Under Art. 46.02 sec 3, a local mental health authority or disinterested expert experienced and qualified in mental health can examine a defendant with regard to his competency. However, if the defendant is found incompetent and there is substantial probability that he will attain competency in future - proceed under Section 5. Section 5 subsection b states the person shall not be committed to a mental health facility except on competent medical or psychiatric testimony. Can you use the same doctor who did initial exam of defendant as long as he is a psychiatrist or do you need two separate exams if you initially use a psychologist?

So far as I know, the issue has not been litigated. The literal language suggests that a psychologist not be used for the initial exam, since his testimony might not be sufficient to proceed further. My judge, however, has been using a psychologist and neither side has later contested the use of the psychologist's findings for the purpose of commitments under sec. 5(b). Use of a psychologist also requires appointment of a new examiner for purposes of sec. 6(b) and 574.035(g), too. Generally, where the parties are agreed as to the outcome of the "trial", these fine evidentiary points do not arise, although I think the resulting orders might be challenged on the very ground you raise if "competent medical and psychiatric testimony" means what it appears to mean. More importantly, this is actually a constitutional requirement. TEX. CONST. art. I, sec. 15-a

[This message was edited by Martin Peterson on 06-24-03 at .]