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Eliminate the Wait

Rightsizing Texas Competency Restoration Services

The competency to stand trial process is designed to protect the rights of people who do not understand the charges against them and are unable to assist in their own defense. Like other states across the U.S., Texas faces a growing crisis in the number of people who are waiting in county jails for inpatient competency restoration services after being declared incompetent to stand trial (IST). Not only has this increased costs and overburdened state agencies and county jails but it also is taking a significant toll on the health and well-being of people waiting in Texas jails for inpatient competency restoration services. Meanwhile, resources available to the behavioral health and justice professionals serving our communities are becoming scarce.

It is time to right size competency restoration services for Texans by taking a comprehensive and integrated approach to this challenge. The Judicial Commission on Mental Health and the Health and Human Services Commission asks judges, prosecutors, defense attorneys, sheriffs and jail staff, police, and behavioral health providers to join their collaborative effort to change how Texas serves people at the intersection of mental health and criminal justice. We all have a role to play to ELIMINATE THE WAIT.

This toolkit includes a set of strategies that stakeholders can implement to help eliminate the wait for inpatient competency restoration services in Texas.

“We applaud this collaborative effort to raise awareness about competency-restoration services and best practices. It engages courts, law enforcement, and mental health professionals in an effort to better use state resources for people with mental health disorders or intellectual and developmental disabilities who encounter our justice system.”

Hon. Jane Bland, Justice, Supreme Court of Texas; Chair, JCMH
Hon. Barbara Hervey, Judge, Court of Criminal Appeals of Texas; Chair, JCMH

“We have a responsibility to work across systems to reduce and prevent justice involvement and connect people to care in the community. When competency restoration is needed, it should be for the purpose it was intended: to provide stabilization and legal education.”

Sonja Gaines, Deputy Executive Commissioner for HHSC Intellectual and Developmental Disability and Behavioral Health Services
Scott Schalchlin, Deputy Executive Commissioner for HHSC Health and Specialty Care System

The Causes

People with a mental illness or an intellectual or developmental disability are often arrested when diversion is appropriate and possible. The Texas Code of Criminal Procedure Art. 16.23(a) states, officers shall make a good-faith effort to divert a person who is suffering a mental health crisis or suffering from the effects of substance abuse to a proper treatment center in the law enforcement agency’s jurisdiction. (The factors in Tex. Code Crim. Proc. Art. 16.23(a)(1) through (4) must also be met. Certain offenses are not eligible pursuant to Tex. Code Crim. Proc. Art. 16.23(b)

Competency evaluation orders are often tied to a well-intended, but inaccurate, understanding of competency restoration services. Some people view competency restoration as a way to connect a person with mental health treatment. The reality, however, is that competency restoration services have a narrow focus on stabilization, symptom management, and required legal education. This is not the same as providing access to a fully developed treatment plan and treatment services with the goal of long- term recovery and rejoining the community.

The process does not currently operate at maximum efficiency. It can take months to over a year from the time incompetency is raised to the final disposition of the criminal case. This is, in part, due to inefficiencies in managing case flow, communicating between parties and scheduling. Sometimes a person who has been restored at a state hospital and returned to jail experiences deterioration of their mental health while waiting for their competency hearing.

The Solutions

Build a state roadmap for eliminating the wait. JCMH and HHSC are launching the Eliminate the Wait initiative to provide an actionable roadmap for reducing and eliminating the waitlist for inpatient competency restoration services.

Develop tailored resources and technical assistance. Using evidence-based strategies, JCMH and HHSC are working together to develop new trainings and educational materials focused on opportunities for diversion to treatment at all points in the criminal justice system. These will be used by judicial officials, jail staff, local mental health authorities, people who have lived experience with incompetency to stand trial, and the public.

Enhance accountability. Through pilot programs, resources, and research, JCMH and HHSC will contribute to our understanding of the public safety and fiscal implications of reducing and eliminating the wait. Millions of taxpayer dollars and thousands of public safety hours are spent each year on services related to competency restoration — from arrest to inmate housing, court proceedings to inpatient state hospital stays, and, finally, to disposition. Eliminating the wait for inpatient competency restoration services brings accountability to public safety and fiscal stewardship.