All of these individuals must await bed space or community based services before any of by tMlR88

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									                                    No. C-1-CV-07-001182

MICHAEL FIELDS, by his grandparent and           §         IN THE COUNTY COURT
next friend Julian Patterson; §
                                                 §
RONALD CRAWFORD, by his parent and               §
next friend Ruby Crawford; §
        §
DON CITY, by his next friend  §
Keith S. Hampton; and       §
                                                 §
ADVOCACY, INCORPORATED                           §
       §
              Plaintiffs,                        §
vs.                                              §         AT LAW No. 1
       §
DAVID L. LAKEY, M.D, in his official         §
capacity as Commissioner of the Texas        §
Department of State Health Services; and     §
       §
DAVE WANSER, in his official capacity        §
as Deputy Commissioner for Behavioral            §
and Community Health Services, Texas             §
Department of State Health Services, §
                                                 §
               Defendants                        §         TRAVIS COUNTY, TEXAS

                        PLAINTIFFS’ FIRST AMENDED PETITION

       1Plaintiffs,   by and through the undersigned counsel, respectfully file this Amended

Petition, and would show:

                              I. DISCOVERY CONTROL PLAN

       1Plaintiffs intend that discovery in this case be conducted under Level 2 of Rule 190 of

the Texas Rules of Civil Procedure.

                              II. STATEMENT OF THE CLAIM

1.     Plaintiffs Michael Fields, Ronald Crawford, and Don City file this petition for

       declaratory and temporary and permanent injunctive relief, and attorney’s fees and

       costs. Plaintiffs Fields, Crawford, and City, who have been charged with crimes but
     have been found incompetent to stand trial, allege that they have endured and continue

     to endure prolonged and unnecessary confinement in county jails, in violation of their

     due course of law rights, as a result of Defendants’ failure to accept prompt physical

     custody of them and provide them with competency restoration treatment, as required

     by state law. Plaintiff Advocacy, Inc. alleges that a share of its members suffer the

     same injury and deprivation of rights, and Advocacy sues on their behalf.

                          III. JURISDICTION AND VENUE

2.   This Court has jurisdiction over this action pursuant to the Texas Constitution, art. V, §

     8, and the Texas Government Code, §§ 24.007, 24.008, and 24.011.

3.   Venue is proper under the Texas Civil Practice & Remedies Code §§ 15.002(a)(3) and

     65.023, because the Defendants reside in, and their principle office is located in, Travis

     County, Texas.

                 IV. SOVEREIGN IMMUNITY DOES NOT APPLY

4.   The doctrine of sovereign immunity does not bar this action because Plaintiffs seek

     only declaratory and injunctive relief, not damages. The rights of the Plaintiffs and

     others similarly situated have been violated by Defendants’ unconstitutional acts and

     omissions. A suit for declaratory and injunctive relief against a governmental entity

     for violations of the Texas Bill of Rights is exempted from the doctrine of sovereign

     immunity by Article 3, § 29 of the Texas Constitution.

                                       V. PARTIES

5.   Michael Fields is a defendant in a criminal case in the 363rd Judicial District Court,

     Dallas County, Texas. On or about September 27, 2006, Mr. Fields, after being found

     to be a person with mental retardation, was found incompetent to stand trial and was

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     ordered to be committed to the North Texas State Hospital, Vernon Campus, for further

     examination and treatment towards the specific objective of attaining competency to

     stand trial. Despite the criminal court’s order, Mr. Fields has yet to be transported to

     North Texas State Hospital or any other state mental health facility or to the community

     for restoration treatment, and, as a result, he continues to be confined in the Dallas

     County Jail. As permitted by Rule 44 of the Texas Rules of Civil Procedure, Mr.

     Fields’ claim is brought by Julian Patterson, his grandmother and next friend.

