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SENATE FLOOR VERSION
February 28, 2023
SENATE BILL NO. 552 By: Haste of the Senate
and
Worthen of the House
An Act relating to determination of competence ;
amending 22 O.S. 2021, Sections 1175.1, 1175.3,
1175.6, 1175.6a, 1175.6b, and 1175.8, which relate to
procedures for determinations of competenc y;
modifying definition s; requiring criminal proceedings
to be resumed within certain time period upon
determination of competency; establishing
requirements for certain treatment; clarifying
statute of limitations for certain charges; updating
statutory language; and providing an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 22 O.S. 2021, Section 1175.1, is
amended to read as follows:
Section 1175.1. As used in Sections 1175.1 thr ough 1176 of this
title:
1. “Competent” or “competency” means the present ability of a
person arrested for or charged with a crime to unders tand the nature
of the charges and proce edings brought against him or her and to
effectively and rationally assist in his or her defense;
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2. “Criminal proceeding” means every stage of a criminal
prosecution after arrest and before judgment, including, but not
limited to, interrogation, lineup, preliminary hearing, motion
dockets, discovery, pretrial hearings and trial ;
3. “Dangerous” means a person who is a person requiring
treatment as defined in Section 1 -103 of Title 43A of the Oklahoma
Statutes;
4. “Incompetent” or “incompetency” means the present inability
of a person arrested for or charged with a crime to unde rstand the
nature of the charges and proceedings brought against him or her and
to effectively and rationally assist in his or her defense;
3. “Dangerous” means a person who is a p erson requiring
treatment as defined in Section 1 -103 of Title 43A of the O klahoma
Statutes;
4. “Criminal proceeding” means every stage of a criminal
prosecution after arrest and before judgment, including, but not
limited to, interrogation, lineup, preli minary hearing, motion
dockets, discovery, pretrial hearings and trial;
5. “Public guardian” means the Office of Public Guardian as
established under the Oklahoma Public Guardianship Act in Section 6 -
101 et seq. of Title 30 of the Oklahoma Statutes;
6. “Qualified forensic examiner” means any:
a. psychiatrist with forensic train ing and experience,
b. psychologist with forensic training and experience, or
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c. a licensed mental health professional whose forensic
training and experience enable him or her to fo rm
expert opinions regarding mental illness, competenc y
and dangerousness and who has been approved to render
such opinions by the court; provided, however, a
licensed mental health professional shall not be
qualified to issue expert opinions as to competency or
dangerousness in cases in which a person is alleged to
be incompetent due to intellectual di sability; and
6. 7. “Reasonable period of time ” means a period that starts on
the first day of active treatment not to exceed the lesser of:
a. the maximum sentence specified for the most serious a
misdemeanor offense, with which the defendant is
charged, or no longer than six (6) months,
b. a maximum period of two (2) years ; and
7. “Public guardian” means the Office of Public Guardian as
established under the Oklahoma Public Guardianship Act in Section 6 -
101 et seq. of Title 3 0 of the Oklahoma Statutes
for a felony offense, no longer than one (1) year, or
c. the maximum length of the sentence if such sentence is
less than the time period in subparagraph a or b of
this paragraph.
SECTION 2. AMENDATORY 22 O.S. 2021, Section 1 175.3, is
amended to read as follows:
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Section 1175.3. A. Upon filing of an application f or
determination of competency, t he court shall set a hearing date,
which shall be as soon as practicable, but at leas t one (1) day
after service of notice as provide d by Section 1175.2 of this title.
B. The court shall hold a hearing on the date provided . At the
hearing, the court shal l examine the application for determinat ion
of competency to determine if it alleges facts sufficient to raise a
doubt as to the comp etency of the person. Any additional evidence
tending to create a doubt as to the compete ncy of the person may be
presented at this hearing.
C. If the court find s there is no doubt as to the competency of
the person, it shall order the criminal proceedin gs to immediately
resume by setting a competency hearing within thirty (30) business
days.
D. 1. a. If the court finds ther e is a doubt as to the
competency of the person, it shall order the person to
be examined by the Department of Mental Health and
Substance Abuse Services or by a qualified forensic
examiner designated by the Department to pe rform
competency examinations.
b. In addition, the Developmental Disabil ities Services
Division of the Department of Human Services shall
receive written notice from the district attorney who
filed the criminal petition, and be authorized by
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order of the court to have a psychologist or o ther
appropriate clinician participate w ith professionals
assigned by any other public or private agency in any
competency evaluation wherein developmental or
intellectual disability may be involved. The
psychologist or clinician employed, by contract or
otherwise, by the Department of Human Se rvices may
issue a separate opinion and recommendation to the
court.
