Since Chapter 46B applies only to a defendant against whom incompetency proceedings have NOT been initiated prior to January 1, 2004, exactly what constitutes "initiating the proceedings." I have a case where the defense asked for a competency exam in December 2003 and the exam was conducted after January 1, 2004. The results are now in finding the defendant incompetent. Does merely requesting an exam "initiate the proceedings?"

Shannon Edmonds wrote an incredibly thorough article on the new incompetency laws in the Nov/Dec 2003 Prosecutor. Download it in PDF form from this web site, or email me your fax number and I'll send you a copy.

Despite Sarah's nice plug, I somewhat skated over this issue in my article because there is no definitive answer.

My best guess is that your case would be governed under old CCP 46.02 if the court ordered the defendant to be examined for competency before 12/31/03 (pursuant to old 46.02, Sec. 3). That's under an admittedly broad interpretation of "proceedings," but I don't think you'll find anything authoritatize on what that term means in this context.

Sorry we don't have a better answer, but as we like to say around TDCAA ... "good luck with that -- and let us know how things work out!"

There really isn't all that much substantive difference between the old and new competency laws. They are more clearly written in the new ones, but not a lot of new procedures. Except for being able to skip a jury trial on incompetency if everyone (meaning judge, prosecutor and defense attorney) agrees that defendant is incompetent.

Given that your court-order for exam occurred before the new law, I would think, to be safe, you should hold a jury trial on competency, even if everyone agrees the defendant is incompetent.