I have a strange situation in an contested MTR. Defense counsel raised competency and defendant then refused to participate in the exam. Expert rendered an opinion of incompetency regardless. The Court chose not to rely on the evaluation of incompetency due to the lack of defendant's participation. The defendant then insists to his attorney that he is competent and we proceed to a hearing on the MTR. Evidence is pretty clear from the MTR hearing that the defendant is incompetent and the judge halts the MTR proceedings for further competency proceedings . . . presumably a competency trial. The defense attorney, the judge, and I all agree that this fellow is incompetent. Since 46B.051 is worded such that a jury is only required at the "request" of a party or the court (not an actual waiver), is the defense counsel in ethical trouble if he doesn't request a jury trial? Who is in the driver's seat . . . the defense counsel or the incompetent defendant?

Perhaps another way to ask the same question: Does 46B.054 allow defense counsel to agree to incompetency finding even though his client insists he is competent?

After examining only the statutes and Thompson v. State, 654 S.W.2d 26 (Tex. App. 1983), my thoughts are:

The presumption of competence prevails until the opposite is shown. CCP 46B.003(b).

No trial is required unless one of the things stated in CCP 46B.005(c) occurs. Under (c)(2), (3) the court can make a finding on its own.

Does defense counsel have an ethical duty to assert incompetence? I would say no, because the issue can be raised on the court's own motion (whether or not the defendant or his counsel agrees). CCP 46B.051(b).

The real issue arises under CCP 46B.054, which seems to require acquiescence of defense counsel in the so-called "uncontested" finding before Subchapter D comes into effect. I would say at that point the defendant must either abandon his claim or it must be overridden.