6.   Ronald Crawford is a defendant in a criminal case in the 282nd District Court, Dallas

     County, Texas. On or about January 8, 2007, Mr. Crawford was found incompetent to

     stand trial and ordered to be committed to the North Texas State Hospital, Vernon

     Campus, for further examination and treatment toward the specific objective of

     attaining competency to stand trial. Despite the criminal court’s order, Mr. Crawford

     has yet to be transported to the North Texas State Hospital or any other state mental

     health facility or to the community for restoration treatment, and, as a result, he

     continues to be confined in the Dallas County Jail. As permitted by Rule 44 of the

     Texas Rules of Civil Procedure, Mr. Crawford’s claim is brought by Ruby Crawford,

     his mother and next friend.

7.   Don City is a defendant in a criminal case in the County Court at Law No. 3, Travis

     County, Texas. On or about February 1, 2007, Mr. City was found incompetent to

     stand trial and ordered to be committed to a state mental health facility for further

     examination and treatment toward the specific objective of attaining competency to

     stand trial. Despite the criminal court’s order, Mr. City has yet to be transported to

     state mental health facility or to the community for restoration treatment, and, as a

                                           3
      result, he continues to be confined in the Travis County Jail. As permitted by Rule 44

      of the Texas Rules of Civil Procedure, Mr. City’s claim is brought by Keith S.

      Hampton, a criminal defense attorney and next friend.

8.    Plaintiff Advocacy, Incorporated (“Advocacy”) is an independent, private, non-profit

      agency, created by federal law and designated by the Governor of Texas as the federal

      protection and advocacy system for Texas. Advocacy has the authority under federal

      law to pursue legal, administrative, and other appropriate remedies on behalf of Texans

      with disabilities, including those with mental illness, to redress violations of their

      rights, including systemic advocacy to implement changes in the policies, procedures,

      and practices of systems that impact persons with mental illness.          42 U.S.C. §

      10805(a)(1)(B).      Advocacy brings this action for declaratory and prospective

      injunctive relief to require Defendants to change their agency’s polices, procedures, and

      practices to ensure that all persons who have been found incompetent to stand trial

      receive the prompt competency restoration treatment to which they are entitled by law.

9.    Advocacy has both a board, which is comprised in part of persons with disabilities, and

      an advisory council for persons with mental illness, which is comprised in part (60%)

      of individuals who have received or are receiving mental health services or who are

      family members of such individuals. Additionally, Advocacy must give the public an

      opportunity to comment on its priorities and activities. As such, Advocacy represents

      persons with mental illness and provides them the means by which they can protect

      their collective interests.

10.   Further, Advocacy has expended and continues to expend resources advocating on

      behalf of individuals found incompetent to stand trial—but who have been denied

                                            4
      competency restoration treatment—by representing individual clients and by

      advocating at the State and local level for alternatives to hospital-based competency

      restoration treatment. Each of these clients and individuals is a member of Advocacy

      and has suffered, or is continuing to suffer, an injury that would allow him or her to

      bring suit in their own right.

11.   The interests Advocacy seeks to protect are germane to its purpose of advocating and

      protecting the legal rights of all Texans with disabilities. Neither the claims asserted

      nor the declaratory and injunctive relief requested requires the participation of the

      individual members in this suit. The benefits of the relief sought will necessarily inure

      to Advocacy’s members that are in need of competency restoration treatment.

12.   Defendant David L. Lakey, M.D., is currently the duly appointed Commissioner of the

      Texas Department of State Health Services (“DSHS”) and has been delegated the

      administration of that agency.     As Commissioner, Defendant Lakey is ultimately

      responsible for ensuring that DSHS is in full compliance with Texas law, as well as

      agency policies, rules, and regulations.     Defendant Lakey is sued in his official

      capacity and may be served process at the Texas Department of State Health Services,

      1100 West 49th Street, Austin, Texas 78756-3199.

13.   Defendant Dave Wanser is currently the duly appointed Deputy Commissioner for

      Behavioral and Community Health Services at DSHS, and as such he is responsible for

      the delivery of mental health services, including forensic psychiatric services and

      competency restoration treatment, that are provided to individuals committed under the

      Texas Code of Criminal Procedure. As Deputy Commissioner, Defendant Wanser is

      also responsible for ensuring that DSHS is in full compliance with Texas law, as well

                                            5
      as agency policies, rules, and regulations. Defendant Wanser is sued in his official

      capacity and may be served process at the Texas Department of State Health Services,

      1100 West 49th Street, Austin, Texas 78756-3199.

                                   VI. STATE ACTION

14.   Defendants were at all times and in all matters herein material acting under color of

      state law when they subjected Plaintiffs to the wrongs and injuries hereinafter set forth.

