In October 2021, the number of people found mentally incompetent to stand trial and waiting in Texas jails for restoration treatment at a state hospital hit a new record: 1,838.
A state advisory committee admits specific data on individuals waiting could help reduce that backlog, but KXAN discovered many critical details are not tracked.
Without that data, the state acknowledges the consequences of the growing waitlist are largely unknown – including when people die waiting.
This project was supported by the USC Annenberg Center for Health Journalism.
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In Texas, people charged with crimes and found mentally incompetent to stand trial most often obtain restoration treatment at a state hospital before returning to jail and being able to actively participate in their defense. In recent years, there have been efforts to increase other competency restoration alternatives – like jail-based or outpatient methods – but for some people, like Carter, those options are not always available.
Described by Travis County Sheriff Sally Hernandez as a "gentle giant, who became very dear to the corrections officers, counselors and medical staff who cared for him daily," Carter had been previously diagnosed with bipolar and schizoaffective disorders stemming from mental and intellectual disabilities, according to past providers and jail records. After his Austin arrest in late 2017, medical forms indicated he had suicidal thoughts, heard noises and voices and was depressed. When jail staff found him dead in his cell in July 2018, he had been awaiting transfer to a state-supported living center to continue restoration efforts.
"We do our very best with the resources we have, to give quality care to this vulnerable population for as long as they're required to be in our custody," Hernandez said in a statement. Her office oversees the Travis County Correctional Complex, where Carter was housed. "I wish (he) had been receiving care in a proper mental health care facility from the beginning."
Carter grew up bouncing from foster families to group homes. He had no way to support himself financially. When he died, he was just 23. It is unclear how his other physical health issues – including hypertension and obesity – could have factored into how long he waited for competency restoration treatment, and the sheriff's office would not comment further on his case.
The sheriff's office said it does not inform the Texas Health and Human Services Commission, the umbrella state agency over the JCAFS, when people on the waitlist – like Carter – die. The sheriff's office said it reports such incidents to three agencies: the Texas Commission on Jail Standards, the Office of Attorney General of Texas and the Travis County District Attorney's Office.
HHSC's spokesperson said it "is dependent upon the reporting of the courts and county jails to provide reasons or factors why individuals are removed from the state hospital waitlist, including the death of the individual." Regardless, Carter's death would not have been part of any effort to measure possible waitlist trends by HHSC – beyond noting one less person waiting. KXAN investigators discovered deaths are just one of several crucial data points going untracked by the JCAFS, which makes recommendations to HHSC and state lawmakers, in part, to help drive down the waitlist numbers.
"A long waiting list is not a good thing," JCAFS Chair Stephen Glazier told KXAN in October when the waitlist hit a new record, soaring beyond 1,830 people. "There are all kinds of negative consequences that come from that. It's important, I think, to reinforce everybody's motivation to work as hard as we can to fix this problem."
During his conversation with KXAN, Glazier said he would make it a priority for the committee to address how it could track the housing status of people on the waitlist and other details related to homelessness. HHSC later told KXAN it had recently started collecting data on those individuals' race and ethnicity and would be providing those details to the committee by January 2022.
Mental health advocates like Lynda Frost, formerly of the Hogg Foundation for Mental Health, acknowledge the committee, established in 2015, has improved its data initiatives in recent years. That work has largely focused on statewide aggregate overviews with a recently formed data analysis subcommittee and updates from the state's forensic director. But Frost agrees more information could help the state better deliver services to individuals on the waitlist and possibly reduce their wait times.
"We know that people are not treated equally across our criminal justice system," she said. "We want to know how that plays out. And if we don't have that data, it's harder to figure out what we can do to ensure that our justice systems are truly just."
Until the committee begins tracking those additional details statewide, it is only possible to understand the scope of such problems through data analysis by county. Because the identities on the state's waitlist are hidden for privacy reasons, KXAN took a backdoor approach, obtaining district clerks' lists of felony defendants found incompetent to stand trial, then examining specific cases to learn more about their backgrounds. But county jails and courts in Texas do not have a uniform data collection system, and we discovered some of what they do collect is likely inaccurate and not always required to be passed along to HHSC.