2. The person shall be e xamined by a qualified foren sic
examiner on an outpatient basis prior to referral for any necessary
inpatient evaluation, as ordered by the court. The outpatient
examination may be conducted in the community, the jail or detention
facility where the perso n is held.
3. If the court determines that the person whose competency is
in question may be dangerous as defined in Sect ion 1175.1 of this
title, it shall order the person retained in a secure facility until
the completion of the competency hearing provi ded in Section 1175.4
of this title. If the court determines the person may be dangerous
as defined in Section 1175.1 of this title because the individual is
a person requiring treatment as defined in Section 1 -103 of Title
43A of the Oklahoma Statutes, i t may commit the person to t he
custody of the Department of Mental Health and Substance Ab use
Services or any other state agency or private facility for the
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examination required by this subsection. The person shall be
required to undergo examination for a period of time sufficient f or
the qualified forensic examiner(s) examiner or examiners to reach a
conclusion as to compet ency, and the court shall impose a reaso nable
time limitation for such period of examination.
E. The qualified forensic examiner(s) examiner or examiners
shall receive instructions that they shall examine the patient to
determine:
1. If the person is abl e to appreciate the nature of the
charges made against such person;
2. If the person is able to consult with the lawyer and
rationally assist in the preparation of the defense of such person;
3. If the person is unable to appreciate the nature of the
charges or to consult and rationally assist in the preparation of
the defense, whether the person can attain competency within a
reasonable period of time as defined in Section 1175.1 of this title
if provided with a course of treatment, therapy or training;
4. If the person is a person requiring treatment as defined by
Section 1-103 of Title 43A of the Oklahoma Statutes;
5. If the person is incompetent because the person is
intellectually disabled as defined in Section 1408 of Title 10 of
the Oklahoma Statutes;
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6. If the answers to questions requirements of paragraphs 4 and
5 of this subsection are no not established, why the reasoning for
which the defendant is otherwise incompetent; and
7. If the person were released, whet her such person would
presently be dangerous as defined in Section 1175. 1 of this title.
F. Upon completion of the competency evaluation, the Department
of Mental Health and Substance Abuse Services or qualified forensic
examiner designated by the Departm ent to perform competency
examinations shall notify the court of its fin dings. If the person
is in the custody of the Department of Mental Health and Substance
Abuse Services, the person shall be returned to the court in the
customary manner within five ( 5) business days. If the person is
not returned within that time, the c ounty in which the proceedings
are to be held shall pay the costs of maintaining the person at the
institution or facility for the period of time the person remains at
the institution or facility in excess of the fiv e-day period.
SECTION 3. AMENDATORY 22 O.S. 2021, Section 1175.6, is
amended to read as follows:
Section 1175.6. Upon the finding by the jury or the court as
provided by Section 1175.5 of this title, the court shall issue the
appropriate order regarding the person as follows:
1. If the person is found to b e competent, the criminal
proceedings shall be immediately resumed by setting a competency
hearing within thirty (30) business days ;
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2. If the person is found to be incompetent because the person
is a person requiring treatment as defined in Title 43A of the
Oklahoma Statutes, the court shall issue the appropr iate order as
set forth in Section 1175.6a of this title;
3. If the person is found to be incompetent because the person
is intellectually disabled as defined in Section 1408 of Title 10 of
the Oklahoma Statutes, the court shall issue the appropriate orde r
as set forth in Section 1175.6b of this title; and
4. If the person is found to be incompetent for reasons other
than the person is a person requiring treatm ent as defined by
Section 1-103 of Title 43A of the Oklahoma Statutes, or for reasons
other than the person is intell ectually disabled as defined in
Section 1408 of Title 10 of the Oklahoma Statutes, the court shall
issue the appropriate order as set forth in Section 1175.6c of this
title.
