Competency restoration legislation moving, funding for new forensic beds in jeopardy

by Scott Henson of Grits For Breakfast

I've got good news and bad news for sheriffs, jail administrators and mental health professionals who are worried about the growing backglog of mentally ill and retarded inmates in county jails declared incompetent to stand trial.

When the 80th Legislature started, there were two, equally important initatives the Texas Lege needed to undertake to fix these chronic problems: Rationalizing outdated laws related to competency restoration and providing new funding for additional forensic beds at state mental hospitals.

Last year the Legislative Budget ponied up $13.4 million for new forensic beds, about $28 million shy of what the Department of State Health Services said would be required to eliminate the backlog. I'd hoped they'd return to that commitment this year and increase forensic bed funding further, but neither the House nor Senate budget includes ANY money for new forensic beds, instead giving crisis care money to community MHMR centers. (That would be fine, except only one out of 31 statewide actually provides competency restoration services.)

For reasons no one can concretely determine, the number of forensic patients in Texas has doubled since 2001, and they typically require more than twice as long to restore competency compared to civil and other types of commitments.

The legislative iniative appears to be on track. Sen. Duncan's SB 867 (discussed here), a much needed bill that would revamp rules for competency restoration for low-level criminal offenders, passed the Texas House on second reading today and appears ready to sail toward the Governor's desk where I'd expect it to receive his signature. Without Duncan's legislation, misdemeanants right now can wait longer to be declared competent to stand trial than their maximum sentence would be if they're convicted! It includes several mechanical fixes that should streamline the process and divert some low-level offenders to community-based treatment.

I'm much less optimistic about funding in the state budget for new forensic hospital beds. As mentioned here, both the House and Senate approved new funds for mental health "crisis" services, but not for the additional forensic beds that would assist local sheriffs with the scores of mentally ill and retarded inmates waiting in Texas jails for space in state hospitals. The conference committee would have to go "outside the bounds" of either chamber's budget to find money for new forensic beds.

Looming over this process is a lawsuit filed by Advocacy Inc. that potentially could force the state to immediately accept competency restoration cases from the counties, so if state budget writers don't pony up for additional beds, there's a decent chance that Beth Mitchell and the other lawyers at Advocacy will have the goods to force the state's hand in court once session is done.

In that sense, new forensic state hospital beds are one of these "pay me now or pay me later" kind of expenditures. Nobody disagrees the law requires the state to accept a greater obligation for defendants who are declared incompetent (not to mention the case will be heard in a Travis County court, which means it will be heard by Democratic judges who will be harder for the Governor or the Attorney General to influence). The state is likely to lose this case if it ever goes to court, so budget writers would be wise to revisit this issue and pony up for additional state hospital beds this biennium.

UPDATE: I should have mentioned that Aaron Peña was the House sponsor of this bill and he has a brief blog post about it here. Good job, Chairman.

See prior, related Grits coverage