We have a case involving a aggravated sexual assault committed by a juvenile who was found incompetent to proceed in juvenile court due to mental retardation under Ch 55 of the Family Code. The juvenile court ordered the child to be placed in the custody of the Department of Aging and Disability Services (DADS). DADS placed the juvenile at a state school, and later moved the defendant into a group home setting. When the juvenile turned 18, we filed a motion transferring his case to district court.

We are in the middle of conducting competency proceedings in district court when we hit a snafu. Unbeknownst to us or the court, DADS terminated its supervision of the defendant shortly after his 18th birthday. Defendant is still in a group home, but is now receiving services from a county MHMR, and his guardian could presumably remove him from these services at any time. The district court wants to meet with our office and the defendant's attorney and decide how to proceed.

I'm lost in how this happened. I'm trying to find if DADS was acting on any specific authority when it terminated supervision of the defendant, or did it violate the juvenile court's order when it terminated its supervision without an order from the court. I presume that the juvenile court order is still valid now that the case has been transferred to criminal court, but I'm not sure.

It is clear that we want to proceed on the criminal case if the defendant is found competent. However, I'm not sure how we're going to get the competency evaluation done now that the defendant isn't being supervised by DADS. I don't believe that we can indict the defendant until after he is found competent under CCP Ch 46B, meaning we probably can't arrest him and hold him in the jail until competency is determined. His county MHMR or group home could possibly assist with the facilitating the evaluation, but they aren't under orders of any court regarding this case, and there's nothing preventing his guardian from removing him from the group home.

Anyone been through one of these before? To my knowledge, this is the first time my office has decided to transfer a case like this. Was DADS acting lawfully when it discharged the defendant? If not, can we fix it, with a show cause hearing or some other remedy? If they were acting lawfully, how should we proceed with the evaluation?

Thanks for reading, and hopefully responding!

It is difficult to know absent careful examination of the file; however, ordinarily the sequential events would be:
a. An unfitness to proceed determination based upon an examination and evaluation; 55.31ff, followed by,
b. If found unfit, a Chapt. 55.40 commitment similar to 46B.103; and
c. A restoration hearing under 55.43 - "if not discharged.." - which requires court notification. A 3g offense requires notice and opportunity for a hearing.

It would appear that 55.44 (transfer) presumes the def remains unfit, until there is re-evaluation and hearing on the issue (now) of competency.

As well, there is no reason why your office cannot obtain an order for a competency examination, given the facts you present, which can be done without necessity for taking the def into custody. After an adjudication, if def appears incompetent - proceed via the usual route.

Would others recommend differently?