SECTION 4. AMENDATORY 22 O.S. 2021 , Section 1175.6a, is
amended to read as follows:
Section 1175.6a. A. 1. If the a person charged with any
felony or a violent misdemeanor is found to be incomp etent prior to
conviction because he or she is a person requiring treatment as
defined in Section 1 -103 of Title 43A of the Oklahoma Statutes, but
capable of achieving competence with treatment within a reasonable
period of time as defined by Section 1175. 1 of this title, the court
shall suspend the criminal proceedings and order the Department of
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Mental Health and Substance Abuse Services to provide treatment,
therapy or training which is calculated to allow the pers on to
achieve competency. Such treatment, therapy, or training shall be
provided in the jail or detention facility where the person is being
held, unless the court determines that the person can be treated in
an outpatient setting or the Department determ ines that the person
should be transported to a facility designated by the Department to
provide such treatment, therapy, or training. The Department may
designate or contract with a willing entity to provide such
competency restoration services in the jail or detention facility on
behalf of the Department, provided the entity has qualified
personnel. The court shall further order the Department to take
custody of the individual as soon as a forensic bed beco mes
available, unless both the Department and t he county jail where the
person is being held determine that it is in the best interests of
the person to remain in the county jail. Such competency
restoration services shall begin within a reasonable period of time
after the court has determined that th e person is not competent to
stand trial.
The person shall remain in the custody of the county jail until
such time as the Department has a bed available at the forensic
facility unless competency restoration services are provided by a
designee of the Depa rtment, in which case custody of the per son
shall be transferred to the Department All transportation pursuant
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to this section shall be conducted by the county sheriff department
of the county where the person is charged.
2. If a person charged with a non -violent misdemeanor is found
to be incompetent prior to conviction because he or she is a person
requiring treatment as defined in Section 1 -103 of Title 43A of the
Oklahoma Statutes, the court shall commence civil commitment
proceedings pursuant to Title 43A of the Oklahoma Statutes and shall
dismiss without prejudice the criminal proceeding. If the person is
subsequently committed to the Department, the statute of limitations
for the criminal charges that w ere dismissed by the court shall be
tolled until the person is discharged from the Depa rtment pursuant
to Section 7-101 of Title 43A of the Oklahoma Statutes .
B. The Department of Mental Health and Substance Abuse Services
or designee shall make periodic reports to the court as to the
competency of the defendant.
C. If the person is determ ined by the Department of Mental
Health and Substance Abuse Services or designee to have regained
competency, or is no longer incompetent because the person is a
person requiring treatment as defined by Title 43A of the Oklahoma
Statutes, a hearing shall b e scheduled within twenty (20) days:
1. If found competent by the court or a jury after such
rehearing, criminal proceedings shall be immediately resumed;
2. If the person is found to continue to be incompetent bec ause
the person is a person requiring tr eatment as defined in Title 43A
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of the Oklahoma Statutes, the person shall be returned to the
custody of the Department of Mental Health and Substance Abuse
Services or designee;
3. If the person is found to be inco mpetent because the person
is intellectually disabled as defined by Title 10 of the Oklahoma
Statutes, the court shall issue the appropriate order as set forth
in Section 1175.6b of this title;
4. If the person is found to be incompetent for reasons other
than the person is a person requiring t reatment as defined by Title
43A of the Oklahoma Statutes, and other than the person is
intellectually disabled as defined in Title 10 of the Oklahoma
Statutes, and is also found to be not dangerous as defined by
Section 1175.1 of this title, the court sha ll issue the appropriate
order as set forth in Section 1175.6b of this title; or
5. If the person is found to be incompetent for reasons other
than the person is a pers on requiring treatment as defined by Title
43A of the Oklahoma Statutes, and other than the person is
intellectually disabled as defined in Title 10 of the Oklahoma
Statutes, but is also found to be dangerous as defined by Section
1175.1 of this title, the court shall issue the appropriate order as
set forth in Section 1175.6c of this title.
D. If the person is found to be incompetent because the person
is a person requiring treatment as defined by Section 1 -103 of Title
43A of the Oklahoma Statutes, but n ot capable of achieving
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competence with treatme nt within a reasonable period of time as
defined by Section 1175.1 of this title, the court shall commence
civil commitment proceedings pursuant to Title 43A and shall dismiss
without prejudice the criminal pr oceeding. If the person is
subsequently committed to the Department of Mental Health a nd
Substance Abuse Services pursuant to Title 43A, the statute of
limitations for the criminal charges which were dismissed by the
court shall be tolled until the person is discharged from the
Department of Mental He alth and Substance Abuse Services pursua nt to
Section 7-101 of Title 43A of the Oklahoma Statutes.
