Transforming the Judiciary

An update from the Texas Judicial Commission on Mental Health.

Written by Stacey M. Soule

Legal and mental health law scholar Elyn R. Saks offers this truism: “[T]he humanity we all share is more important than the mental illnesses we may not.” Behavioral health difficulties?including mental illness,¹ substance use disorders,² and intellectual and developmental disabilities, or IDD³?require society’s consideration and compassion. Inevitably, everyone will encounter a person who suffers from or experiences a behavioral health challenge.⁴ Our justice system must account for this; it’s no longer sustainable to think of our system as an indifferent institution divorced from the diverse individuals it serves. Further progress is within reach by prioritizing education, intervention, diagnosis, treatment, rehabilitation, and recovery. To that end, the Texas Judicial Commission on Mental Health, or JCMH, has been a leader and innovator in integrating behavioral health principles into judicial operations.

The JCMH, created in 2018⁵ and now chaired by Texas Supreme Court Justice Jane Bland and Court of Criminal Appeals Judge Barbara Hervey, bears the distinction of being among the first judicially initiated commissions nationally. It stands as an inspiration and model for other states and marks the first time Texas’ two high courts have undertaken a joint endeavor to engage an array of stakeholders.⁶ Justice Bland explains its guiding purpose: “The JCMH mission begins with the judiciary. We convene court participants and professionals from across mental health disciplines to share knowledge and to work to improve the justice system for those affected by mental health challenges.”⁷

Simply distilled, the JCMH is driven to “Collaborate. Educate. Lead.”⁸ According to Executive Director Kristi Taylor, this three-part mission has led the JCMH “think tank” to work toward “connect[ing] the right people to treatment rather than jail while preserving community safety” by “diverting” non-violent adults and youth with behavioral health issues to “a less restrictive, more healing environment.”⁹ Throughout its commitment to “break down silos”¹⁰ by fostering the exchange of information among stakeholders, Justice Bland points out that the JCMH “provide[s] judges, lawyers, and mental health professionals with the resources and tools they need to address this demanding and highly specialized area of the law.”¹¹

Bench Books and Workshops: Introducing the Texas Sequential Intercept Model
Texas Mental Health and Intellectual Developmental Disabilities Law and its juvenile edition counterpart, part of the JCMH Bench Books series, introduce the Texas Sequential Intercept Model, or SIM.¹² The SIM “illustrates how people with behavioral health needs come into contact with and flow through the criminal justice system.”¹³ The SIM’s continuum starts with public health, acknowledging that strategies for dealing with behavioral health begin with public outreach and awareness. As Judge Hervey states, it’s critical to “understand the community’s needs before the judicial system is implicated.”¹⁴ The SIM continuum advances as follows:

Soule Graph ¹⁵

Incorporating substantive and procedural law, the books provide “practice tips and suggestions for implementing best practices” for each point along the continuum.¹⁶

The JCMH, in partnership with Texas Health and Human Services Commission, or HHSC, Behavioral Health and Justice Technical Assistance Center also offers SIM mapping workshops or in-person action planning.¹⁷ The workshops “help counties map out their gaps and opportunities for growth, the resources they already have, and the resources they would like to create.”¹⁸ The JCMH later produces a county-specific report to “help them formulate an action plan to accomplish the goals they set[.]”¹⁹

Competency Restoration: Eliminate the Wait
Texas Court of Criminal Appeals Judge Jesse F. McClure III, a JCMH deputy liaison, said:

“During my tenure on the trial bench, I became acutely aware of the number of individuals that had been waiting months, and sometimes even years, for services necessary to restore competency. The Eliminate the Wait initiative is critical in not only assisting those individuals needing mental health services, but also helps with the movement of cases through the justice system.”²⁰

Competency²¹ restoration services are “scarce,” with over 2,000 people waitlisted.²² There are only 18 outpatient sites statewide and seven jail-based programs.²³ “[R]estoration services have a narrow focus on stabilization, symptom management, and required legal education.”²⁴ Eliminate the Wait is the JCMH’s and HHSC’s effort to “right size” competency restoration with a series of checklists.²⁵ The Eliminate the Wait toolkit contains action items for judges and court staff, prosecutors, and defense attorneys, describing their respective roles.²⁶ Uniform strategies include, inter alia, early identification of restoration opportunities, promoting diversion, finding alternatives to state hospitals when needed, and education and awareness.²⁷

Putting the Eliminate the Wait action items into practice, the JCMH and HHSC instituted and funded a pilot program to install a community diversion coordinator in Denton, Grayson, and Smith counties.²⁸ The coordinator works with local stakeholders to foster cooperation and identify diversion opportunities along the SIM. Additionally, the coordinator helps judges and attorneys navigate alternatives to jail.²⁹ The program “place[s] a stronger emphasis on public safety and prevention of deterioration, quicker interventions, and a greater emphasis on maintaining outpatient compliance with treatment.”³⁰

