(1) “By holding that before a pretrial facial challenge to the constitutionality of a statute is cognizable, a favorable resolution of the challenge must result in immediate release on all charges in the indictment, the Eighth Court of Appeals has decided an important question of state law that has not been, but should be, settled by this Court. Ex parte Couch, PD-0422-22, pending before the Court of Criminal Appeals. PDR accepted on September 22, 2022. This same issue is also before this Court in a pending Petition for Discretionary Review following a decision with similar reasoning by the Tenth Court of Appeals. See Ex parte Hammons, 646 S.W.3d 929 (Tex. App.—Waco, pet. filed), No. PD-0322-22 (Tex. Crim. App. July 21, 2022).”
(2) “Additionally, by requiring favorable resolution of a pretrial-habeas facial constitutional challenge to result in immediate release on all charges, the opinion below conflicts with this Court’s decisions in Ex parte Meyer, 73 S.W.3d 264 (Tex. Crim. App. 2002); Ex parte Crisp 66 S.W.2d 944 (Tex. Crim. App. 1983); Ex parte Watkins, 73 S.W.3d 264 (Tex. Crim. App. 2002); Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 1994); and Ex parte Perry, 483 S.W.3d 884, 902 (Tex. Crim. App. 2016).”
(3) “The Court of Appeals has decided an important question of Federal Constitutional Law that has not been settled in the State of Texas, whether there is a cognizable due process violation, under the 14th Amendment Due Process Clause to the Federal Constitution, because of the lack of reasonable time restriction from time of the order committing the incompetent to the State Hospital to the time in which the incompetent is actually at the hospital.”
(4) “The Court of Appeals has decided an important question of State Law that has not been settled in the State of Texas—whether Art. 46B.0095 of the Texas Code of Criminal Procedure is violative of 14th Amendment Due Process Clause because of the lack of reasonable time restriction from the time of the order committing the incompetent to the State Hospital to the actual time the incompetent is at the hospital.”
Two months after his arrest, Valero requested a competency evaluation. He was ultimately found incompetent. The trial court ordered him to be committed to the state hospital for 120 days. Because no bed was available at the hospital (and his criminal history required his confinement in a secure facility), he remained in the county jail awaiting transfer. Having been detained for nearly two years since his arrest (and four months since the commitment order), he filed a pretrial writ of habeas corpus arguing that if he could not be immediately transferred he should be immediately released. At the time of the pretrial writ hearing in June 2021, he was number 22 on the waiting list. He argued his detention was a due process violation and that Tex. Code Crim. Proc. art. 46B.0095 is unconstitutional. That statute provides that confinement for competency restoration can last no longer than the maximum penalty for the charged offense (for Valero, 20 years), begins to run from the date of the commitment order, and includes any period that a defendant awaits transfer to a treatment facility. Before the trial court ruled on the writ, Valero was re-evaluated, found competent, but then decompensated and was again ordered committed, at which time he was put at the back of the line awaiting transfer. Valero was ineligible for outpatient competency restoration and was refusing to take medication at the jail. Having no assurance Valero would comply with treatment if he was released, the trial court denied relief.
On appeal, the court of appeals held (1) Valero’s issue was not cognizable on a pretrial writ because granting relief (which the court of appeals saw as an ultimate request for immediate or speedy transfer) would not result in his immediate release, and (2) no due process violation occurred.
Valero notes the two other pending cases involving the cognizability ground: Ex parte Couch and Ex parte Hammons. He argues he is entitled to immediate release as a result of a due process violation and 46B.0095’s failure to impose a reasonable limit on time spent awaiting a transfer. He analogizes his state of limbo to a federal case that held qualified immunity did not protect State actors when a defendant with no reasonable expectation of competency restoration was detained for six years without a civil commitment order. In that case, the State should have either civilly committed the defendant or immediately released him. He cites a prisoner’s substantive due process right not to be detained beyond the expiration of his sentence and federal caselaw that confinement waiting for weeks or months for competency treatment can violate due process because such confinement “bear[s] no reasonable relation to the evaluative and restorative purposes for which courts commit those individuals.” Valero contends his is a bond matter (which is cognizable) because he has been unable to post bond.