15.   Defendants are policymakers for DSHS and, as such, acted under color of state law for

      the purposes of formulating the policies and practices of DSHS implicated under the

      facts of this suit.



                             VI. FACTUAL ALLEGATIONS

16.   Texas law requires that persons who are found incompetent to stand trial either be

      released on bail with supervision, or committed to a mental health facility designated

      by the Department of State Health Services. Tex. Code of Crim. Pro. Art. 46B.071.

      The purpose of a commitment to a mental health facility is to obtain restorative mental

      health treatment so that the person can regain competency to stand trial. Each person

      found incompetent to stand trial and who is not released on bail is committed by the

      criminal court to a state mental health facility (i.e., a forensic commitment). Tex.

      Code of Crim. Pro. Art. 46B.073.

17.   On information and belief, persons found incompetent to stand trial (“IST”) are not

      being promptly accepted by DSHS for competency restoration treatment, and instead

      are routinely spending weeks or months confined in county jails.

18.   On information and belief, as of September 2006, persons found IST and committed to

                                             6
      a mental health facility by a criminal court were instead confined to a jail an average of

      60 to 75 days awaiting acceptance by DSHS for a forensic bed (i.e., a state hospital bed

      that can be used for a forensic commitment).           Such persons remain improperly

      incarcerated because DSHS fails to provide prompt competency restoration treatment

      either in the community or in a state mental health facility.

19.   Defendants know that persons found IST and committed to their care and custody are

      instead being incarcerated in jails, without needed treatment. Jails are not designed to,

      and do not provide the competency restoration treatment required by and due to

      Plaintiffs. Nevertheless, Defendants knowingly, intentionally, and deliberately refuse

      to permit county sheriffs to transport individuals found IST to state mental health

      facilities, in contravention of the requirements of Chapter 46B of the Code of Criminal

      Procedure and the orders of the criminal courts.

20.   Defendants and DSHS are also aware that the forensic patient population in Texas has

      almost doubled between 2001 and 2006, and that it continues to increase. Despite this

      increase, on information and belief, DSHS has capped the number of state hospitals

      beds that can be used for forensic commitments at or about 738, thereby causing

      persons found IST to languish in jails without receiving needed competency restoration

      treatment.

21.   To ensure that DSHS’s cap on forensic commitments is not exceeded, as of February

      2006, DSHS implemented a new process that requires all court orders requiring a

      person found IST to be treated for competency restoration to first request admission

      and services from the DSHS State Hospital Forensic Admissions Clearinghouse

      (“Clearinghouse”).    This Clearinghouse (or waiting list) makes all admissions to

                                             7
      DSHS forensic services contingent on the availability of space in the forensic system.

22.   Due to DSHS’s cap on forensic beds, as of January 2007 it was reported that there were

      about 100 individuals confined in jails seeking admission into a forensic bed in a state

      mental health facility. About one third of these individuals are allegedly non-violent

      offenders who could be committed to the community for restoration services; about

      two-thirds are allegedly violent offenders who will be scheduled for admission to the

      Maximum Security Unit at North Texas State Hospital in Vernon.               All of these

      individuals must await bed space or community-based services before any of them will

      be able to begin their competency restoration treatment.

23.   Due to DSHS’s delay in providing competency restoration treatment, individuals found

      IST spend weeks or months improperly incarcerated in jails, without treatment. Jails

      are a punitive setting, are significantly more restrictive than a state mental health

      facility, and do not have the resources or ability to provide the treatment necessary to

      restore the competency of a person found IST.

24.   The delay in receiving competency restoration treatment also necessarily extends the

      time within which an individual can be tried once restored to competency or have their

      charges dismissed after it is determined that there is no substantial probability that, in

      the foreseeable future, the individual will regain the competency to stand trial.

