1 STATE OF OKLAHOMA
1
2 1st Session of the 59th Legislature (2023)
2
3 SENATE BILL 771 By: Howard
3
4
4
5
5
6 AS INTRODUCED
6
7 An Act relating to determination of competence;
7 amending 22 O.S. 2021, Sections 1175.1, 1175.3,
8 1175.4, and 1175.6b, which relate to definitions and
8 procedures for determining competency; modifying
9 definitions; providing for standing for Office of
9 Public Guardian to participate in certain
10 proceedings; establishing certain exception for
10 reports to be considered by the court; updating
11 statutory reference; and providing an effective date.
11
12
12
13
13
14 BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
14
15 SECTION 1. AMENDATORY 22 O.S. 2021, Section 1175.1, is
15
16 amended to read as follows:
16
17 Section 1175.1. As used in Sections 1175.1 through 1176 of this
17
18 title:
18
19 1. “Competent” or “competency” means the present ability of a
19
20 person arrested for or charged with a crime to understand the nature
20
21 of the charges and proceedings brought against him or her and to
21
22 effectively and rationally assist in his or her defense;
22
23 2. “Criminal proceeding” means every stage of a criminal
23
24 prosecution after arrest and before judgment, including, but not
24
Req. No. 1521 Page 1
 1 limited to, interrogation, lineup, preliminary hearing, motion
1
2 dockets, discovery, pretrial hearings and trial;
2
3 3. “Dangerous” means a person who is a person requiring
3
4 treatment as defined in Section 1-103 of Title 43A of the Oklahoma
4
5 Statutes;
5
6 4. “Incompetent” or “incompetency” means the present inability
6
7 of a person arrested for or charged with a crime to understand the
7
8 nature of the charges and proceedings brought against him or her and
8
9 to effectively and rationally assist in his or her defense;
9
10 3. “Dangerous” means a person who is a person requiring
10
11 treatment as defined in Section 1-103 of Title 43A of the Oklahoma
11
12 Statutes;
12
13 4. “Criminal proceeding” means every stage of a criminal
13
14 prosecution after arrest and before judgment, including, but not
14
15 limited to, interrogation, lineup, preliminary hearing, motion
15
16 dockets, discovery, pretrial hearings and trial;
16
17 5. “Public guardian” means the Office of Public Guardian as
17
18 established under the Oklahoma Public Guardianship Act in Section 6-
18
19 101 et seq. of Title 30 of the Oklahoma Statutes;
19
20 6. “Qualified forensic examiner” means any:
20
21 a. psychiatrist with forensic training and experience,
21
22 b. psychologist with forensic training and experience, or
22
23 c. a licensed mental health professional whose forensic
23
24 training and experience enable him or her to form
24
Req. No. 1521 Page 2
 1 expert opinions regarding mental illness, competency
1
2 and dangerousness and who has been approved to render
2
3 such opinions by the court; provided, however, a
3
4 licensed mental health professional shall not be
4
5 qualified to issue expert opinions as to competency or
5
6 dangerousness in cases in which a person is alleged to
6
7 be incompetent due to intellectual disability; and
7
8 6. 7. “Reasonable period of time” means a period not to exceed
8
9 the lesser of:
9
10 a. the maximum sentence specified for the most serious
10
11 offense with which the defendant is charged, or
11
12 b. a maximum period of two (2) years; and
12
13 7. “Public guardian” means the Office of Public Guardian as
13
14 established under the Oklahoma Public Guardianship Act in Section 6-
14
15 101 et seq. of Title 30 of the Oklahoma Statutes.
15
16 SECTION 2. AMENDATORY 22 O.S. 2021, Section 1175.3, is
16
17 amended to read as follows:
17
18 Section 1175.3. A. Upon filing of an application for
18
19 determination of competency, the court shall set a hearing date,
19
20 which shall be as soon as practicable, but at least one (1) day
20
21 after service of notice as provided by Section 1175.2 of this title.
21
22 B. The court shall hold a hearing on the date provided. At the
22
23 hearing, the court shall examine the application for determination
23
24 of competency to determine if it alleges facts sufficient to raise a
24
Req. No. 1521 Page 3
 1 doubt as to the competency of the person. Any additional evidence
1
2 tending to create a doubt as to the competency of the person may be
2
3 presented at this hearing.
3
4 C. If the court finds there is no doubt as to the competency of
4
5 the person, it shall order the criminal proceedings to resume.