Carla Thomas, Carter's former guardian, told KXAN she believes the state, jail and court working together to track and share more details about the young man after his arrest might have helped prevent his death and maybe others in the future.
"They need to have awareness and communicate with each other on the importance of passing on information," Thomas said.
Travis County declined an on-camera interview and denied KXAN evidence in Carter's death, citing an open records measure allowing Texas law enforcement agencies to withhold information related to suspects who are not convicted or do not receive deferred adjudication – which includes Carter since he died before his case was resolved. That legal maneuver is commonly known among public information advocates as the "dead suspect loophole," and efforts to close it have failed the last three legislative sessions – attracting the most opposition from the state's police unions.
Carter's death followed a string of at least three others in the Travis County jail that same year. The sheriff's office previously filed a lawsuit against the state to deny the legal advocacy group, Disability Rights Texas, access to information in Carter's case. The attorney general had ruled some of the information sought by the group should be released, so the sheriff's office sued to continue withholding it – largely claiming officer safety and jail security threats. Disability Rights tells KXAN it was eventually able to obtain Carter's records through its protection and advocacy access authority under federal law, which requires the group to keep those details confidential.
While KXAN was also able to obtain some records, audio and photos in Carter's case gathered during a Texas Rangers' investigation, surveillance video showing what happened in his cell during that timeframe remains hidden from the public. The footage, detailed in the Rangers report, captured Carter falling from his bed and landing face down on the floor where he remained unmoving for the next 2 hours and 39 minutes – during which a corrections officer either checked his cell or walked by nearly a dozen times before alerting a medical team to try to revive Carter.
Carter was one of at least 12 mentally incompetent, incarcerated individuals KXAN discovered died in Texas' most populated counties since early 2015. Because the state does not track that number, we had to cross-reference custodial deaths – which sheriffs' offices are required to submit to the attorney general's office – with district clerks' lists of people found mentally incompetent to stand trial – county by county. The total we compiled, so far, is just from Travis, Harris, Bexar, Dallas and Tarrant Counties. Reviewing Texas' other 249 counties would require more time and resources but could likely reveal additional deaths.
KXAN shared its tally with the JCAFS chair, who stopped short of saying the committee would begin tracking deaths. Yet Glazier called what we uncovered one of the "consequences of the waitlist" that could "create some momentum to get public policy change." When later pressed on whether it would begin tracking deaths, HHSC's spokesperson said it is still not part of agency plans.
"There's no more fundamental obligation that jails have than to keep the people inside them safe and alive," said Michele Deitch, a distinguished senior lecturer who focuses on criminal justice policy issues and deaths in custody at the University of Texas LBJ School of Public Affairs. "And if we're not tracking what's happening to the people in there, we don't know what's going on inside those jails."
HHSC tells KXAN it is not aware of any other state agency currently tracking deaths on the waitlist – though both the attorney general's office and the TCJS already require sheriff's offices to submit forms or participate in investigations surrounding custodial deaths in jails. While competency may be included in resulting reports, those agencies tell KXAN they do not currently compile that information for analysis. But Deitch suggests it is a simple step they could take, then share with HHSC for tracking.
"The Commission on Jail Standards could be requiring counties to be submitting that information," she said. "Each one of those people who died is a person with a story and people they've left behind who are suffering as a result of this."
When people die in jail, their families can be tied up in lengthy legal battles as they search for answers or seek accountability. Following a shootout with law enforcement that landed him in the Bexar County jail in 2018, Fernando Macias, 61, died after nine months of declining health related to kidney disease and diabetes. Diagnosed with manic depression, schizophrenia and bipolar disorder, Macias had been found mentally incompetent and was awaiting competency restoration treatment.
Two years after Macias' death, his family filed a lawsuit against the county and University Hospital System, alleging they allowed his health to deteriorate. Both entities declined to comment to KXAN on the case. A TCJS death in custody report detailed Macias' repeated refusal of medical services, food and dialysis.
"He wasn't competent to make those kinds of decisions on his health," his brother, Walter Macias, told KXAN. "He died an innocent man, basically, because he was never adjudicated. They needed to get him stabilized to… where he could stand trial."