25.   The delay in transfer for treatment also necessarily results in a delay of the statutorily

      required evaluation that is given to determine whether there is a substantial probability

      that, in the foreseeable future, the individual will regain competency to stand trial.

      Such a delay in evaluation can cause additional delay in being returned to court, where

      a bail application can be made.

                                             8
26.   Plaintiff Michael Fields is a defendant in a criminal case in the 363rd Judicial District

      Court, Dallas County, Texas. On or about September 27, 2006, Mr. Fields, after being

      found to be a person with mental retardation, was found incompetent to stand trial and

      was ordered to be committed to the North Texas State Hospital, Vernon Campus, for

      further examination and treatment towards the specific objective of attaining

      competency to stand trial. Despite the court’s order, which was issued almost five

      months ago, Mr. Fields has yet to be transported to Vernon, any other state mental

      health facility, or to the community for competency restoration treatment, and, as a

      result, he continues to be incarcerated in the Dallas County Jail. Mr. Fields receives

      no competency restoration treatment in Jail.

27.   Plaintiff Ronald Crawford is a defendant in a criminal case in the 282nd District Court,

      Dallas County, Texas.     On or about January 8, 2007, Mr. Crawford was found

      incompetent to stand trial and ordered to be committed to the North Texas State

      Hospital, Vernon Campus, for further examination and treatment toward the specific

      objective of attaining competency to stand trial.      Despite the court’s order, Mr.

      Crawford has yet to be transported to Vernon, any other state mental health facility, or

      to the community for competency restoration treatment, and, as a result, he continues to

      be incarcerated in the Dallas County Jail.               Mr. Crawford receives no

      competency-restoration treatment in Jail.

28.   Plaintiff Don City is a defendant in a criminal case in the County Court at Law No. 3,

      Travis County, Texas. Plaintiff City was charged with the Class B misdemeanor

      offense of criminal trespass and detained in the Travis County Jail on January 22, 2007.

      On or about February 1, 2007, Mr. City was found incompetent to stand trial and

                                            9
      ordered to be committed to a state mental health facility, for further examination and

      treatment toward the specific objective of attaining competency to stand trial. Despite

      the court’s order, Mr. City has yet to be transported to a state mental health facility, or

      to the community for competency restoration treatment, and, as a result, he continues to

      be incarcerated in the Travis County Jail. Mr. City receives no competency-restoration

      treatment in Jail.

29.   As a direct and proximate result of the foregoing, the individual Plaintiffs and other

      persons found incompetent to proceed to trial have been deprived, and will continue to

      be deprived, of their freedom without due course of law, in violation of their

      constitutional rights.

                               VI. IRREPERABLE HARM

30.   As a direct and proximate result of the foregoing, the individual Plaintiffs and other

      individuals awaiting competency restoration services, have suffered, continue to suffer,

      and will likely suffer in the future grievous, imminent, and irreparable harm as a result

      of Defendants’ failure or refusal to provide them with prompt competency restoration

      treatment. Such harm stems from, but is not limited to, the fact that, as a result of the

      Defendants’ failure to provide them with prompt competency restoration treatment,

      they have suffered a significant loss of liberty and undue restraint by being

      unnecessarily and unlawfully confined in county jails, in violation of their statutory and

      constitutional rights. Also, without the provision of prompt competency restoration

      treatment, the time within which Plaintiffs and other similarly situated either regain

      competency to stand trial or have their charges dismissed will be significantly delayed.

31.   Plaintiffs have no adequate remedy at law, or otherwise, to prevent Defendants from

                                             10
      denying and continuing to deny prompt competency restoration treatment. Plaintiffs

      have suffered and will continue to suffer imminent and irreparable harm, that is, the

      loss of liberty, undue restraint, and physical and emotional injury as a direct and

      proximate result of the acts and omissions of Defendants, unless Defendants are

      enjoined from further denying prompt competency restoration treatment to Plaintiffs

      and other individuals found IST.

32.   Because of the nature of the relief sought by Plaintiffs, it is requested that the Court

      order a minimal bond.

