July-August 2018

How to evaluate a competency report

Ashley D. Davis

Assistant Criminal District Attorney in Lubbock County

Floyd L. Jennings, J.D., Ph.D.

Chief of the Mental Health Division, Harris County Public Defender’s Office

As one of two prosecutors in the Lubbock County Criminal District Attorney’s Office who handles competency or mental health related issues, Ashley Davis (one of this article’s co-authors) has seen a variety of competency evaluations for cases ranging from Class B misdemeanors up to capital murder. Like any offense or expert report, they should be scrutinized for quality and content. The quality of reports can range from a comprehensive and thorough description of an examiner’s interactions with the defendant and an investigation into the defendant’s mental history, to simple reports that discuss only what the defendant told the examiner or information that conflicts with the examiner’s opinion.
    When reviewing a competency report, a prosecutor must first determine whether the report addresses what is required by Texas Code of Criminal Procedure Chapter 46B and then ask if it is written in a way that assists the court in understanding the examiner’s opinion and how he arrived at that opinion. Both authors can say, however, that we see great variance in reports that come across our desks—and, from conversations with courts (and examiners in CE events)—across the state. Being subject to public scrutiny helps:  For example, Harris County has a county competency/sanity unit, conceptualized as a court-related function, staffed by contractual relationship with the local mental health authority—but as a vendor and not as a mental health authority endeavor. This unit has an oversight committee representing both the district and county courts that establishes policy, reviews data, and has created a site (now in beta testing) to allow immediate queries as to the status of reports. In many parts of the state, courts may not be attentive to the training requirements for examiners, and “independent examiners” lacking such training produce reports lacking essential elements. Or, either movants or courts are not aware of the necessity for specific training in conducting competency examinations (not to say that a provider treating a defendant is precluded from such evaluations.1
    Therefore, following are a series of simple tips for prosecutor to identify if a competency evaluation of a defendant meets reasonable quality standards. An evaluation done using these tips would not assess whether the examiner is dead wrong in his opinion but only whether he took on the task and executed it as required by statutes and applicable caselaw.

1. It should include a description of the examiner’s qualifications.
The statutory definitions of qualifications for examiners2 boil down to the following:
    (1) qualification by licensure (either psychologists or psychologists licensed to practice in Texas), and
    (2) board certification in forensic matters (i.e., the American Board of Neurology and Psychiatry for psychiatrists or the American Board of Professional Psychology in Forensic Psychology for psychologists). These two are the only legitimate, nationally recognized professional boards. However, there are several “vanity” boards that sound like they provide a legitimate board certification but, in fact, are not of the caliber of these two in that they lack practice samples and both written and oral examinations.
    (3) training, consisting of:
    • at least 24 hours of specialized forensic training relating to competency or insanity evaluations; and
    • at least eight hours of continuing education relating to forensic evaluations completed in the 12 months preceding the appointment.
    Note that either psychologists or psychiatrists may complete these evaluations, though licensure itself is a necessary (but insufficient by itself) criterion for appointment. But be very suspicious of an examiner who requires more pages to describe his substantial achievements in his professional life than he devotes to the examination of the defendant. The authors can recall seeing reports with 20–30 pages of wonderfully written descriptions of the examiner’s training and various awards but only four pages devoted to the examination. We could do without the preceding 20–30, as it says more about the examiner’s narcissism than the defendant’s mental state! Also ask the examiner if he has documentation for the required training, especially any that are more recent.