SECTION 5. AMENDATORY 22 O.S. 2021 , Section 1175.6b, is
amended to read as follows:
Section 1175.6b. A. If the person is found to be incompetent
primarily because the pe rson is intellectually disabled as defined
in Section 1408 of Title 10 of the Oklahoma Statutes, and is also
found by the court to be dangerous as defined by Section 1175.1 of
this title, the court shal l suspend the criminal proceedings, and
shall place the person into the custody of the Office of Public
Guardian. The Office of Public Guardian shall act with all powers
set forth in the Oklahoma Public Guardianship Act, and:
1. The Office of Public Guar dian shall place any person placed
in its custody under this title in a facility or residential
setting, private or public, willing to accept the individual and
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that has a level of supervision and security that is appropriate to
the needs of the person;
2. Such placements shall be within the sole discretion of the
Office of Public Guardian;
3. All such placement s made by the Office of Public Guardian
shall be made within six (6) months of the date of the order
awarding custody to the Office of Public Guar dian;
4. The Office of Public Guardian shall report t o the court at
least every six (6) months as to the stat us of the person including,
but not limited to, the type of plac ement, services provided, level
of supervision, the medical and psychological heal th of the person,
whether the person would be dangerou s if conditionally released into
a nonsecure environment , the assistance and services that would be
required for such co nditional release and whether the person has
achieved competency;
5. If the person is determined by the Office of Public Guardian
to have regained competency or that conditional release to a private
guardian or other caretaker is appropriate, a hearing sh all be
scheduled within twenty (20) days. If found competent by the court
or a jury after such rehearing, criminal proceedings shall be
resumed. If the court finds conditional release to be appropriate,
the court shall make an appropriate order for condi tional release;
and
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6. The provisions of subsections C, H and I of Section 6 -101 of
Title 30 of the Oklahoma Statutes shall not apply t o custody orders
arising under this title.
B. If the person is found to be incompetent for reasons other
than the person is a person requiring treatment as defined by
Section 1-103 of Title 43A of the Oklahoma Statutes and is found to
be not dangerous as defined by Section 1175.1 of this title, the
court shall suspend the criminal proceedings and either refer the
person to the Department of Human Services for consideration of
voluntary assistance or con ditionally release the person as set
forth in this section.
1. For any person recommended for conditional rel ease, a
written plan for services shall be prepared by the Depar tment of
Human Services and filed with the court. In its order of
conditional release, the court shall specify the conditions of
release and shall direct the appropriate agencies or persons t o
submit annual reports regarding the person ’s compliance with the
conditions of release and progress:
a. to be eligible for conditional release, the person
shall agree, in writing, that during the pe riod the
person is granted conditional release and is su bject
to the provisions thereof, there shall be free
transmission of all pertinent information, including
clinical information regarding the perso n, among the
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person’s treatment providers, the appropr iate district
attorneys, law enforcement and court perso nnel. To
effect this agreement, the person shall execute any
releases required by law to allow for the
dissemination of this information,
b. the court’s order placing the person on conditional
release shall include notice that the person ’s
conditional release may be revoked upon good cause,
c. the district attorney, a s well as any agency or
individual involved in providing services with regard
to the person’s conditional release, may prepare and
file an affidavit under oath if the district attorney,
agency, or individual believes that the person has
failed to comply with the conditions of release. The
court shall then conduct a hearing to determine if the
person has violated the conditions of release. Notice
of the hearing shall be issued, at least twenty -four
(24) hours before the hearing, to the Department of
Human Services, the person, trial counsel for the
person, and the client advocate genera l of the
Department of Human Services. After reviewin g the
evidence concerning any alleged violation of the
conditions of the release, the person ’s progress,
treatment alternatives, and the need for public
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safety, the court may order no change to the
conditions for the person’s release or modify the
conditions of release, and
d. the person placed on conditional r elease shall remain
in a conditional release status until the re viewing
court issues a full release from all conditions.
2. If the person is dete rmined by the Department of Human
Services to have reg ained competency, a hearing shall be scheduled
within twenty (20) days:
a. if found competent by the court or a jury aft er such
rehearing, criminal proceedings shall be immediately
resumed by setting a competency hearing within thirty
(30) business days,
b. if the person is found to continue to be incompetent,
the person shall be returned to either conditional
release or referred to the Department of Human
Services for consideration of voluntary assistanc e.
SECTION 6. AMENDATORY 22 O.S. 2021, Section 1175.8, is
amended to read as follows:
Section 1175.8. If the medical supervisor reports that the
person appears to have achieved competency after a finding of
incompetency, the court shall hold another competency hearing to
determine if the person has achieved competency. If competency has
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been achieved, the crimi nal proceedings shall be immediately resumed
by setting a competency hearing within thirty (30) business days.
SECTION 7. This act shall become effective N ovember 1, 2023.
COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY
February 28, 2023 - DO PASS