Req. No. 5709 Page 1 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
STATE OF OKLAHOMA
1st Session of the 59th Legislature (2023)
HOUSE BILL 2387 By: Kannady
AS INTRODUCED
An Act relating to criminal procedure; amending 22
O.S. Sections 1175.1 , 1175.3, 1175.4 and 1175.6b,
which relate to the determination of competency;
providing an exception to certain defined term;
directing notice be sent to Office of Public
Guardian; authorizing the Office of Public Guardia n
to have standing to participate in certain
proceedings; limiting the court to diagnoses,
opinions and recommendations in certain intellectual
disability cases; 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 through 1176 of this
title:
1. "Competent" or "competency" means the present ability of a
person arrested for or charge d with a crime to understand the nature
of the charges and proceedings brought against him or her and to
effectively and rationally assist in his or her defense;
Req. No. 5709 Page 2 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
2. "Incompetent" or "incompetency" means the present inability
of a person arrested for or ch arged with a crime to understand the
nature of the charges and proceed ings brought against him or her and
to effectively and rationally assist in his or her defense;
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. "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, pretri al hearings and trial;
5. "Qualified forensic examiner " means any:
a. psychiatrist with forensic training and experience,
b. psychologist with forensic training and experience, or
c. a licensed mental health professional whose forensic
training and experience enable him or her to form
expert opinions regarding mental illnes s, competency
and dangerousness and who has been approved to render
such opinions by the court ; except that, a licensed
mental health professional shall not be qualified to
issue expert opinions as to competency or
dangerousness in cases wherein the person is alleged
to be incompetent due to intellec tual disability;
Req. No. 5709 Page 3 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
6. "Reasonable period of time " means a period not to exceed the
lesser of:
a. the maximum sentence specified for the most s erious
offense with which the defendant is charg ed, or
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 30 of the Oklahoma Statutes.
SECTION 2. AMENDATORY 22 O.S. 2021, Section 1175.3, is
amended to read as follows:
Section 1175.3 A. Upon filing of an application for
determination of competency, the 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 provided by Section 1175.2 of this title.
B. The court shall hold a hearing on the date provided. At the
hearing, the court shall examine the application for determination
of competency to determine if it alleges facts sufficient to raise a
doubt as to the competency of the person. Any additional evidence
tending to create a doubt as to the competency of the person may be
presented at this hearing.
C. If the court finds th ere is no doubt as to the competency of
the person, it shall order th e criminal proceedings to resume.
D. 1. a. If the court finds there is a doubt as to the
competency of the person, it shall order the person to
Req. No. 5709 Page 4 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
be examined by the Department of Mental Hea lth and
Substance Abuse Services or by a qualified forensic
examiner designated by the Department to perform
competency examinations.
b. In addition, the Developmental Disabilities Services
Division and the Office of Public Guardian of the
Department of Human Services shall receive written
notice from the district attorney who filed the
criminal petition, and be authorized by order of the
court to have a psychologist or other appropriate
clinician participate with 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 Services may issue a separate
opinion and recommendation to the court. In cases
wherein intellectual disability may b e involved, the
Office of Public Guardian shall have standing to
participate in any stage of the proceedings it chooses
or deems necessary.
2. The person shall be examined by a qualified forensic
examiner on an outpatient basis prior to referral for any n ecessary
inpatient evaluation, as ordered by the court. The outpatient
Req. No. 5709 Page 5 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
examination may be conducted in the community, the jail or detention
facility where the person is held.
3. If the court determines that the person whose competency is
in question may be dangerous as defined in Section 1175.1 of this
title, it shall order the person retained in a secure facility until
the completion of the competency hearing provided 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, it may commit the perso n to the
custody of the Department of Mental Health and Substance Abu se
Services or any other state agency or private facility for the
examination required by this subsection. The person shall be
required to undergo examination for a period of time suffic ient for
the qualified forensic examiner(s) to reach a conclusion as to
competency, and the court shall impose a reasonable time limitation
for such period of examination.
E. The qualified forensic examiner(s) shall receive
instructions that they shall ex amine the patient to determine:
1. If the person is able to apprecia te 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;
Req. No. 5709 Page 6 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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 d efined in Section 1408 of Title 10 of
the Oklahoma Statutes;
6. If the answers to questions 4 and 5 are no, why the
defendant is incompetent; and
7. If the person were released, whether such person would
presently be dangerous as defined in Section 1175. 1 of this title.
F. Upon completion of the competency evaluation, th e Department
of Mental Health and Substance Abuse Services or qualified forensic
examiner designated by the Department to perform competency
examinations shall notify the court of its fin dings. If the person
is in the custody of the Department of Mental H ealth 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
Req. No. 5709 Page 7 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
institution or facility for the period of time the person remains at
the institution or facility in excess of the five -day period.
SECTION 3. AMENDATORY 22 O.S. 2021, Section 1175.4, is
amended to read as follows:
Section 1175.4 A. A hearing to determine the competency of the
person whose competency is in question shall be held within thirty
(30) days after the qualified forensic e xaminer(s) have made the
determination required in Section 1175.3 of t his title.