5
6 D. 1. a. If the court finds there is a doubt as to the
6
7 competency of the person, it shall order the person to
7
8 be examined by the Department of Mental Health and
8
9 Substance Abuse Services or by a qualified forensic
9
10 examiner designated by the Department to perform
10
11 competency examinations.
11
12 b. In addition, the Developmental Disabilities Services
12
13 Division and the Office of Public Guardian of the
13
14 Department of Human Services shall receive written
14
15 notice from the district attorney who filed the
15
16 criminal petition, and be authorized by order of the
16
17 court to have a psychologist or other appropriate
17
18 clinician participate with professionals assigned by
18
19 any other public or private agency in any competency
19
20 evaluation wherein where developmental or intellectual
20
21 disability may be involved. The psychologist or
21
22 clinician employed, by contract or otherwise, by the
22
23 Department of Human Services may issue a separate
23
24 opinion and recommendation to the court. In such
24
Req. No. 1521 Page 4
 1 cases where intellectual disability may be involved,
1
2 the Office of Public Guardian shall have standing to
2
3 participate in any stage of the proceedings as deemed
3
4 necessary by the Office.
4
5 2. The person shall be examined by a qualified forensic
5
6 examiner on an outpatient basis prior to referral for any necessary
6
7 inpatient evaluation, as ordered by the court. The outpatient
7
8 examination may be conducted in the community, the jail or detention
8
9 facility where the person is held.
9
10 3. If the court determines that the person whose competency is
10
11 in question may be dangerous as defined in Section 1175.1 of this
11
12 title, it shall order the person retained in a secure facility until
12
13 the completion of the competency hearing provided in Section 1175.4
13
14 of this title. If the court determines the person may be dangerous
14
15 as defined in Section 1175.1 of this title because the individual is
15
16 a person requiring treatment as defined in Section 1-103 of Title
16
17 43A of the Oklahoma Statutes, it may commit the person to the
17
18 custody of the Department of Mental Health and Substance Abuse
18
19 Services or any other state agency or private facility for the
19
20 examination required by this subsection. The person shall be
20
21 required to undergo examination for a period of time sufficient for
21
22 the qualified forensic examiner(s) examiner or examiners to reach a
22
23 conclusion as to competency, and the court shall impose a reasonable
23
24 time limitation for such period of examination.
24
Req. No. 1521 Page 5
 1 E. The qualified forensic examiner(s) examiner or examiners
1
2 shall receive instructions that they shall examine the patient to
2
3 determine:
3
4 1. If the person is able to appreciate the nature of the
4
5 charges made against such person;
5
6 2. If the person is able to consult with the lawyer and
6
7 rationally assist in the preparation of the defense of such person;
7
8 3. If the person is unable to appreciate the nature of the
8
9 charges or to consult and rationally assist in the preparation of
9
10 the defense, whether the person can attain competency within a
10
11 reasonable period of time as defined in Section 1175.1 of this title
11
12 if provided with a course of treatment, therapy or training;
12
13 4. If the person is a person requiring treatment as defined by
13
14 Section 1-103 of Title 43A of the Oklahoma Statutes;
14
15 5. If the person is incompetent because the person is
15
16 intellectually disabled as defined in Section 1408 of Title 10 of
16
17 the Oklahoma Statutes;
17
18 6. If the answers to questions requirements of paragraphs 4 and
18
19 5 of this subsection are no not established, why the reasoning for
19
20 which the defendant is otherwise incompetent; and
20
21 7. If the person were released, whether such person would
21
22 presently be dangerous as defined in Section 1175.1 of this title.
22
23 F. Upon completion of the competency evaluation, the Department
23
24 of Mental Health and Substance Abuse Services or qualified forensic
24
Req. No. 1521 Page 6
 1 examiner designated by the Department to perform competency
1
2 examinations shall notify the court of its findings. If the person
2
3 is in the custody of the Department of Mental Health and Substance
3
4 Abuse Services, the person shall be returned to the court in the
4
5 customary manner within five (5) business days. If the person is
5
6 not returned within that time, the county in which the proceedings
6
7 are to be held shall pay the costs of maintaining the person at the
7
8 institution or facility for the period of time the person remains at
8
9 the institution or facility in excess of the five-day period.
9
10 SECTION 3. AMENDATORY 22 O.S. 2021, Section 1175.4, is
10
11 amended to read as follows:
11
12 Section 1175.4. A. A hearing to determine the competency of
12
13 the person whose competency is in question shall be held within
13
14 thirty (30) days after the qualified forensic examiner(s) examiner
14
15 or examiners have made the determination required in Section 1175.3
15
16 of this title. In such cases where intellectual disability may be
16
17 involved, the Office of Public Guardian shall have standing to
17
18 participate in any stage of the proceedings as deemed necessary by
18
19 the Office.
