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STATE OF OKLAHOMA
1st Session of the 59th Legislature (2023)
SENATE BILL 771 By: Howard
AS INTRODUCED
An Act relating to determination of compete nce;
amending 22 O.S. 2021, Sections 1175.1 , 1175.3,
1175.4, and 1175.6b, which relate to definitions and
procedures for determining com petency; modifying
definitions; providing for standing for Office of
Public Guardian to participate in certain
proceedings; establishing certain exception for
reports to be considered by the court; updating
statutory reference; 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 charged with a crime to understand the nature
of the charges and proceedings bro ught against him or her and to
effectively and rati onally assist in his or her defense;
2. “Criminal proceeding” means every stage of a criminal
prosecution after arrest and before judgment, including, but not
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limited to, interrogation, lineup, preliminar y hearing, motion
dockets, discovery, pretrial hear ings 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 ch arged 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;
3. “Dangerous” means a person who is a person requ iring
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 hea ring, motion
dockets, discovery, pretri al 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 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
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expert opinions regarding mental illness, comp etency
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 exper t 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 not to exceed
the lesser of:
a. the maximum sentence specified for th e most serious
offense with which the defendant is charged, 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 3 0 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 practic able, but at least 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 determi ne if it alleges facts sufficient to ra ise a
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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 there is no doubt as to th e competency of
the person, it shall or der the 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
be examined by the Department of Mental Health 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 recei ve written
notice from the district att orney 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 where 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 cou rt. In such
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cases where intellectual disability may be involved,
the Office of Public Guardian shall have standing to
participate in any stage of the proceedings as deemed
necessary by the Office.
2. The person shall be examined by a qualified foren sic
examiner on an outpatient basis prior to referral for any necessary
inpatient evaluation, as ordered by the court. The outpa tient
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 i s
a person requiring treatment as defined in Section 1 -103 of Title
43A of the Oklahoma Statutes, it may commit the person to t he
custody of the Department of Mental Healt h and Substance Abuse
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 sufficient f or
the qualified forensic examiner(s) examiner or examiners to reach a
conclusion as to competency, and the court shall impose a reasonable
time limitation for such period of examination.
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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 able 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 th e defense of such person;
3. If the person is unable to appreciate the nature of the
charges or to consult and rationally a ssist in the preparation of
the defense, whether the person can attain competency within a
reasonable period of time as defined in S ection 1175.1 of this title
if provided with a course of treatment, therapy or training;
4. If the person is a person requi ring treatment as defined by
Section 1-103 of Title 43A of the Oklahoma Statutes;
5. If the person is incompetent because the perso n is
intellectually disabled as defined in Section 1408 of Title 10 of
the Oklahoma Statutes;
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, whether 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
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examiner designated by the Department to perform competency
examinations shall notify the court of it s findings. If the person
is in the custody of the Department of Mental Health and Substance
Abuse Services, the person shall be re turned to the court in the
customary manner within five (5) business days. If the person is
not returned within that time, the county 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 a t
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 comp etency is in question shall be held within
thirty (30) days after the qualified forensic examiner(s) examiner
or examiners have made the determination required in Section 1175.3
of this title. In such cases where intellectual disability may be
involved, the Office of Public Guardian shall have standing to
participate in any stage of the proceedings as deemed necessary by
the Office.
B. The court, at the hearing, shall determine by a
preponderance of the evidence if t he person is incompetent. Such
determination shall include consideration of all reports prepar ed by
the qualified forensic examiner(s) examiner or examiners ; provided,
however, in any case where intellec tual disability may be involved,
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the court shall be limited to the diagnoses, opinions, and
recommendations of examiners set forth in subparagraph b of
paragraph 1 of subsection D of Section 1175.3 of this title. The
person shall be presumed to be competent for the purposes of the
allocation of the burden of proof and burden of going forward wi th
the evidence. If the court deem s it necessary, or if the person
alleged to be a person requiring treatment, or any relative, friend,
or any person with whom he may reside, or at whose house the person
may be, shall so demand, the court shall schedule t he hearing on the
application as a jury trial to be held within seventy-two (72) hours
of the request, excluding weekends and legal holidays, or within as
much additional time as is requested by the attorney of the pe rson
whose competency is in question, u pon good cause shown. The jury
shall be composed of six (6) persons having the qualifications
required of jurors in courts of record, summoned to determine the
questions of the person ’s competency and need for treatm ent.
Whenever a jury is required, the court shall proceed to the
selection 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 person whose competency is in question. T he jurors
shall receive fees for attend ance and mileage as are allowed by law.
C. The person whose competency is in question shall have the
right to be present at the hearing on the petition unless it is made
to appear to the court that the presence of th e person makes it
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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 shou ld not be allowed to appear. It
shall be made to appear to the court base d on clear and convin cing
evidence that alternatives to exclusion were attempted before the
court renders the person ’s removal for that purpose or the person ’s
appearance at such hea ring 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 attorney and
the court, testimony may be giv en by telephone or other electronic
transmitting device approved by the co urt. No statement, a dmission
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 p roceedings under this act Section 1175.1 et seq.
of this title. No such statement, admission or confession may be
used against such person in any criminal action whether pending at
the time the hearing is held or filed against such person at any
later time, directly, indirectly or in any manner or form.
E. If the question of com petency is submitted to a jury, the
court shall instruct the jury as to the law regarding competency,
and the findings they are to make. If the trial of the question is
to the court, the court shall make the required findings.
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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 int ellectually 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
shall place the person into the custody of the Office of Public
Guardian. The Office of Public Guard ian shall act with all powers
set forth in the Oklahoma Public Guardianship Act, and:
1. The Office of Public Guardian shall place any person placed
in its custody under this titl e 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 Public Guardian;
4. The Office of Public Guardian shall report to the court 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 psychological health of the person,
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whether the person would be dangerous if condit ionally released into
a nonsecure environment , the assistance and services t hat 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 caret aker is appropriate, a hearing shall 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 conditional release;
and
6. The provisions of subsections C, H and I of Section 6 -101 of
Title 30 of the Oklahoma Statutes shall not apply to custody o rders
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 proceedin gs 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.
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1. For any person recommended for conditional rel ease, a
written plan for servic es 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 regardi ng 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 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 the person, among the
person’s treatment providers, the appropriate distri ct
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 c ause,
c. the district attorney, as well as any agency or
individual involved in providing services with regard
to the person’s conditional release, may prepare and
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file an affidavit under oath if the district attorney,
agency, or individual believes that t he 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 hea ring, to the Department of
Human Services, the person, trial counsel for the
person, and the client advocate general of the
Department of Human Services. After reviewing the
evidence concerning any alleged violation of the
conditions of the release, the p erson’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 compe tency, 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,
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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 assistance.
C. The Office of Public Guardian shall have standing to
participate in any proceeding held pursuant to this sec tion as
deemed necessary by the Office.
SECTION 5. This act shall become effective No vember 1, 2023.
59-1-1521 TEK 1/18/2023 6:49:47 PM