E. If counsel becomes aware that the client is the subject of a grand jury investigation, counsel should consult with the client to discuss the grand jury process, including the advisability and ramifications of the client testifying. Counsel should examine the facts in the case and determine whether the prosecution has fulfilled its obligation under Texas law to present exculpatory evidence and should make an appropriate record in that regard. Upon return of an indictment, counsel should determine if proper notice of the proceedings was provided and should obtain the record of the proceeding to determine if procedural irregularities or errors occurred that might warrant a challenge to the proceedings such as a writ of habeas corpus or a motion to quash the indictment.
The client must be able to understand, assist counsel, and participate in the proceedings against the client in order to stand trial or enter a plea. Counsel is often in the best position to discern whether the client may not be competent to stand trial.
Counsel should be familiar with Code of Criminal Procedure Article 46B, which governs proceedings surrounding incompetence to stand trial.
During the initial interview with the client, counsel should note signs that a mentally ill or developmentally disabled client may not be competent to stand trial. Signs include, but are not limited to: inability to communicate with counsel; delusions; psychosis; intellectual inability to comprehend the proceedings; and inability to remember or articulate the circumstances of arrest.
Counsel should request mental health records from the client’s mental health provider and history of psychiatric treatment in the jail, if any.
If counsel believes the client may be incompetent to stand trial, counsel should file a motion to have the client examined for competency. The motion to have a client examined for competency may be supported by affidavits setting out the facts on which the suggestion of incompetence is made.
If counsel has determined that the client may be incompetent to stand trial, and it appears that transporting the client to and from court for routine proceedings at which the client’s presence is not needed may cause disruption or undue stress for the client, counsel should consider requesting that the client not be transported to court unless or until the client’s presence is necessary.
If the court finds that there is some evidence that would support a finding of incompetence, the judge is required to stay all other proceedings in the case and order a competency evaluation. Counsel should facilitate setting up the competency evaluation as soon as possible. The sooner the evaluation is completed, the sooner the client can receive the mental health treatment that the client may need. Courts often have a list of professionals who have been approved to provide these evaluations.
Counsel should investigate competency restoration treatment options including outpatient or community competency restoration.