19
20 B. The court, at the hearing, shall determine by a
20
21 preponderance of the evidence if the person is incompetent. Such
21
22 determination shall include consideration of all reports prepared by
22
23 the qualified forensic examiner(s) examiner or examiners; provided,
23
24 however, in any case where intellectual disability may be involved,
24
Req. No. 1521 Page 7
 1 the court shall be limited to the diagnoses, opinions, and
1
2 recommendations of examiners set forth in subparagraph b of
2
3 paragraph 1 of subsection D of Section 1175.3 of this title. The
3
4 person shall be presumed to be competent for the purposes of the
4
5 allocation of the burden of proof and burden of going forward with
5
6 the evidence. If the court deems it necessary, or if the person
6
7 alleged to be a person requiring treatment, or any relative, friend,
7
8 or any person with whom he may reside, or at whose house the person
8
9 may be, shall so demand, the court shall schedule the hearing on the
9
10 application as a jury trial to be held within seventy-two (72) hours
10
11 of the request, excluding weekends and legal holidays, or within as
11
12 much additional time as is requested by the attorney of the person
12
13 whose competency is in question, upon good cause shown. The jury
13
14 shall be composed of six (6) persons having the qualifications
14
15 required of jurors in courts of record, summoned to determine the
15
16 questions of the person’s competency and need for treatment.
16
17 Whenever a jury is required, the court shall proceed to the
17
18 selection of such jury in the manner as provided by law and such
18
19 jury shall determine the questions of the competency and need for
19
20 treatment of the person whose competency is in question. The jurors
20
21 shall receive fees for attendance and mileage as are allowed by law.
21
22 C. The person whose competency is in question shall have the
22
23 right to be present at the hearing on the petition unless it is made
23
24 to appear to the court that the presence of the person makes it
24
Req. No. 1521 Page 8
 1 impossible to conduct the hearing in a reasonable manner. The court
1
2 may not decide in advance of the hearing, solely on the basis of the
2
3 certificate of the examining doctor or doctors, that the person
3
4 whose competency is in question should not be allowed to appear. It
4
5 shall be made to appear to the court based on clear and convincing
5
6 evidence that alternatives to exclusion were attempted before the
6
7 court renders the person’s removal for that purpose or the person’s
7
8 appearance at such hearing improper and unsafe.
8
9 D. All witnesses shall be subject to cross-examination in the
9
10 same manner as is provided by law. If so stipulated by counsel for
10
11 a person whose competency is in question, the district attorney and
11
12 the court, testimony may be given by telephone or other electronic
12
13 transmitting device approved by the court. No statement, admission
13
14 or confession made by the person whose competency is in question
14
15 obtained during the examination for competency may be used for any
15
16 purpose except for proceedings under this act Section 1175.1 et seq.
16
17 of this title. No such statement, admission or confession may be
17
18 used against such person in any criminal action whether pending at
18
19 the time the hearing is held or filed against such person at any
19
20 later time, directly, indirectly or in any manner or form.
20
21 E. If the question of competency is submitted to a jury, the
21
22 court shall instruct the jury as to the law regarding competency,
22
23 and the findings they are to make. If the trial of the question is
23
24 to the court, the court shall make the required findings.
24
Req. No. 1521 Page 9
 1 SECTION 4. AMENDATORY 22 O.S. 2021, Section 1175.6b, is
1
2 amended to read as follows:
2
3 Section 1175.6b. A. If the person is found to be incompetent
3
4 primarily because the person is intellectually disabled as defined
4
5 in Section 1408 of Title 10 of the Oklahoma Statutes, and is also
5
6 found by the court to be dangerous as defined by Section 1175.1 of
6
7 this title, the court shall suspend the criminal proceedings, and
7
8 shall place the person into the custody of the Office of Public
8
9 Guardian. The Office of Public Guardian shall act with all powers
9
10 set forth in the Oklahoma Public Guardianship Act, and:
10
11 1. The Office of Public Guardian shall place any person placed
11
12 in its custody under this title in a facility or residential
12
13 setting, private or public, willing to accept the individual and
13
14 that has a level of supervision and security that is appropriate to
14
15 the needs of the person;
15
16 2. Such placements shall be within the sole discretion of the
16
17 Office of Public Guardian;
17
18 3. All such placements made by the Office of Public Guardian
18
19 shall be made within six (6) months of the date of the order
19
20 awarding custody to the Office