Just as it did in Carter's case, the TCJS report in Macias' death indicates "no need for further action" among jail staff and "no violation of minimum standards." As of December, the Bexar County Sheriff's Office had yet to provide KXAN with any records related to Macias, though a report filed by the Converse Police Department – part of a statutory requirement to have an outside agency review jail deaths in Texas – mentions the sheriff's own investigation was "complete and thorough."
The case was submitted to the Bexar County District Attorney for further review, but it was rejected for "insufficient evidence" in February 2019. The district attorney's office would not comment on the case due to the ongoing lawsuit against the county, only offering "thoughts and prayers … to the Macias family and those impacted by their passing."
In early 2021, Macias' family also filed a lawsuit against the Texas Department of Public Safety in the death of his 84-year-old mother Amelia, who was shot and killed during the 2018 standoff. DPS was assisting the sheriff's office, which had attempted to serve Macias a mental health warrant at the family's home. According to a heavily-redacted DPS officer-involved shooting investigation, Macias fired at law enforcement and DPS SWAT operators returned fire, striking both Macias and his mother.
DPS denied most records requested by KXAN, citing the ongoing litigation. The agency also declined an interview request but provided a brief statement saying its SWAT team and Macias both fired rounds from .223 caliber rifles – the same rounds that killed Amelia – but they were too fragmented for ballistics testing. DPS said Macias did later "confess to shooting his mother."
But Macias had been found mentally incompetent and was "delusional" after the incident, his brother points out, questioning the validity of that confession and DPS citing it to "shift the blame." Macias faced three counts of attempted capital murder of a police officer before he died.
"I knew that he was not going to be let out," his brother said. "I mean, rightfully so. He was ill and shouldn't be back out. But I always thought that he would find some peace."
Learning HHSC does not track deaths led KXAN to dig deeper into other data mental health advocates say could help spark change – if leaders had an evidence-based grasp of the problems facing people on the waitlist. Along with race and ethnicity, poverty and indigency challenges were most frequently mentioned when it came to the intersection of mental health and the criminal justice system.
"If I'm not independently wealthy, I may have trouble keeping a job and may have trouble making my rent," Frost explained. "Serious unaddressed mental health challenges can lead someone in a downward economic spiral… that certainly could be a trigger to make it worse."
KXAN wanted to know how those aspects factored into the mental competency backlog. But because the state keeps identities on its waitlist secret and does not track socioeconomic backgrounds, we had to analyze district clerk data in specific counties to better understand financial challenges – specifically people who were incompetent to stand trial and could not afford to hire a lawyer. Almost every case, including Macias' and Carter's, met that criteria.
We reviewed incompetent felony defendants in four of Texas' most populated counties to see how many had court-appointed attorneys.
In Travis County between January 2018 and August 2021, 95% of felony defendants found incompetent to stand trial had court-appointed attorneys.
In Bexar County in that same time, 92% of that group was appointed attorneys by the court.
It was 92% in Dallas County.
In Harris County, it was 89%.
Determining whether people had experienced homelessness is more difficult. HHSC admits – since those on the waitlist are not in the agency's care yet – it receives "limited information on them." Court documents are sent to the state hospital once restoration services are available, but they "do not necessarily include details on various socioeconomic factors, such as homelessness or indigence." People finally admitted to state hospitals do receive "complete and accurate" assessments of their demographic profiles – but hundreds of others still waiting in jail do not.
"We've seen how the waitlist can explode very quickly," Glazier said. "Where did all these new people come from? I think the committee would really like to… see if we can get some hard numbers to track. Where are we having the biggest problems? How highly correlated is homelessness to some of the outcomes that we're trying to avoid?"
To answer that, KXAN reviewed felony cases in individual counties able to provide addresses to see if incompetent defendants had also experienced homelessness. Some places, like Travis County, list "homeless," "transient" or the address for Austin's homeless shelter in the data.
In Travis County between January 2018 and August 2021, 527 felony defendants were found incompetent.
Of those, 44% – or 233 individuals – had also experienced homelessness.