The JCMH’s Creating a Mental Health Court Program 10-step guide complements its Eliminate the Wait campaign. Mental health “courts use assessments, individualized treatment plans, and judicial monitoring to address both the mental health needs of individuals and public safety concerns of the local community.”³¹ The guide can be applied to different types of court proceedings and tailored to have “varying goals, target participants, program conditions, [and] treatment options[.]”³² Each step includes objectives that are accompanied by matching resources,³³ and the JCMH offers assistance to navigate this process.³⁴

Energizing Through Synergy: The Annual Judicial Summit on Mental Health
The JCMH sponsors a free summit, bringing together over 1,500 stakeholders to connect, obtain resources, and learn.³⁵ This year, the JCMH is promoting the participation of at least one representative per county through its the Whole Body, Whole Mind, Whole Texas Challenge. The summit, which will be in person and virtual, will be held November 2-4 and will feature SIM-patterned programs like:

Multidisciplinary Response Team
Assisted Outpatient Treatment Courts
Effectively Using Civil Law & Community Services in Mental Health and IDD Cases
Incorporating Trauma Informed Care into Juvenile Probation, Courtrooms, and the Texas Juvenile Justice Department
The Intersection of the Texas Education Agency, Schools, and Juvenile Justice
Developing Outpatient Treatment Courts and Jail-Based Competency Restoration Programs³⁶

Taylor said that the summit’s primary goal is to “educate and motivate our state’s legal and mental health professionals who work hard to correct the overrepresentation of people with mental illness in the criminal justice system.”³⁷

Compilation of Codes
Practitioners have learned that even specialized areas of the law are often spread among several different Texas codes. Even with the ease of online research, this can make statutory research frustrating, particularly when getting acquainted with a topic or when expediency is required. For behavioral health-related statutes, the JCMH has simplified this process with its online and hardcopy publication titled Texas Mental Health and Intellectual Disabilities: Selected Statutes and Rules. The book compiles statutes from various codes.³⁸

Legislative Resource
In its second year, the JCMH moved into the legislative sphere with the inception of its Legislative Research Committee, which concentrates on “helping to change the landscape of mental health law[.]”³⁹ Its 2020 proposals were adopted by the Texas Judicial Council’s Criminal Justice Committee as recommendations to the 87th Legislature.⁴⁰ Most of those proposals now govern areas like psychiatric jail stabilization, time periods for competency orders, and deadlines for competency evaluations and jail-based competency restoration.⁴¹ New proposals are in the pipeline.⁴²

Upcoming Texas County Map Resource Guide
Judge Barbara Hervey published the first Texas Mental Health Resource Guide, cataloguing resources and services by type available in Texas.⁴³ Building on this, the JCMH launched an interactive map of resources in each county that is organized under the SIM in early 2022.⁴⁴ The data entry of county-specific programs and resources is underway and expected to be substantially completed by the end of the year.⁴⁵

More on the Horizon
The JCMH has observed how a person’s successful completion of mental health court programs often hinges on the sincere interest and positive reinforcement from a judge who monitors the case from start to finish.⁴⁶ The JCMH hopes to increase support by connecting courts, and ultimately offenders, with peers who have graduated from those programs.⁴⁷

The JCMH also plans to expand its reach by generating online educational videos and supporting telehealth use in jails and video conferencing as an option for persons in treatment who may be too “fragile” to transport.⁴⁸

Finally, the JCMH is currently participating in roundtable discussions with the Texas Children’s Commission on the crossover between child welfare, criminal law, and behavioral health. The commissions are expected to make joint recommendations.⁴⁹

Conclusion
The JCMH’s final “learning point” from its 2021 summit stated, “Be bold. Rather than doing business ‘the way it has always been done,’ challenge the system, adjust programs and policies to accomplish stated goals, and act with purpose to solve the real problem.”⁵⁰ This is exactly what the JCMH has done; it has begun to transform judicial services into a system better prepared to serve behavioral health problems.

To bolster your community’s transformation, you can request help from the JCMH’s Jurist-in-Resident Judge John Specia, Executive Director Taylor, or a staff member.^TBJ

STACEY M. SOULE
has served as the state’s 15th state prosecuting attorney since December 2016, after having been an assistant state prosecuting attorney. Before that, she was a research attorney to Texas Court of Criminal Appeals Judge Michael E. Keasler, a central staff attorney at the Texas Court of Criminal Appeals, and an assistant attorney general.

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