CS/HB 233 CRIMINAL COMPETENCY DETERMINATION

Rep Tara L. Lujan

Actions: [3] not prntd-HRC [4] w/drn-prntd-ref- HHHC/HJC-HHHC [8] DNP-CS/w/o rec-HJC

Scheduled: Not Scheduled

 House Bill 233 (HB 233) relates to criminal procedure and provides a procedure for the determination of competency. It also establishes competency restoration programs, requires reporting, and requires the state to pay for mental examinations.  

 First, House Bill 233 (HB 233) repeals the current procedure for the determination of competency and replaces it with a new procedure. 

The new procedure requires that when the defense, prosecutor, or the judge have a good-faith basis concerning the defendant’s competency, one of the following occurs: (1) the case is suspended until the issue of competency is resolved, (2) prior to, or instead of a competency evaluation, and with the parties’ agreement or at the court’s discretion, the defendant is assessed for a diversion to treatment program, or (3) prior to, or instead of a competency evaluation, and if all parties agree, the defendant is assessed for a civil commitment or assisted outpatient treatment program. A “diversion to treatment program” means diversion from the legal system to mental health or substance abuse treatment in the community and with additional supportive structures, such as case management. 

For misdemeanor cases, a defendant may be ordered to participate in a diversion to treatment program for up to six months.  

For nonviolent felony cases, the defendant may be ordered to participate in an available diversion to treatment program for up to 18 months, and the charges are dismissed upon completion. In this situation, the defendant is not required to undergo a competency evaluation. 
If a defendant refuses or is unable to comply with a diversion to treatment program, the judge may dismiss the case, or, with the parties’ agreement, determine if the defendant is eligible for civil commitment or assisted outpatient treatment. 

Second, HB 233 amends what is included in a competency evaluation. Such evaluation must include a provisional diagnosis that links symptom interference with competency capacities, and must also include treatment recommendations.  The bill requires the court have a hearing on the same day regarding both competency and a defendant’s dangerousness.  

Third, the bill repeals the current procedure for resolving a case of a defendant determined to be incompetent to stand trial.  The new procedure requires a court to have a hearing to determine the defendant’s competency and dangerousness, and is able to dismiss the case without prejudice (meaning it can be filed again) or pause the case and refer the defendant to a competency restoration program.  However, the program must be available in the jurisdiction and must be available within a reasonable time period.  Such programs include: (1) an outpatient competency restoration program (in-person or on-line) that is authorized by the Department of Health (DOH) or the Health Care Authority Department (HCAD) or (2) an inpatient program authorized by the DOH or HCAD).  

An incompetent defendant who has been found to be dangerous may be ordered to a competency program. If so ordered, the defendant must be detained by the Department of Health in a secure facility until treatment is complete. The bill includes the current procedure that allows the DOH to refuse admission of a defendant if the DOH lacks the ability to meet the medical needs of the defendant. 

Fourth, the bill expands the list of who may refer a person for a civil commitment. The bill provides that if a criminal case has been dismissed, the bill allows the judge, city/county/district attorney or anyone else authorized by law to refer the person for an assessment for a civil commitment.  Currently, only the district attorney may make this referral. If a treatment provider finds that the defendant satisfies the criteria for involuntary commitment, the court, the DOH, the state, the family or the health care provider may refer the defendant to the district attorney for an assessment for a civil commitment.  Currently, only the district court may refer the defendant to the district attorney for such an assessment. 

Fifth, the bill provides timelines for programs to provide assessments, treatment plans, and reports to the parties. 

Sixth, the bill provides definitions for use in the determining competency, including “competency restoration program” (which may be accompanied by medication, psychotherapy or addiction services) and “reasonable time” (meaning within 30 days of referral). 

Lastly, the bill changes the financial responsibility of paying for the costs of a competency exam from the court to the state. 
 

 Currently, the procedure for determining competency is when it appears that there is a question as to the defendant’s competency, the case is suspended until the issue is determined. If the question is raised in a court other than district or metro court, the case is transferred to district court. If a defendant is determined to be incompetent in metro court, the case is transferred to district court. 

Currently, when a court determines that a criminal defendant is not competent to stand trial and the court does not find the defendant dangerous, the court may dismiss the case and recommend that the district attorney initiate proceedings under the Mental Health and Developmental Disabilities Code. An incompetent defendant charged with a felony and determined to be dangerous can be committed to treatment to competency. 
 

 The HHHSCcs/ HB 233 makes the following changes to the original bill:
•	Clarifies that a case is to be “suspended” and not “stayed” when there is a concern regarding a defendant’s competency
•	Removes the ability for the court, at its own discretion, order a defendant to a treatment program. Instead, the parties must agree.
•	Removes ability for parties to agree to refer a defendant for a civil commitment. 
•	Adds that in misdemeanor cases, the parties must agree for a defendant to be ordered to a diversion to treatment program and provides that misdemeanor cases in metro court remain in metro court regardless of whether the defendant is diverted to a program. 
•	Removes the ability for the court to order, on its own, that a defendant in a nonviolent felony case to referred for participation in a treatment program. Instead, the parties must agree and have the approval of the court. 
•	Clarifies that charges will be dismissed for all defendants who complete a diversion program, not just for those with a nonviolent felony.  Provides that the charges will be dismissed after the time period for completion of the diversion program has elapsed or upon the defendant’s acceptance into assisted outpatient treatment. In these situations, the defendant is not required to undergo a competency evaluation while participating in a diversion to treatment program. 
•	Removes the provision in the original bill regarding a defendant who refuses or is unable to comply with court-ordered treatment, that allowed the court to dismiss the charges or refer for a civil commitment or assisted outpatient treatment. 
•	Removes the provision from the original bill that allowed a court to dismiss a criminal case if the defendant is incompetent and dangerous.  Instead, it adds that if a defendant in incompetent and NOT dangerous, the court must dismiss the case without prejudice. If the defendant is incompetent AND dangerous, the court must order treatment in the least restrictive setting with the goal or restoration to competency. 
•	Replaces references to “outpatient competency restoration program” with “community competency restoration program”, which may be outpatient, residential, in person or electronic. 
 

 HB 233 is identical to SB 16