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Jurist in Residence Letter
From Senior District Judge John J. Specia, Jr. (Ret.)
Competency Restoration
October 2020
What is Competency Restoration?
In Texas, competency restoration is defined by statute as “the treatment or education process for restoring the ability of a person found Incompetent to Stand Trial (IST) to consult with their attorney with a reasonable degree of rational understanding, including a rational and factual understanding of the court proceedings and charges against the person.” Tex. Code Crim. Proc. art. 46B.001(3).

How do Judges Know if a Competency Report is Well Done?
Judges should ensure that the experts appointed to conduct competency examinations meet the minimum qualifications found in art. 46B.022, and that the expert’s report includes the information in art. 46B.025. The court does not have to accept a report that does not meet the statutory requirements and/or is of poor quality but instead can enforce those requirements (i.e., by ordering amendment of the report). It is also important to note that the determination of competency or incompetency is the role of the court, a role that should not be abdicated to the expert.

What are the Alternatives to State Hospitalization in Texas?
The Texas Health and Human Services Commission (HHSC) contracts with entities to provide competency restoration services in settings other than hospital or state supported living center settings. Contracted services include outpatient competency restoration (OCR), jail-based competency restoration (JBCR), and competency restoration in private psychiatric hospitals or other mental health facilities. The focus in this letter is on OCR and JBCR services.

Outpatient Competency Restoration
OCR programs provide community-based competency restoration services to individuals found IST. The purpose of the programs is to provide competency restoration, mental health treatment, and promote community reintegration. OCR programs were established by the 80th Legislature in 2007 and expanded in 2011 and 2018. These programs have served over 1,723 individuals since inception.[1] The average length of stay for an individual receiving OCR services is 176 days.

OCR Services
OCR programs provide many services to individuals, including help with housing, medication continuity, and weekly one-on-one connection with an individual to provide support. OCR programs provide the following services:
  • Peer supports - Peer providers share their experiences related to recovery and act as a model of hope and resilience to others.
  • Curriculum-based competency restoration education - Each OCR program submits a curriculum that is reviewed and approved by the Health and Human Services Commission.
  • Access to housing resources - Provide supported housing, including rental subsides, for individuals in the OCR program who lack adequate housing.
  • Psychosocial rehabilitative services - Education about mental illness and training on how to decrease and manage symptoms.
  • Psychiatric and medical medications - Access to medications to support mental health and substance use recovery.
  • Cognitive processing therapy - Evidence-based treatment found effective for treating individuals with post-traumatic stress disorder and related conditions.
  • Substance use inpatient or outpatient treatment – Coordination with outreach, screening, assessment, and referral centers (OSAR centers) to assist individuals with substance use related needs.

There are thirteen OCR programs in Texas funded by $4.7 million of general revenue funds each fiscal year, and each of these programs is different depending on the needs and demographics of the county in which it is located. OCR programs are operated by twelve local mental and behavioral health authorities (LMHAs and LBHAs) and one county:
  • Andrews Center (Henderson, Rains, Smith, Van Zandt, Wood)
  • Center for Health Care Services (Bexar)
  • Central Counties Services (funded by the Mental Health Grant for Justice Involved Individuals) (Bell, Coryell, Hamilton, Lampasas, Milam)
  • Community Healthcore (Bowie, Cass, Gregg, Harrison, Marion, Panola, Red River, Rusk, Upshur)
  • Emergence Health Network (El Paso)
  • Harris County (Harris)
  • Heart of Texas Region MHMR (Bosque, Falls, Freestone, Hill, Limestone, McLennan)
  • Integral Care (Travis)
  • MHMR Tarrant (Tarrant)
  • North Texas Behavioral Health Authority (Dallas, Ellis, Hunt, Kaufman, Navarro, Rockwall)
  • Nueces Center for Mental Health and Intellectual Disabilities (Nueces)
  • StarCare Specialty Health System (Cochran, Crosby, Hockley, Lubbock, Lynn)
  • Tri-County Behavioral Healthcare (Liberty, Montgomery, Walker)

OCR Data
In fiscal year 2019, OCR providers served 310 individuals, 50.09% for felony offenses and 49.91% for misdemeanor offenses. Of those 310 individuals:
  • 42% Restored
  • 23% Charges Dismissed
  • 15% Sent to the State Hospital
  • 8% Absconded
  • 5% Deemed Not Restorable
  • 4% Reoffended
  • 3% Not Restored

Jail-Based Competency Restoration
JBCR programs provide competency restoration services in a jail setting to individuals who are determined IST by the court. Participants are screened for eligibility for OCR services and must be determined ineligible for OCR prior to being admitted into a JBCR program. Eligibility determination also includes assessments and testing of the participants’ psychological functioning. JBCR allows for individuals to be treated locally.

JBCR Services
JBCR programs provide the following services:
  • Multidisciplinary treatment team - Treatment teams consisting of at least one psychiatrist and a Qualified Mental Health Professional to provide JBCR services.
  • Cognitive behavioral therapy - Evidence-based treatment focused on changing cognitive distortions and behaviors and improving emotion regulation.
  • Curriculum-based competency restoration education - Each JBCR participant must be educated in multiple learning formats, which may include discussion, written text, video, and experimental methods such as role-playing or mock trial. Currently, there is not a standardized JBCR curriculum.
  • Motivational Interviewing/Treatment Planning - Motivational interviewing is an evidence-based counseling approach that helps individuals identify strengths in overcoming barriers to achieving a factual and rational understanding of legal proceedings. Treatment planning is a process used to engage an individual and address goals, treatment needs, and intervention strategies.
  • Coordination of general healthcare – Coordinate with other providers to address medical needs.

The Mental Health Grant Program for Justice-Involved Individuals established by Senate Bill 292, 85th Texas Legislature, Regular Session, 2017 awarded $1.9 million to four JBCR programs:
  • MHMR Tarrant County (Tarrant)
  • North Texas Behavioral Health Authority (Dallas, Ellis, Hunt, Kaufman, Navarro, Rockwall)
  • PermiaCare (Brewster, Culberson, Ector, Hudspeth, Jeff Davis, Midland, Pecos, Presidio)
  • StarCare Specialty Health System (Cochran, Crosby, Hockley, Lubbock, Lynn)

Additionally, the Nueces Center for Mental Health and Intellectual Disabilities operates a non HHSC-funded JBCR program.

In fiscal year 2019, including the Nueces Center for Mental Health and Intellectual Disabilities, JBCR providers served 346 individuals and restored 115 individuals. The breakdown in criminal charges in fiscal year 2019 was 49% felony offenses and 51% misdemeanor offenses.
Competency restoration and other issues critical to adult and juvenile mental health and IDD law will be discussed at this year’s annual Summit, scheduled for November 9th and 10th, 2020. For more information, or to register for the Summit, click here.

John J. Specia, Jr. (Ret.)
Jurist in Residence
[1] All statistics cited in this letter are taken from: LaQuinta Swan, Tex. Health & Hum. Serv. Comm’n, Lucrece Pierre-Carr, Tex. Health & Hum. Serv. Comm’n, Texas Competency Restoration: Outpatient and Jail-Based, Presentation at the 2nd Annual Judicial Summit on Mental Health (Nov. 18, 2019).
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