                 VIII. CAUSE OF ACTION: DUE COURSE OF LAW

33.   Plaintiffs hereby incorporate by reference paragraphs 1 through 32 of this petition.

34.   Defendants, acting under color law, intentionally and with deliberate indifference

      deprived Plaintiffs of their constitutional rights without due course of law, by failing to

      accept prompt custody of Plaintiffs and others similarly situated, and by failing to

      promptly provide them with competency restoration services. Defendants’ deliberate

      indifference to the welfare and rights of Plaintiffs and others similarly situated has

      directly and proximately caused them harm.

35.   Due course of law requires that the nature and duration of confinement must bear

      reasonable relation to the purpose for which the individual is confined.           Once a

      criminal defendant is found incompetent to stand trial, the only lawful purpose of

      confinement is to provide prompt competency restoration treatment, which will give

      the individual a realistic opportunity to be restored to competency.          Defendants,

      however, have failed and continue to fail to promptly provide needed competency

      restoration treatment to individuals found incompetent to stand trial. As a result, such

                                             11
      individuals languish in county jails for months, without receiving needed competency

      restoration treatment, in violation of the due course of law provisions of the Texas

      Constitution.

                                IX. INJUNCTIVE RELIEF

36.   Plaintiffs request that, after notice and hearing, this Court enter a temporary and

      permanent injunction requiring Defendants to promptly accept physical custody of

      Plaintiffs Fields, Crawford, and City, and all other persons found incompetent to stand

      trial, and provide them competency restoration treatment either at a state mental health

      facility or other treatment location within a reasonable period of time, not to exceed

      three (3) days.

                              X. DECLARATORY RELIEF

37.   Pursuant to the Texas Civil Practice and Remedies Code, §§ 37-001-37.011, Plaintiffs

      seek a declaratory judgment that the Defendants’ policies, procedures, and practices

      have deprived Plaintiffs of the prompt competency restoration treatment to which they

      are entitled without due course of law, in violation of the Texas Constitution.

                        XI. EXCLUSION OF FEDERAL CLAIMS

38.   Plaintiffs hereby give notice that they only allege state claims in this suit and

      specifically exclude, and do not intend to litigate, any federal cause of action. The

      only cause of action Plaintiffs intend to litigate in this Court concerns rights arising

      under the laws and Constitution of the sovereign State of Texas.

                                       XII. PRAYER

      THEREFORE, Plaintiffs respectfully requests this Court to:

(1)   Enter judgment against Defendants;

                                             12
(2)    Declare that Defendants’ policies, procedures, and practices of denying prompt

       competency restoration treatment to persons found incompetent to stand trial within a

       reasonable period of time violates Plaintiffs’ due course of law rights, as guaranteed by

       the Texas Constitution;

(3)     Enjoin Defendants from failing to promptly accept physical custody of Plaintiffs, and
all other current and future pre-trial detainees found IST, and from failing to provide prompt
competency restoration treatment either at a state mental health facility or other treatment
location within a reasonable period of time, not to exceed three (3) days.
(4)    Award Plaintiffs their reasonable attorney’s fees and costs; and

(5)    Grant all such other relief, in law or in equity, to which Plaintiffs may be entitled.

                                                      Respectfully submitted,


                                                      __________________________________
___
       BETH MITCHELL
       State Bar No. 00784613

                                                      PETER HOFER
                      State Bar No. 09777275
                                                      ADVOCACY, INCORPORATED
       7800 Shoal Creek Boulevard
       Suite 171-E
       Austin, Texas 78757
       (512) 454-4816 (Phone)
       (512) 454-3999 (Fax)

                                                      ATTORNEYS FOR PLAINTIFFS




                                               13
                              1CERTIFICATE         OF SERVICE

       This is to certify on this 15th day of February, 2007, that a true and correct copy of the

foregoing document was mailed by certified mail, return receipt requested and facsimile to

Robert O’Keefe, Assistant Attorney General, General Litigation Division, Post Office Box

12548, Austin, Texas 78711-2548.


                                                     __________________________________
___
                                                     BETH MITCHELL




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