Competency to Stand Trial Screener (Dusky / Article 46B)

Screen the Dusky Competency Factors

Check each statement that the facts of your case support, then note whether a mental illness or impairment appears to drive the problem. The screener reports whether those facts likely amount to a suggestion of incompetency that would warrant an informal inquiry under article 46B, and points you to the motion that raises it. It runs entirely in your browser and sends nothing anywhere.

The Dusky Standard for Competency to Stand Trial

The Constitution forbids trying a defendant who is mentally incompetent. In Dusky v. United States, 362 U.S. 402 (1960), the Supreme Court held that it is not enough that a defendant is “oriented to time and place” and has “some recollection of events.” The test is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.

Two capacities therefore matter, and a deficit in either one is enough:

• Understanding the proceedings — both a factual understanding (who the judge, prosecutor, and jury are; what the charge is; what a plea means) and a rational understanding (grasping how those facts apply to the defendant's own situation rather than through a delusional lens).
• Assisting counsel — a present ability to communicate with the defense lawyer, relate events, and make reasoned decisions about the case. Drope v. Missouri, 420 U.S. 162 (1975), framed the same idea as the capacity “to consult with counsel, and to assist in preparing his defense.”

Competency is measured in the present tense. The question is the defendant's mental state now, as trial approaches — not intelligence, not a diagnosis standing alone, and not the defendant's mental state when the offense occurred. A person can carry a serious psychiatric diagnosis and still be competent, and a person with no formal diagnosis can be incompetent.

How Texas Article 46B Codifies the Dusky Test

Texas puts the Dusky standard into statute at Tex. Code Crim. Proc. art. 46B.003(a). A person is incompetent to stand trial if the person does not have:

1. sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or
2. a rational as well as factual understanding of the proceedings against the person.

The word “or” is doing real work: a defendant who understands the proceedings but genuinely cannot work with counsel — or who can talk with counsel but cannot rationally understand the case — still meets the statutory definition of incompetent. The Texas Court of Criminal Appeals confirmed in Turner v. State, 422 S.W.3d 676 (Tex. Crim. App. 2013), that this statutory language simply codifies the constitutional standard.

Turner also drew a careful line around mental illness. Mental illness by itself does not make a defendant incompetent, and neither does a stubborn refusal to cooperate with the lawyer. Incompetency appears when the illness is the engine of the problem — when it is what prevents the defendant from rationally understanding the case or engaging rationally with counsel. That distinction is exactly what the third factor in this screener is trying to capture.

The Suggestion of Incompetency and the Informal Inquiry

Raising competency is deliberately easy; resolving it is not. Under art. 46B.004, either party may suggest by motion — or the trial court may suggest on its own motion — that the defendant may be incompetent to stand trial. If evidence suggesting incompetency comes to the court's attention from any source, the court on its own motion shall suggest it. That is why competency is often described as a duty the court cannot ignore: Pate v. Robinson, 383 U.S. 375 (1966), held that a judge must act on his own motion when the evidence raises a bona fide doubt, and Drope made that a continuing duty that lasts throughout trial.

Once competency is suggested, art. 46B.004(c) directs the court to make an informal inquiry: it decides whether there is some evidence from any source that would support a finding that the defendant may be incompetent. The bar is low by design. Turner described the quantum as more than none or a scintilla, and — critically — at this stage the court looks only at the evidence tending to show incompetency and sets the competing evidence of competency aside.

The informal inquiry is a screening step, not the decision. If it turns up that quantum of evidence, the court orders a formal examination by a qualified examiner under art. 46B.005 and, where warranted, a formal competency trial. The document that starts this chain is the motion suggesting incompetency to stand trial. This screener is built around that low “some evidence” threshold rather than the ultimate question of whether the defendant is in fact incompetent.

Presumption of Competency and Burden of Proof

The defendant starts out presumed competent. Under art. 46B.003(b), a defendant is presumed competent and must be found competent unless proven incompetent by a preponderance of the evidence — the ordinary civil standard, meaning more likely than not.

That burden is constitutionally significant. In Cooper v. Oklahoma, 517 U.S. 348 (1996), the Supreme Court struck down a state rule that forced defendants to prove incompetency by clear and convincing evidence, because a heightened burden lets the State try a defendant who is more likely than not incompetent. At the same time, Cooper and Medina v. California, 505 U.S. 437 (1992), confirm that a State may lawfully presume competency and place a preponderance burden on the defendant.

Two burdens should not be confused. The presumption and preponderance burden govern the ultimate finding at a formal competency trial. The “some evidence” threshold governs only whether the court must inquire and evaluate in the first place. A case can clear the low screening threshold — enough to require an inquiry — and still end in a finding of competency once all the evidence is weighed.

Formal Examination, Trial, and Restoration

If the informal inquiry produces some evidence of incompetency, art. 46B.005 requires the court to order an examination by a qualified psychiatrist or psychologist and, unless the parties agree otherwise, to hold a formal hearing. The examiner's report addresses the Dusky capacities directly — whether the defendant can understand the proceedings and assist counsel — along with any diagnosis and the likelihood of restoration.

A finding of incompetency does not end the case; it pauses it. Under Subchapter D of chapter 46B, a defendant found incompetent is usually committed or placed for competency restoration — treatment, often including medication and education about the legal process, aimed at restoring the Dusky capacities. If competency is restored, the criminal proceedings resume where they left off. Chapter 46B also caps how long restoration efforts may continue, tying the maximum period to the seriousness of the charge, so that a competency commitment does not become an indefinite substitute for trial.

Because the trial court's duty is a continuing one under Drope, competency can be revisited if the defendant's condition changes after an earlier finding — a later deterioration can require a fresh inquiry even after a defendant was found competent once.

Competency to Stand Trial Versus the Insanity Defense

Competency and insanity are frequently confused, but they answer different questions at different points in time.

Competency to stand trial (present tense)

Asks whether the defendant can understand and participate in the trial now. It is governed by chapter 46B and the Dusky standard. It is not a defense to the charge; it decides only whether the case can go forward at all.

Insanity (past tense)

Asks about the defendant's mental state at the moment of the offense. Under Tex. Penal Code § 8.01, insanity is an affirmative defense available when, because of severe mental disease or defect, the defendant did not know that the conduct was wrong. Its procedures live in Tex. Code Crim. Proc. ch. 46C, not 46B.

The practical consequences differ completely. A successful insanity defense produces an acquittal (followed by its own commitment scheme). A finding of incompetency produces no verdict at all — the trial is suspended while restoration is attempted. A defendant can be perfectly sane at the time of the offense yet incompetent to be tried today, or legally insane at the time of the offense yet fully competent to stand trial now. This screener addresses only competency; it says nothing about the insanity defense.

Federal Competency Under 18 U.S.C. 4241

Federal court applies the same Dusky standard through a parallel statute. Under 18 U.S.C. § 4241, either party may move — or the court may act on its own motion — for a competency hearing, and the court shall grant the motion if there is reasonable cause to believe the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to understand the proceedings or to assist properly in his defense. That statutory language tracks Dusky and Drope almost word for word.

The federal mechanics resemble Texas's: the court may order a psychiatric or psychological examination under 18 U.S.C. § 4247, then hold a hearing, and if the defendant is found incompetent, § 4241(d) provides for hospitalization for restoration. A defendant in federal court raises the issue with a motion for a competency evaluation. The screener's factors are drawn to fit either forum, because the underlying constitutional test is identical — only the citation to the governing statute changes.

The Case Law Behind This Tool

The controlling decisions this tool is built on—each verified against the published opinion. Holdings are neutral summaries of the law, not predictions about any case.