In January 2020, an estimated 27,229 Texans experienced homelessness on any given day, according to the U.S. Department of Housing and Urban Developments' Annual Homeless Assessment Report to Congress. That number was the fourth largest in the nation at the time. And the Texas Criminal Justice Coalition cites a national study finding, prior to incarceration, around 40% of people who experienced homelessness reported using mental health services or medications for a mental illness – a statistic twice that of non-homeless incarcerated individuals.
Some mental health advocates predicted those numbers could go up, as Texas continues to criminalize certain aspects of homelessness. In September, a new law went into effect banning homeless encampments in unapproved areas statewide, punishable by a fine of up to $500. And several municipalities across the state already outlawed panhandling. While these charges might not directly land someone in jail, an incident could result in additional charges or it might send people into that "downward spiral" Frost mentioned.
"Sometimes people are arrested to get them off the street because they're a nuisance to somebody who is more powerful," she said. "So, if somebody doesn't need to be in the criminal justice system, where can you divert somebody to something else that will address the needs they are manifesting?"
At the most recent JCAFS meeting in October, members got an overview on this topic from HHSC's Office of Mental Health Coordination – specifically, options for treatment diversion, step-down or small group homes, rapid re-housing and permanent supportive housing for people with severe mental illness who have also come into contact with the justice system. The discussion focused on state funding, staffing issues, regulations and licensing.
While previous meetings largely focused on expanding state hospital services and the number of treatment beds available for people on the waitlist, the committee and presenters indicated the growing need to take a closer look at next steps, including more data sharing and future housing recommendations – even after mental competency treatment is complete and people leave jail.
"I think we need to start with getting an idea of what's available and what's the scope of the problem," Glazier said in the committee meeting. "We'll start exploring to see if it's possible to get some data on this… With stable housing, you can get significantly better outcomes."
Glazier and the committee point to the COVID-19 pandemic as one of the main factors for Texas' waitlist experiencing greater delays in recent years. For 2021, the average wait time for a non-maximum security state hospital bed peaked at 204 days in April. For a maximum-security bed, the highest average wait was 510 days in May. But some people wait even longer.
"In February of 2020, before COVID hit, we were down to 900 (people) on the waitlist, and then… we just went the wrong direction," he said. "COVID has caused a lot of things like beds to go offline, courts to slow down. It's caused a lot of problems, but I'm hoping we're getting past that."
In October, following almost two years of KXAN investigating this topic, a statewide plan to "Eliminate the Wait" surfaced at the Texas Judicial Commission on Mental Health's annual conference. The commission rolled out a partnership with HHSC to "rightsize competency restoration services" across Texas.
Citing a "38 percent increase in people who are found incompetent to stand trial" over the past 20 years, the "state roadmap" includes a toolkit shared "with judges, prosecutors, defense attorneys, sheriffs and jail staff, police, and behavioral health providers to join their collaborative effort to change how Texas serves people at the intersection of mental health and criminal justice."
The effort is primarily aimed at developing new trainings and educational materials "focused on opportunities for diversion to treatment at all points in the criminal justice system" instead of relying so heavily on state hospital expansions and the addition of more beds in those facilities. The trainings are already underway with next steps to include greater focus on rural areas in Texas without as many resources or funding.
"I don't think we'll ever build enough inpatient (state hospital) beds to get the waitlist to zero," Glazier said when asked about the plan. "But if we can use all of those other mechanisms, make them work and target them in the areas where they're the most needed, I think we can make a difference."
This project was made possible through a partnership with the USC Annenberg Center for Health Journalism. In 2021 following their "Locked in Limbo" project on mental competency challenges in Texas jails, KXAN investigators Josh Hinkle and David Barer were chosen to continue their research, participate in the center's National Fellowship and awarded a grant from the Dennis A. Hunt Health Journalism Fund. The fellowship is designed for journalists who want to do groundbreaking reporting on health disparities. The team spent six months working on "Mental Competency Consequences," mentored by veteran journalist and CNN Investigates Senior Writer Bob Ortega. KXAN's Addie Costello, Ben Friberg, Rachel Gale, Eric Henrikson, Eric Lefenfeld, Chris Nelson, Robert Sims, Kate Winkle and Ed Zavala also contributed to the project.