2. Be sure the examiner relies upon the proper standard.
The standard for incompetency is stated in Art. 46B.003:
(a) A person is incompetent to stand trial if the person does not have:
    (1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding, or
    (2) a rational as well as factual understanding of the proceedings against the person.
(b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.3
    In regard to evaluation reports, examiners often fail to follow these statutory standards in two ways. First, examiners may fail to address both prongs of the competency standard. In the series of Turner opinions,4 one issue related to competency was simply that four examiners addressed competency and placed virtually all the emphasis on the rational and factual knowledge prong but did not fully address the defendant’s capacity to relate to counsel with a reasonable degree of rational understanding. To be sure, there were other issues, such as whether a retrospective examination could be done, but the point is simply that a defendant’s failure on either prong—lacking a rational and factual knowledge of the proceedings or being unable to relate to counsel—requires a finding of incompetency.
    Second, the statute contains a presumption issue that is relevant to an examiner’s report. Ordinarily, as stated in Art. 46B.003, a defendant is presumed competent. Consequently, the examiner must report on evidence of incompetency rather than evidence of competency. In addition, the standard of evidence for such a finding is a preponderance (although “preponderance” is a legal conclusion, not a clinical one). Thus, the examiner must have more than general knowledge of how much evidence is required to offer an opinion.
    The presumption changes, however, once a defendant has been found incompetent. In Manning v. State,5 if, in a previous case, the defendant was found incompetent and not ever found by a court to be restored to competency, then she is considered to be in a state of “an unvacated adjudication of incompetency.” At this point, the burden changes to require the State to prove competency beyond a reasonable doubt. The holding of this case is based on the precedential value of judicial findings; that is, a defendant is considered to be in whatever condition she was most recently found until a court with jurisdiction rules otherwise. Thus, if in the defendant’s most recent case she was found incompetent and not restored, then in succeeding cases she must be presumed incompetent.
    We will note that a re-evaluation between cases is certainly appropriate, though generally it should only be performed if a reasonable amount of time has passed between evaluations. Because competency can be a very fleeting condition, a few months is reasonable. Re-evaluation could also be reasonable following a significant change in the defendant’s clinical condition.
    So in a re-evaluation following a finding of a defendant’s incompetence, the focus of attention for an examiner is the opposite of an ordinary evaluation. Given that a defendant in a Manning circumstance is presumed incompetent, it makes little logical sense for an examiner to look for evidence of incompetency. Instead, the examiner should focus on as much evidence for competency as can be found, because any credible evidence tending to support incompetency would affirm the initial presumption (i.e., that the defendant remains incompetent).6 In this way, Manning evaluations have a much different focus from a conventional competency appraisal.
    Note an exception to the Manning rule occurs when a judge finds a person incompetent but likely to be restored and sends the person for restoration, and the facility concludes that the person has been restored. A facility’s evaluation and opinion are conducted using a different standard, and if the court affirms the facility’s opinion, that evaluation and opinion establish a rebuttable presumption in favor of the facility’s opinion. This presumption will determine any finding regarding the defendant’s competency unless the opposing party presents contrary evidence that is persuasive under the preponderance of the evidence standard.7
    If this sound confusing, it is, as the competency area is procedurally complex. Nonetheless, there are two evidentiary standards for competency—preponderance and beyond a reasonable doubt—and it’s important that the examiner knows which one applies.

