Similar to a previous post:
20yoa male with the mental capacity of about a 4 yoa. Keeps committing family violence. I have criminal charges pending(Misdemeanor assault) and am contemplating having a competency hearing and getting him "placed" using that technique....anyone see any problems with that, or have a better soultion?
I am open to any and all ideas.

I was the expert on a case with far more dire consequences in Harris County a year or two ago and ultimately, a bed was found in one of the state facilities for the mentally retarded. Procedurally, the defendant was found not competent and not likely to regain competency. Because of Jackson v. Indiana, it is not possible to indefinitely confine a person who is not likely to regain competency. Thus, that determination having been made, the court concluded that due to mental retardation and meeting criteria for civil commitment, the case was transferred to the civil court having probate jurisdiction -- our first having managed to get him on the list for the 1st available bed in a state facility. MR commitments require a higher standard, i.e. beyond a reasonable doubt, as they are indefinite as opposed to MH commitments which are for 90 days the 1st go-round and 1 year thereafter.

If you have any questions contact me back channel or I will give you the names of several in the DA's office here who dealt with this and similar matters.

Thanks, I may do it.
If APS isn't able to help not sure what i will be able to do. Need to do something before someone really gets hurt or killed.Have briefly looked into the civil commitment, but just starting my research.
This defendant is the result on a incestuous rape, and i believe the mother(sister) was also MR.

I HAVE TWO CASES LIKE THIS AND HAVE NO IDEA HOW TO PROCEED.One raped a 4 year old and has active aids so he has mental issues. the other is a gang member who has done too many inhalants and wants to kill someone but has been found incompetent without any chance of regaining his ability. So he kills someone and walks free because he is insane!!!!Need somw major help here in Hell

There are multiple issues here - one of which is that these defendants never make it to NGRI because they are never restored to competency. The twist viz. finding long-term care is that if the defendant's incompetency is due, in crude terms, to brain damage secondary to substance or inhalant abuse, it is questionable whether any facility for the developmentally disabled will accept him as he is not "mentally retarded" or "developmentally disabled" as contemplated by the statute.

The only alternative is vigorous prosecution on a civil basis, setting up time-lines in advance so as to anticipate the necessity for renewals, getting to extended commitment ASAP, co-opting the local MHMRA to support that hospitalization is the LRA. The problem, of course, is H&S 574.086 which, with MH commitments, unlike NGRI commitments, allows the facility to discharge the patient without the consent of the court if they believe he no longer meets criteria. You can, however, lean on the facility to provide a continuing care plan under H&S 574.081 prior to discharge, which provides advance warning. And, you can be prepared to hold a new hearing, with recent evidence (which is generally not hard to establish).

Please note that the facilities will try the same thing with NGRI commitments despite the fact that the law prohibits such.

Feel free to call, my number is on the state bar database and may be on my profile as well.

Finally, I forgot to mention that an prior determination of unrestored competency doesn't mean that in a new case the defendant would not then be found competent, it just shifts the burden to the State to prove that the defendant is now competent.

[This message was edited by Floyd L. Jennings on 10-09-06 at .]

With regard to your 20 year old with a 4 year old's mental capacity: is this a person who may already be the subject of a civil commitment for mental retardation that might still be in place? As Floyd points out, a civil commitment for mental retardation (unlike a mental illness commitment) is for an indefinite period, i.e., it can be for life. If you have that situation, you may be able to have him ordered returned to the Department or community center or facility to which he was committed. For the law on mental retardation commitments, see Health & Safety Code Chapter 593 - 594.

Note-- there are a few situations where a mental retardation commitment might end, such as by an appeal or habeas setting aside the commitment. Or, they might have been discharged under Chapter 594 (if that is the case, there will be paperwork in the file of the committing court, where you would otherwise get your certified commitment order).

With regard to the person with HIV who is going around exposing others -- if the criminal justice system runs out of options, there is a way to civilly commit a person who has a contagious disease and poses a risk to self or others. Typically, this is used for persons who have TB and refuse to take the health measures necessary to not spread the disease to others. But, it can be used for a person with HIV who is intentionally exposing others and won't curb their sexual activity or use protective measures. Your local health department is part of this process; first the person is administratively ordered to follow certain measures and if they refuse then you can proceed to commitment. For the law on that, see Health & Safety Code 81.050, et seq.

Good luck to you all,

A.D.