Defendant originally indicted for felony but probated on misdemeanor indecent exposure with a second misdemeanor probation running consecutively. Competency was always a borderline issue, and at the hearing for the MRP, he was determined incompetent and shipped off to Vernon.

They say he will not regain competency. He already has close to 300 days in custody on his class B misdemeanor, but he has not been revoked on the first one.

Under Art. 46, my understanding is you cut people loose once they served the maximum possible sentence, although you could seek a purely civil commitment. 46B.102 does not seem to have that requirement, in which case I do not have to have separate civil hearing no matter how long Def is in jail.

Has anyone had a return competency hearing for a misdemeanor under this statute? Am I reading this correctly?

Any thoughts are appreciated. The sheriff wants the guy in our jail as little as possible.

Both 46B.102 and 46B.009 refer to continuing procedures under the Mental Health Code's civil commitment provisions and could arguably be read to get around the max. confinement period to eventually get a conviction if the defendant regains competency, I suppose. This interpretation is arguably inconsistent with the legislative intent behind that new language, but there's no caselaw on it yet b/c it is so new.

I guess the real question is, what's the point of keeping charges pending against him?


*For more than you ever wanted to know about mental defenses, check out TDCAA's new book on the topic by Williamson County ADA Jane Starnes. The book is entitled (aptly enough) "Mental Defenses," and it is fully updated with all the new legislative changes from the 2005 Session.

First, 46B.010 defines the absolute time limit you have to work with viz. maintaining charges.

Second, .084 & .085 define what happens upon return (if the def has been returned and was not extended in Vernon/Rusk).

Third, .104 will allow an extended commitment -- under MH Code rules but in the criminal court that would allow up to one year of continued treatment.

The issue to be decided is whether he (a) needs continued treatment, and (b) meets criteria for commitment. If the answer to both is "yes", then the def deserves to be subject to 46B proceedings because the civil system is bankrupt and he won't get it there...

Floyd L. Jennings, J.D., Ph.D.
Houston