3. Ensure that the report addresses all issues mandated by statute.
While the competency standard is two pronged—whether the defendant has a rational and factual knowledge of the proceedings and is able to relate to counsel with a reasonable degree of rational understanding—Tex. Code Crim. Proc. Arts. 46B.024 and .025 delineate sub-components that must be addressed in any competency report. Those issues are:
(1) the capacity of the defendant during criminal proceedings to:
    (A) rationally understand the charges against him and the potential consequences of the pending criminal proceedings;
    (B) disclose to counsel pertinent facts, events, and states of mind;
    (C) engage in a reasoned choice of legal strategies and options;
    (D) understand the adversarial nature of criminal proceedings;
    (E) exhibit appropriate courtroom behavior; and
    (F) testify;
(2) as supported by current indications and the defendant’s personal history, whether the defendant:
    (A) is a person with mental illness; or
    (B) is a person with an intellectual disability;
(3) whether the identified condition has lasted or is expected to last continuously for at least one year;
(4) the degree of impairment resulting from the mental illness or intellectual disability, if existent, and the specific impact on the defendant’s capacity to engage with counsel in a reasonable and rational manner; and
(5) if the defendant is taking psychoactive or other medication:
    (A) whether the medication is necessary to maintain the defendant’s competency; and
    (B) the effect, if any, of the medication on the defendant’s appearance, demeanor, or ability to participate in the proceedings.
    It is not necessary that the examiner enumerate each item, but there are few examiners who can weave together all the requisite items in a fashion that is lucid as well as fluid. Outside of the small number of examiners who have this ability, it is better that a report includes an enumeration of each of the items.
    Art. 46B.025 lists several other required issues. An expert’s report must:
(1) identify and address specific issues referred to the expert for evaluation;
(2) document that the expert explained to the defendant the purpose of the evaluation, the persons to whom a report on the evaluation is provided, and the limits on rules of confidentiality applying to the relationship between the expert and the defendant;
(3) in specific terms, describe procedures, techniques, and tests used in the examination, the purpose of each procedure, technique, or test, and the conclusions reached; and
(4) state the expert’s clinical observations, findings, and opinions on each specific issue referred to the expert by the court, state the specific criteria supporting the expert’s diagnosis, and state specifically any issues on which the expert could not provide an opinion.
    The expert’s opinion on the defendant’s competency or incompetency may not be based solely on the defendant’s refusal to communicate during the examination.
    If an expert appointed under Article 46B.021 believes the defendant is incompetent to proceed, the expert must state in the report:
(1) the symptoms, exact nature, severity, and expected duration of the deficits resulting from the defendant’s mental illness or intellectual disability, if any, and the impact of the identified condition on the factors listed in Article 46B.024;
(2) an estimate of the period needed to restore the defendant’s competency, including whether the defendant is likely to be restored to competency in the foreseeable future; and
(3) prospective treatment options, if any, appropriate for the defendant.
    An expert’s report may not state the expert’s opinion on the defendant’s sanity at the time of the alleged offense, if the expert believes the defendant is incompetent to proceed.
    It is also important that the examiner clearly identify the sources upon which he has relied in conducting an evaluation. It would be proper, for example, to list the number of pages in medical records, the length of the offense report, any conversations with people having direct knowledge (such as family members or correctional officers), and the like. Be wary of an examiner who makes a long list of things he reviewed but seems to have taken everything the defendant said at face value and has provided no qualifiers.
    One area examiners often give short shrift is discussion of psychoactive medications prescribed to defendants, especially whether the medications, in fact, target the evident symptoms. For example, a common scenario is that a defendant displays loss of contact with realty (psychosis) but has either refused medications or is prescribed only an antidepressant that would not target the illness. If the examiner knows about this, he should say so.
    Further, historically in Texas, competency reports have been sadly limited in terms of the bases of the expert’s opinion. Some years ago, the Vernon State Hospital conducted a survey of competency reports accompanying defendants sent for restoration and discovered that a large percentage were one-page documents, which stated that the defendant was mentally ill and the examiner’s opinion is that the defendant was incompetent—but had no other detailed information (which Chapter 46B now requires). With this historical base, it is even more important that examiners follow the statute as to what should be included in a competency report.

4. Ensure that the examiner includes only relevant material.
Examiners often provide clinical information about the patient that is irrelevant and—even if relevant—written in jargon that might be understood in the clinical world but is largely uninterpretable, if not incomprehensible, to a non-clinical audience. For example, a mental status examination may say that “the defendant is oriented in all spheres, though with tangential or circumstantial thinking, and ideas of reference.” If you read such a sentence in a report, demand that the examiner re-phrase it in less technical terms—for example: “The defendant was able to provide basic information such as his name and date and place of birth, and he was aware of the purposes of the evaluation, where he was being evaluated, the date, and time. However, his speech continually drifted off into areas unrelated, and he appeared to harbor thoughts that acts or behaviors of others applied to him, however bizarre they sounded. He said he knew that the television reporter was referring to him in news broadcasts.” Note that this is a much longer statement, but it also avoids reliance upon technical language and is understandable to non-psychiatrists.
    A competency evaluation should not include any statements a defendant makes about details of the offense. While information gained in the course of a competency evaluation cannot be used in any other criminal proceeding (unless the defense opens the door8), the examiner should nonetheless adhere to firm boundaries in conducting an examination so that he does not assume the role of either defense counsel or the prosecution. For example, an examiner could state that a defendant provided a description of the crime’s events in a logical and sequential manner that was generally consistent with the offense report.
    Further, as noted earlier, the report should not include voluminous details about the examiner’s professional history or accomplishments. It is worth repeating.