B. The court, at the hearing, shall determine by a
preponderance of the evidence if the person is incompetent. Such
determination shall include consideration of all reports prepared by
the qualified forensic examiner (s); except that, the court shall be
limited to the diagnoses , opinions, and recommendations of examiners
identified and set forth in subparagraph b of paragraph 1 of
subsection D of Section 1175.3 of this title i n any case wherein
intellectual disability may be involved . The person shall be
presumed to be competent for the purp oses of the allocation of the
burden of proof and burden of going forward with the evidence. If
the court deems it necessary, or if the p erson alleged to be a
person requiring treatment, or any relative, fri end, or any person
with whom he may reside, or a t whose house the person may be, shall
so demand, the court shall schedule the hearing on the application
as a jury trial to be held withi n seventy-two (72) hours of the
request, excluding weekends and legal holidays, or within as much
Req. No. 5709 Page 8 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
additional time as i s requested by the attorney of the person whose
competency is in question, upon good cause shown. The jury sha ll be
composed of six (6) p ersons having the qualifications required of
jurors in courts of recor d, summoned to determine the questions of
the person's competency and need for treatment. Whenever a jury is
required, the court shall proceed to the selectio n of such jury in
the manner as provided by law and such jury shall determine the
questions of the competency and need for treatment of the perso n
whose competency is in question. The jurors shall receive fees for
attendance and mileage as are allowed by law.
C. The person whose c ompetency is in question shall have the
right to be present at the hea ring on the petition unless it is made
to appear to the court that the presence of the person makes it
impossible to conduct the hearing in a reasonable manner . The court
may not decide in advance of the hearing, solely on the basis of the
certificate of the examining doctor or doctors, that the person
whose competency is in question should not be allowed to appear. It
shall be made to appear to the court base d on clear and convincing
evidence that alternatives to exclusion were attempted before the
court renders the person's removal for that purpose o r the person's
appearance at such hearing improper and unsafe.
D. All witnesses shall be subject to cross -examination in the
same manner as is provided by law. If so stipulated by counsel for
a person whose competency is in question, the district attorne y and
Req. No. 5709 Page 9 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
the court, testimony may be given by telephone or other electronic
transmitting device approved by the co urt. No statement, admissi on
or confession made by the person whose competency is in question
obtained during the examination for competency may be used for any
purpose except for proceedings under this act. No such statement,
admission or confession may be used against such perso n in any
criminal action whether pending at the time the hearing is he ld or
filed against such person at any later tim e, directly, indirectly or
in any manner or form.
E. If the question of competency is submitted to a jury, the
court shall instruct the j ury as to the law regarding competency,
and the findings they are to m ake. If the trial of the question is
to the court, the court shall make the required findings.
F. In any case wherein intellectual disability may be in volved,
the Office of Public Guardian shall have standing to participate in
any hearing held pursuant to this section that it chooses or deems
necessary.
SECTION 4. 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 person is i ntellectually 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 shall suspend the criminal proceedings, and
Req. No. 5709 Page 10 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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 Pub lic Guardian shall place any person placed
in its custody under this ti tle in a facility or residential
setting, private or public, willing to accept the individual and
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 Pub lic Guardian;
4. The Office of Public Guardian shall report to the cou rt at
least every six (6) months as to the stat us of the person including,
but not limited to, the type of placement, services provided, level
of supervision, the medical and psychologi cal health of the person,
whether the person would be dangerous if cond itionally released into
a nonsecure environment , the assistance and services that would be
required for such conditional 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 shall be
Req. No. 5709 Page 11 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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 conditional release;
and
6. The provisions of subsections C, H and I of Sectio n 6-101 of
Title 30 of the Oklahoma Statutes shall not apply to 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 b y 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 conditionally 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 Department 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:
Req. No. 5709 Page 12 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
a. to be eligible for conditional r elease, the person
shall agree, in writing, that during the period 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 t he person, among the
person's treatment providers, the appropriate dist rict
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, as well as any agency or
individual involved in providing services with reg ard
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 d etermine 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
Req. No. 5709 Page 13 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Human Services, the person, trial counsel for the
person, and the client advocat e general of the
Department of Human Services. After reviewing the
evidence concerning any alleged violation of the
conditions of the release, the person 's progress,
treatment alternatives, and the need for public
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 reviewing
court issues a full release from all conditions.
2. If the person is determined by the Department of Human
Services to have regained com petency, a hearing shall be scheduled
within twenty (20) days:
a. if found competent by the court or a jury after such
rehearing, criminal proceedings shall be resumed, or
b. if the person is found to continue to be incompetent,
the person shall be returne d to either conditional
release or referred to the Department of Human
Services for consideration of voluntary assistance.
C. The Office of Public Guardian shall h ave standing to
participate in any proceedings held pursuant to subsection s A and B
of this section that it chooses or deems necessary.
Req. No. 5709 Page 14 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
SECTION 5. This act shall become effective November 1, 2023.
59-1-5709 GRS 01/18/23