I know that the standard shifts to the state, per Manning, to demonstrate competency beyond a reasonable doubt before putting someone on trial or convicting them once incompetence has been shown on a prior case, but I would think that the state should only have to show by a preponderance of evidence that a defendant is incompetent, but that a restoration attempt is appropriate. My judge has determined that prior evidence of a defendant being "incompetent and not likely to regain" will be weighed very heavily in these matters, even if the defendant also has instances in his past where he been restored to competence after hospitalization. In effect, this makes it very hard to ever prosecute people again once they've ever been found incompetent and not likely to regain. Any thoughts? Anyone else having issues with this? I have psychiatrists who are saying that the hospital didn't even make a very good attempt at trying different meds before deciding that the defendant was UTR last time, and now it's created a challenging legal obstacle on subsequent cases, even when I have a doctor who thinks the defendant can be restored.

For what it is worth: We just plead such a case to state jail following a competency trial. Same doctor conducted both Subchapter B examinations.
We also have a defendant who, on a prior case, was found incompetent, sent to ASH for restoration, and released with a dismissal based on a "not likely to regain competency and no grounds for civil commitment" finding. After dismissal, they were charged with in a new case, found incompetent, and currently admitted to ASH for restoration. ASH had no objections and it has been 45(+) days. Logically if ASH believed their original findings were set in stone, we would have already received a pickup request with a note to see prior findings.

The decision in Manning is interesting in that Judge Davis found the 1975 addition of subsection 1(b) to CCP 46.02 to be consistent with the common law presumption of continued incompetence whenever incompetence had once been shown to exist. To me, since that presumption is not spoken of in the statute (which is now 46B.003(b)) and the sole presumption (without any stated exceptions) is always of competence, Manning is ripe for reconsideration despite the language of 1.27. The additional holding that "introduction of the prior, unvacated judgment of incompetency is the preferred means of showing such fact," seems illogical, especially considering the intervening advances in treatment of mental disease. But, how much weight must or should be given to that judgment seems to be a mystery.

Anyway, the UTR finding is made only to administer the now temporally limited
"restoration period." 46B.085. There is no finding that sufficient amelioration of the condition is impossible. And Manning makes clear the presumption of incompetence is rebuttable. See also 46B.108. I think subchapters E and F apply only to the disposition of the original case and have no bearing on how to decide the issue in a subsequent case.

I agree with that assessment. I leaned on a number of similar arguments in my hearing (pointing to 46B.085 to demonstrate that restorations on subsequent cases should be possible, for instance). My judge expressed concerns that the State was using the hospital system to lock away people who were hopelessly incompetent, despite the fact that I had a very credible, well-respected doctor testifying to the fact that my defendant was, in fact, capable of being restored. I don't appear to have a State's avenue of appeal from such a ruling, so my plan is to proceed with the civil commitment. I appreciate your insight.

If you let the argument carry all the way to a dismissal of the charge, then would not an avenue to appellate review open under 44.01(a)(1)?