5. Examine the report for simplistic conclusions.
While these tips largely address procedural issues, attorneys must always be cautious with regard to an examiner’s conclusions. For example, as stated in Turner, the mere presence of mental illness does not equate to incompetency.9 Turner further held: “Nor does the simple fact that he obstinately refuses to cooperate with his trial counsel. Indeed, even a mentally ill defendant who resists cooperating with his counsel may nevertheless be found competent if the manifestations of his particular mental illness are not shown to be the engine of his obstinacy. However, when a defendant’s mental illness operates in such a way as to prevent him from rationally understanding the proceedings against him or engaging rationally with counsel in the pursuit of his own best interests, he cannot be forced to stand trial, which is consistent with due process considerations. Evidence that raises this possibility necessitates an informal inquiry, and if that inquiry reveals that the possibility is substantial, a formal competency trial is required.”10 
    Similarly, simply because a defendant has an intellectual disability does not mean that she is incompetent. Moreover, the examiner is not required to conduct a formal determination of intellectual disability as defined in the Tex. Health & Safety Code §§592.018 and 593.005 to conclude that a defendant is incompetent to stand trial.
6. Ensure that the report is timely.
Tex. Code Crim. Proc. Art. 46B.026(a) requires that the report be submitted to the court and both parties not later than 31 days after the court ordered the examination. Extensions may be granted for good cause. A county might consider limiting the number of examinations assigned to an examiner who regularly cannot meet the 30-day deadline. At the very least, there is no reason to be bashful about advising the examiners of the necessity to adhere to the statutory deadline. It is generally wise to have a hearing as soon as possible after a report is provided or after the person returns from a facility, and Tex. Code Crim. Proc. Art. 32A.01(c) gives preference to defendants restored to competency over most other matters before the court.11

We have discussed only some of the issues pertaining to the quality of reports—reviewing the examiner’s qualifications, ensuring the evaluation has applied the proper standard, that the contents include all the items enumerated in Arts. 46B.024 and .025, that the report contains only relevant information, that the conclusions are not simplistic, and that the report is timely. But these particular issues are of great importance, and evaluating them will go a long way toward ensuring a competency report does its job well.


1  Tex. Code Crim. Proc. Art. 46B.021.

2  Tex. Code Crim. Proc. Art. 46B.022.

3  This standard is a codification of Dusky v. United States, 362 U.S. 402 (1960).

4  The principal opinion is Turner v. State, 422 S.W.3d 676 (Tex. Crim. App. 2013).

5  730 S.W.2d 744 (Tex. Crim. App. 1987).

6  As an aside, Tex. Code Crim. Proc. Chapter 46B contemplates this alternative, which is why civil commitments by criminal courts—with charges yet pending—are permitted. Tex. Code Crim. Proc. Arts. 46B.102–.103.

7  See Moralez v. State, 450 S.W.3d 553 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).

8  See Tex. Code Crim. Proc. Art. 46B.007.

9  See Battle v. United States, 419 F.3d 1292 (11th Cir. 2005); United States v. Mitchell, 709 F.3d 436 (5th Cir 2013) (“There is no specific threshold or quantum of evidence that requires the district court to order a competency hearing. Instead, the United States Court of Appeals for the Fifth Circuit considers three factors: (1) the existence of a history of irrational behavior, (2) the defendant’s demeanor at trial, and (3) prior medical opinion on competency. Significantly, the presence or absence of mental illness or brain disorder is not dispositive as to competency.”).

10  Turner, 422 S.W.3d at 691.

11 The only proceedings that take precedence over those in which a defendant has been found to have been restored to competency are criminal proceedings in which the alleged victim is younger than 14. Tex. Code Crim. Proc. Art. 32A.01(b).