicated incompetent, have the competency to waive jury trial for additional determination of competency?

The jury hearings referred to above deal with whether the defendant continues to meet the criteria for inpatient treatment (degree of mental illness). Once competency is to be redetermined, that must be before a jury "unless waived by the agreement of the parties." sec. 8(e). I think that means the defendant's attorney is in the driver's seat. Of course, at that point, the experts are also stating the defendant is competent.

The Mental Health Code is slippery regarding jury waivers. It expressly contemplates waiver of a jury for an extended commitment hearing by "the proposed patient or the proposed patient's attorney[.]" Yet, that waiver must be signed under oath by both the proposed patient and the attorney for the patient, or made in open court by both the patient and attorney. This seems to dovetail with the reposition of ultimate decisionmaking authority concerning litigation matters, regardless of competency, in the proposed patient. See Tex. Health & Safety Code sec. 574.004(c). Of course, I had more than one commitment case in which the proposed patient stood at the window waving and explained that -- you guessed it -- he/she was "waiving the jury."