The right to understand and defend oneself before the state when brought on criminal charges has been recognized in English common law since the 13th century (Melton, Petrila, Poythress & Slobogin, 1997). Trying a person who is not competent is said to offend the dignity of the court, to undermine the credibility of the State, and to deprive the citizen of essential rights.

Conceptions of Competency to Stand Trial
Many authors (Bonnie, 1992; Golding, 1993; Grisso, 1986; Melton, et al, 1997; Roasch, Zapf, Golding, & Skeem, 1999) have emphasized that competency to stand trial (CST) is a function of the defendant's capabilities, the specific demands of his¹ legal situation, and the assets (such as having a supportive family member, or an attorney skilled at working with mentally ill clients) that the defendant has available. In other words, a defendant's competency hinges not only on his mental status, but, to a degree, on the requirements of his defense. A securities fraud case will require more knowledge, memory, and intelligence to understand the proceedings and assist in one's defense than will a trespassing or shoplifting case. For these reasons, CST is sometimes considered an "open-textured" construct, having no clear boundaries.

Bonnie (1992) argued that there are two components of competency to stand trial: ability to assist counsel and decisional competence. Bonnie sometimes refers to the former as foundational competence, or "the minimum conditions for participating in one's own defense." This includes: (a) understanding of the charge and a basic understanding of the criminal justice system, especially the role of the defense counsel, (b) appreciation on one's situation as a defendant, and (c) ability to relate pertinent information to the defense attorney. Decisional competence typically involves competency to waive constitutional rights, such as the right to a trial and to an attorney. Bonnie argues, like others (Winick, 1995), that the level of competency required of a defendant depends on multiple factors, including the defendant's cooperation with the attorney and the protections being waived. Consequently, a defendant who is pleading guilty against legal advice might be required to demonstrate higher levels of sophistication (competence) than a defendant who is not waiving rights and accepts guidance.

Relevant Holdings
In Dusky v. United States (1960) the Court rejected the notion that passing a simple knowledge quiz ("Do you know who your lawyer is?") is sufficient to demonstrate competency to stand trial. Rather, the defendant must be able to understand the charge, the legal proceedings, and be able to assist in his defense. The defendant's knowledge and ability doesn't have to be complete, only "sufficient," and simple ignorance can be readily overcome by tutoring. The temporal focus is on the period of the legal proceedings, as opposed to some time in the past, as for the insanity defense. Lastly, it should be noted that the Dusky criteria assume a passive defendant who merely is capable of "assisting" his attorney. This view is at odds with most recent scholarly opinion and empirical studies of defendants whose competency is questioned.

In U.S. Supreme Court in Godinez v. Moran (1992) held that all criminal competencies, such as competency to plead guilty, or to waive right to an attorney, are to be measured by the same unitary standard. This ruling was criticized by Perlin (1996), a legal scholar and mental health advocate. Previously, courts had seemed to give special status to waiving of constitutional rights, such as the right to remain silent, that are relinquished when a defendant accepts a plea bargain. However, the Court did emphasize that the waiver of legal counsel must be "voluntary, knowing and intelligent;" that the defendant's decision should "be made with his eyes wide open." To the extent these issues are addressed, this tends to raise the competency threshold.

A defendant must be competent at all stages of the legal process, and issues of incompetency can be raised at any time (Drope v. Missouri, 1975). Drope also spells out some types of evidence (e.g., a history of irrational behavior, suicide attempts during the trial, demeanor at trial, prior medical opinion on competency, testimony by defendant's wife) that the court held as potentially meeting the threshold for initiating a formal competency hearing. The original trial court deemed all of the evidence cited above as insufficient.

Although a finding of incompetence ordinarily leads to a suspension of legal proceedings, an incompetent defendant may proceed to trial if necessary to the defense's efforts to prove the insanity defense (Riggins v. Nevada, 1992). Defense lawyers may want to show the jury how the defendant looks and acts when not taking medication, or fear that the emotional flatness sometimes caused by medication be mistaken for lack of emotion or remorse.

Defendants sometimes claim lack of memory for the offense. This may be because of an alcohol or drug-induced blackout, or in Wilson's case, a serious head injury. But it may also be an attempt to avoid responsibility. In Wilson v. United States (1968), the court held that lack of memory for the alleged offense does not automatically constitute incompetence. The Court suggested that a case-by-case analysis should be conducted and gave five criteria to assess the impact of amnesia on the ability to effectively mount a defense.

Texas Statute
Article 46.02 of the TCCP sets out the state's definition of competency to stand trial:
A person is not competent to stand trial if the person does not have:
a) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or

b) a rational as well as factual understanding of the proceedings against the person.

A person is presumed to be competent to stand trial unless shown otherwise by a preponderance of the evidence. Section 2, Paragraph B of Article 46.02 states that any evidence of a defendant's incompetence, from any source, requires the court to conduct a competency hearing apart from the criminal trial. If the hearing produces even slight evidence of incompetence, "more than a scintilla," the court must impanel a jury for formal competency proceedings. The jury must conclude that the preponderance of the evidence supports their decision and render a unanimous decision. However, Section 5 states that after a consultative report is filed with the court, the judge may make a finding based solely on this report unless there is an objection by the district attorney or defense attorney within fifteen days.

If a person is determined by the court to be competent, the criminal proceedings continue. If incompetent, the disposition is determined by whether the charge is a felony or misdemeanor, and whether the defendant is judged likely to attain competency in the foreseeable future. Incompetent defendants charged with a felony (and likely to regain competency) must be committed to a maximum-security unit of the state MHMR or a federal mental hospital for a maximum period of eighteen months. In Harris County, Vernon State Hospital is the usual destination. Defendants sent there receive medication and competency training. The latter involves both lecture and mock trial scenarios.

There is more latitude for incompetent defendants charged with a misdemeanor. Such defendants may be committed to an MHMR facility, to outpatient care, or simply instructed to continue treatment with a private practitioner. For those that are committed to a state facility, Rusk State Hospital is the most frequent choice of Harris County judges.

Regardless of where they are committed, the state hospitals must report to the courts every ninety days the defendant's status, and notify them promptly if the defendant has regained competency. The court must then receive them and continue legal proceedings.

If an incompetent defendant is assessed to be unlikely to attain competency in the foreseeable future (and charges are not dropped), the court is directed to obtain two Medical Certificates and to pursue civil commitment. If charges are dropped, the decision to proceed to commitment is at the court's discretion.

¹I will use the male gender for ease of expression.

² On the other hand, civil incompetence (competency to handle finances or refuse medical treatment) does not equate to criminal incompetence, and a person can hypothetically be civilly incompetent and criminally competent, or vice versa.

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