‘This is a crisis.’ Lawmaker seeks transfer deadline for state hospital waitlist

AUSTIN (KXAN) – House lawmakers heard testimony Tuesday on a bill that would require mentally ill defendants in county jails to be transferred to a facility for competency restoration within three weeks of a court order, according to testimony at a House Corrections Committee hearing Tuesday.

State Rep. Gina Hinojosa, D-Austin, filed the bill – HB 479. Her legislation comes as the state hospital system’s waitlist and wait times near record highs. In some cases, mentally ill individuals charged with a crime and found incompetent to stand trial are waiting in county jails for years before being admitted to a state hospital to get help, according to Texas Health and Human Services Commission records.

“We have about 2,500 people across the state waiting in jail to access competency restoration services, and the state has been sued for its failure to timely transfer these individuals,” Hinojosa said Tuesday.

By not transferring mentally ill individuals in a timely manner, a burden is placed on the defendant and the county jails housing them without adequate resources, she said.

“This is a crisis, and we need to treat it as such,” she said.

KXAN has been reporting on the progressively growing waitlist for years. As of March, there were nearly 2,500 people on the state hospital’s forensic waitlist, a slight dip compared to last December, according to a state hospital spokesperson.

In December, the average wait for a maximum-security bed was 699 days, and the average for a non-maximum security bed was 227, according to state data.

Hinojosa’s office said the bill concept was brought to her by Keith Hampton, a Texas criminal defense attorney with years of experience handling mental health cases. Hampton testified Tuesday in favor of the bill.

‘Unconstitutional’ and ‘inhumane’

Hampton said the state hospital waitlist problem has been brewing for 25 years, and it impacts not just the defendant but all others involved in a case. When a person is found incompetent to stand trial, their case cannot proceed and the defense and prosecution cannot gather evidence or information from them.

Hampton said the three-week deadline is based on the insanity statute, which has a deadline for transfer to a mental health facility.

“Deadlines matter to agencies. When they see a statute that says ‘do it by then,’ suddenly they kick into gear,” Hampton said. “The competency statute does not have a deadline. So, we think that the deadline will be the impetus – the fire at the feet of the Health and Human Services agency – to do their job."

McLennan County District Attorney Josh Tetens also testified in favor of the bill. Tetens said mentally ill inmates are a danger to themselves and guards. His county has unsuccessfully sought grant funding for a jail-based competency restoration program.

“Right now we have a gentleman that has been waiting two years and three months for a bed to ‘be available and open,’” Tetens said. “This is not a defense or prosecution issue; this is absolutely a humane justice issue, period.”

Locked in Limbo

KXAN has reported extensively on the waitlist and its impact on mentally ill people. In 2020, when KXAN reported our "Locked in Limbo" project, the total waitlist had hit a record of 1,017 people.

A 2021 KXAN investigation, Mental Competency Consequences, discovered the state does not track the number of people dying in jail before getting to a state hospital. The state also doesn’t track other crucial data points of people while they are on the waitlist, such as whether they are homeless or can afford an attorney.

Since KXAN began reporting on the state hospital waitlist, the number of people on the waitlist has more than doubled and the number of available state hospital beds has dwindled to about 66% last December.

KXAN has also followed quarterly meetings of the Joint Committee on Access and Forensic Services, which monitors the waitlist and advises HHSC’s forensic planning. In the past year, one member of the committee described the waitlist as “horrifying.” In previous JCAFS meetings, state hospital officials said staffing problems have resulted in the large number of offline beds, and they have implemented raises and hiring sprees to fill vacancies.

Hinojosa said her office is currently working on a committee substitute that would “clean up some of the language in the bill,” and those changes would be distributed soon to the committee lawmakers’ offices. The bill was left pending in committee. KXAN will continue following Hinojosa’s bill and other legislation that could impact the state hospital waitlist during the legislative session.